Thomas's concurring opinion supports choice, local control in education

By Bryan Fischer

The clearest constitutional thinking on the U.S. Supreme Court is being done by Clarence Thomas. Of all nine justices, he consistently is the most committed to respecting the original intent of the Constitution and American history in staking out his position on each case that comes before the Court.

In last week's "Bong Hits 4 Jesus" decision, Thomas concurred with the majority in ruling in favor of the ability of school officials to establish disciplinary policy for their own schools.

But Thomas went further and correctly argued that the Constitution gives neither the federal government nor the Supreme Court any warrant at all to meddle in the affairs of local schools. Establishing school policies — including what kind of speech should be permitted on school grounds — should be a matter for local school districts, not judges, to decide. (His concurring opinion can be found on pp. 19-31 of the Court's ruling, which you may access at the link below.)

Thomas observes that the First Amendment was never intended originally to "permit all sorts of speech." (It was intended to protect political speech, not pornography, profanity, etc.) Further, the history of public education in America indicates that the First Amendment was never understood to protect student speech in public schools.

Says Thomas bluntly and correctly, "As originally understood, the Constitution does not afford students a right to free speech in public schools." He adds, "I see no constitutional imperative requiring public schools to allow all student speech."

He reminds us that early public schools were founded as substitutes for families who could not afford private schools, but no one doubted that public school authorities possessed the same authority private school authorities did to instill a "core of common values" (such as subordination to lawful authority, self-control, and delayed gratification) in students.

Schools operated "in loco parentis" — that is, in the place of parents — because parents, according to Blackstone, essentially delegated part of their parental authority to the tutor or schoolmaster, which included the power of "restraint and correction." The teacher in essence was the "substitute of the parent."

This authority, loaned to the school by the parent, included authority to discipline students for speech (or conduct) that interfered with the school's educational mission, a discipline which permitted even corporal punishment as long it was not extreme. Students could appropriately be "punished for idleness, talking, profanity, and slovenness."

Thomas cites an earlier opinion from liberal justice Hugo Black, who pointed out that granting students free speech rights would simply subject "all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students." In essence, Black predicted, granting students free speech rights would take control of America's public schools from parents and teachers and hand it over to public school students themselves.

Thomas argues for a return to local control. "Local school boards, not the courts, should determine what pedagogical interests are 'legitimate' and what rules 'reasonably relate' to those interests."

The result of granting students free speech rights has been that we now "accept defiance, disrespect, and disorder as daily occurrences in many of our public schools."

The bottom line, in my judgment, is that we should return full authority to local school officials to decide matters of what student speech will or will not be permitted, and take these decisions away from the judiciary.

We should do all we can to maximize parental choice, so parents who are unhappy with speech restrictions in one school can find a setting more in line with their own standards.

Further, by returning authority to school officials, we can allow each school, or school district, to decide its own guidelines regarding what kind of speech — including academic speech — will be permitted on school grounds.

Some will put the Ten Commandments back up on the walls of their classrooms; some won't. Some will reintroduce daily Bible readings into the school setting, others won't. Some will allow for prayer in classrooms or over the P.A. system, others won't. Some will allow prayers before football games and at graduation ceremonies, others won't. Some schools will allow the teaching of intelligent design in the classroom, some won't.

Let's let public schools decide what they want to permit and prohibit, and then let parents decide to which of those schools they're willing to delegate their authority. And let's keep activist judges out of these decisions altogether.

Freedom, local control, parental choice. It's a beautiful thing.

Supreme Court: Morse v. Frederick

© Bryan Fischer