An unreasonable argument against student free speech

Educational Theory

Volumn 59, Issue 2, 2009, Pages 123-143

  Blacker, David ^a  

^a UNIVERSITY OF DELAWARE   (United States)

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EID: 66449090121     PISSN: 00132004     EISSN: 17415446     Source Type: Journal    
DOI: 10.1111/j.1741-5446.2009.00310.x     Document Type: Article

References (43)

1. Morse v. Frederick, 127 S. Ct. 2618 (2007).
2. Wallace v. Jaffree, 472 U.S. 38 (1985).
3. Jan Crawford Greenberg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin Books, 2007), 118.
4. New Jersey v. TLO, 469 U.S. 325 (1985), Vernonia School District v. Acton, 515 U.S. 646 (1995), and Board of Education v. Earls, 536 U.S. 822 (2002).
5. Goss v. Lopez, 419 U.S. 565 (1975).
6. Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990), which upholds the federal Equal Access Act (1984).
7. Reynolds Holding, "Ruling 'Bong Hits' Out of Bounds," Time (June 25, 2007); http://www.time.com/time/nation/article/0,8599,1637131,00.html.
8. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
9. There is one more preliminary consideration for whether expression is eligible for constitutional protection that will be addressed later in the essay.
10. The classic work on the capitulation of school administrators to noneducational interests is Raymond E. Callahan, Education and the Cult of Efficiency (Chicago: University of Chicago Press, 1962).
11. Originally from Justice Oliver Wendell Holmes, the "marketplace of ideas" metaphor used in Tinker quotes Justice William Brennan's majority opinion in Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967): "'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, 364 U.S. 479, 487 (1960). The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'"
12. James E. Ryan, "The Supreme Court and Public Schools," Virginia Law Review 86, no. 7 (2000): 27. Ryan continues, "In short, the Court's approach can be defended, at least generally, on the grounds of necessity. Schools need some constitutional room to achieve their goals, and the Court needs to ensure that students do not shed all of their constitutional rights at the schoolhouse door. A defensible way to resolve this dilemma is to identify the core, universal function of schools, and to use this function as a guide to determine the circumstances in which schools will be granted deference."
13. Section 894 (Article 94) of the Uniform Code of Military Justice reads in pertinent part: "Mutiny or Sedition: (a) Any person subject to this chapter who - (1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny.... (b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct."
14. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
15. Supreme Court Justice Potter Stewart once famously (or infamously) admitted the difficulty in defining pornography, but then added, "I know it when I see it." This is, of course, as Potter himself later recognized, untenable as a legal standard. See Jacobellis v. Ohio, 378 U.S. 184 (1964).
16. An additional area of concern involves the potential advocacy of violence, particularly in this post-Columbine and 9/11 era of heightened school safety concerns. There are probably too many gray areas here, but generally speaking the judgment will be whether the alleged threat contained in the message is established as real and direct enough. So, for example, a school would be on firmer ground disallowing a "KKK" symbol than it would a message bearing the words "white power," because the Ku Klux Klan has an unambiguous track record of intimidation and violence, whereas the "white power" message, however obnoxious, does not have that level of specificity. The analysis in such cases is really that due to the the threat of violence it carries, the message constitutes conduct rather than speech, and therefore it is outside the scope of First Amendment protection. Allowing state statutes prohibiting cross burning, the Court directly affirms the threat-like nature of this practice in Virginia v. Black et al. 538 U.S. 343 (2003).
17. Bethel v. Fraser, at 683.
18. Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).
19. Tinker, at 512.
20. An exception might be where the "educational purpose" of the field trip is inherently very broad, for example, a trip to see a political candidate or governmental official who, by virtue of his or her position (or sought position), is legitimately the object of many kinds of citizens' grievances or "petitions." For this reason, an event such as one where school students are sent to watch a presidential motorcade might be thought to constitute more of a public forum.
21. Contrary to the opinion of Justice Breyer's interesting Morse dissent, which centers around both the potential ambiguity of Frederick's banner and his (rightful) concern that the majority opinion could be construed as prohibiting students from protesting matters of public concern, such as whether or not, say, tobacco or marijuana ought to be legal. So could a student advocate a change in drug laws? This is a difficult issue, not fully addressed anywhere in the opinion, including in Breyer's dissent. On the one hand, one can share Breyer's concern for the need for robust debate about what our laws should be even - and perhaps especially - in controversial areas. Yet the special setting of schools gives rise to singular problems, where psychological and civic immaturity could enhance an implied threat of violence. What if a student wanted to express the view that, say, rape or antilynching laws ought to be eliminated? In such a case, we might not be so confident about the distinction between advocating illegal activity itself and advocating for a change in the law. Perhaps some laws are so basic to civil order and personal security that advocating overturning them can implicitly contain a threat against a defined group. Of course context could be all-determining here. One can very easily imagine a reasoned discussion about some aspect of rape laws as opposed to, say, an in-your-face and sloganeering "rape should be legal!" statement directed by a male student specifically at female classmates. Though formally advocating a change in laws rather than the illegal behavior itself, such an alarming situation might even be appropriately considered to be "disruptive" under the Tinker test.
22. Morse, slip. op. at 2.
23. Morse, slip. op. at 3.
24. Timing is crucial in jurisprudence. While it is not in itself unreasonable to question whether something has a constitutional basis, it is unreasonable to reject out of hand that basis where there is a well-established line of precedent. Thomas's argument would have been reasonable (though perhaps wrong) in 1969, just as Justice Hugo Black's Tinker dissent was reasonable at the time. The Court does change course and reverse itself from time to time. But even the majority opinions associated with dramatic reversals usually offer some legal rationale for how the reversal is not really a reversal but is somehow consistent with the relevant Court case law. (For example, Brown v. Board of Education, 347 U.S. 483 [1954] overturned Plessy v. Ferguson, 163 U.S. 637 [1896] on the constitutionality of de jure racial segregation on the premise that since education had become more important in 1954 than it was in 1896, it was now worthy of Fourteenth Amendment consideration.) This is wholly rational for an institution whose legitimacy derives in large part from stare decisis obedience to precedent.
25. Morse, slip. op. at 1.
26. Connecticut in 1818 became the final state to abandon an official establishment of religion. See Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill: University of North Carolina Press, 1994), 49.
27. Morse, slip. op. at 3.
28. Jonathan Zimmerman, "Got Discipline?" Los Angeles Times, June 28, 2007; http://www.latimes.com/news/opinion/commentary/la-oe-zimmerman28jun28, 1,6696557.story.
29. Morse, slip. op. at 3.
30. Aside from the area directly concerning school-sponsored religious exercises (which has a complicated post-World War II history), the only direct students' rights precursor to Tinker would be the sort of beachhead of freedom of conscience in circumscribed areas, most notably the right to opt out of the Pledge of Allegiance (West Virginia State Board of Education v. Barnette, 319 U.S. 624 [1943]). Realizing this, Thomas would probably want to set back the clock a few decades earlier, at least to the 1930s.
31. Tinker, at 510.
32. Clarence Thomas, quoted in Adam Liptak, "Reticent Justice Opens Up to a Group of Students," New York Times, April 14, 2009, A11.
33. Svetlana Boym, The Future of Nostalgia (New York: Basic Books, 2001), xviii.
34. Ibid., 49.
35. Ibid.
36. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (New York: Verso, 1991).
37. Boym, The Future of Nostalgia, 41.
38. Ibid., 42.
39. One blogging wit posts: "You can almost picture Thomas with a paddle in his hand, ordering some mischievous child of yore to bend over for a good, compassionate Republican spanking. Thomas's ideal school seems to be Dotheboys Hall in Nicholas Nickleby." See http://nomorehornets.blogspot.com/2007/06/ bong-hits-4-thomas.html.
40. Thomas seems to suggest as much in his recent autobiography, My Grandfather's Son: A Memoir (New York: Harper, 2007). In his review of this book, William Grimes writes that Thomas "portrays himself as a persecuted, almost Christlike figure singled out by the liberal establishment, at the behest of his civil rights enemies, not just for criticism but also for total annihilation" (Grimes, "The Justice Looks Back and Settles Old Scores," New York Times, October 10, 2007; http://www.nytimes.com/2007/10/ 10/books/10grim.html). If, following Boym, a conspiracy-seeking mindset is a key indicator of a dangerous form of restorative nostalgia, the paranoia evident from Thomas's own pen certainly makes him look worse in this regard. (However germane it may be to the nostalgia discussion, one should be mindful that Thomas's autobiography, where he speaks merely as "a book author," is, strictly speaking, irrelevant to the legal hermeneutics argument.)
41. I myself make an argument along these lines in David Blacker, Democratic Education Stretched Thin: How Complexity Challenges a Liberal Ideal (Albany, New York: SUNY Press, 2007), 26-28.
42. Svetlana Boym, "Nostalgia and Its Discontents," The Hedgehog Review 9, no. 2 (2007): 9.
43. Friedrich Nietzsche, Birth of Tragedy, trans. Walter Kaufmann (New York: Vintage, 1967), 18.