Think Again: Stanley Fish

July 8, 2007, 8:32 pm
Clarence Thomas Is Right
Tags: Bong Hits 4 Jesus, Morse v. Frederick, student rights, Supreme Court

On June 25th the Supreme Court held in Morse v. Frederick that it was all right to discipline a high school student because he and some of his friends had unfurled a banner reading “Bong Hits 4 Jesus” at a school-sponsored event.

The facts are not in dispute. When the principal of the school, Deborah Morse, asked the students to take the banner down, one of them, Joseph Frederick, refused. He was suspended and his suspension was upheld by the school superintendent, who cited a board policy prohibiting any form of expression that “advocates the use of substances that are illegal to minors.” Mr. Frederick then filed suit, alleging that his first amendment rights had been violated. A three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed with him, but the Supreme Court reversed by a 5-to-4 vote, and held for Principal Morse.

The Court’s discussion unfolds under the shadow of a 1969 case, Tinker v. Des Moines Independent Community School District, the key sentence of which declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Not that students are free to say or express anything they like. The test, the Court said in Tinker, is whether the speech in question can be said to “materially and substantially disrupt the work and discipline of the school.” In 1969, students had worn black armbands signifying their opposition to the Vietnam War. Applying the test it had just formulated, the Supreme Court held that since no such disruption was documented, the speech was protected.

The majority opinion in Frederick, written by Chief Justice John Roberts, ducks the disruption issue and bases its holding on the school’s right and responsibility to educate “students about the dangers of illegal drugs.” After all, it reasoned, “Tinker is not the only basis for restricting student speech,” citing to Bethel School District v. Fraser’s declaration that “the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings” (1986).

The minority opinion, written by Justice John Paul Stevens, challenges on two points. By singling out speech about drugs as a proper object of regulation, the majority “invites stark viewpoint discrimination,” a constitutionally suspect disfavoring of a message simply because of its content. Moreover, the minority adds, it’s not at all clear what the message was or even that there was a message. Mr. Frederick asserted that he wasn’t advocating anything; the sign was meaningless; the only thing he intended (or hoped for), he said, was to get himself on television.

The majority ignores Frederick’s account of his own intention, and insists that it is enough that the interpretation of his intent by Principal Morse was “a reasonable one.” The minority replies that, “The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy.”

And so it goes, back and forth.

But Justice Clarence Thomas isn’t having any. He concurs with the majority in its holding for Principal Morse, but he rejects the context within which both the majority and the minority make their points. In short, he rejects Tinker and the idea that schoolchildren have any First Amendment rights at all. Why? Because “originally understood, the Constitution does not afford students a right to free speech in public schools.”

Thomas argues from both history and principle: “In the light of the history of American public education, it cannot seriously be suggested that the First Amendment ‘freedom of speech’ encompasses a student’s right to speak in public schools.” Early public schools, Thomas reports, “were not places for freewheeling debates or explorations of competing ideas.” Rather, schools were places where teachers “relied on discipline to maintain order.”

And this view of what properly goes on in public schools was confirmed in the rulings of state courts in Vermont, Connecticut, Maine, Alabama, Tennessee, Kentucky, Indiana, North Carolina, California and Missouri, among others. It is only since Tinker — which, Thomas contends, “effected a sea change” in this area of law — that we have been troubled by talk of students’ speech rights. (One suspects that Thomas is uneasy about the expansion of First Amendment rights in general. As recently as 1942, in Chaplinsky v. New Hampshire, the Court was able to rehearse a paragraph-long list of forms of speech that did not rise to the level of constitutional notice. That paragraph could not be written today.)

Although Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that “teachers taught and students listened, teachers commanded and students obeyed,” he comes across as someone who shares that understanding.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

One reason that students (and many others) have come to believe that they have these rights is a confusion between education and democracy. It is in democratic contexts that people have claims to the rights enumerated in the constitution and other documents at the heart of our political system – the right to free speech, the right to free assembly, the right to determine, by vote, the shape of their futures.

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy – the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

What this means is that teachers don’t have First Amendment rights either, at least while they are performing as teachers. Away from school, they have the same rights as anyone else. In school, they are just like their students, bound to the protocols of the enterprise they have joined. That enterprise is not named democracy and what goes on within it – unless it is abuse or harassment or assault – should not rise to the level of constitutional notice or any other notice except the notice of the professional authorities whose job it is to keep the educational machine running smoothly.