Laboring under the quixotic and never-explained hypothesis that the First Amendment's meaning is controlled by how public schools were organized and run in the 1800's, Thomas's opinion harkens back to America's better days, when teachers could beat children on behalf of their parents and, of course, blacks were kept under lock and key. He cites approvingly such emminent treatises as A. Potter & G. Emerson's The School and the Schoolmaster: A Manual (1843) for the proposition that "[b]y its discipline it contributes, insensibly, to generate a spirit of subordination to lawful authority, a power of self-control, and a habit of postponing present indulgence to a greater future good . . .” Insensible generation of a spirit of subordination to lawful authority?? Seriously, Justice Thomas? More on Thomas's apparent love affair with physical discipline of the poor:
During the colonial era, private schools and tutors offered the only educational opportunities for children, and teachers managed classrooms with an iron hand. Public schooling arose, in part, as a way to educate those too poor to afford private schools. Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800’s, no one doubted the government’s ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control.
Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong. Rules of etiquette were enforced, and courteous behavior was demanded. To meet their educational objectives, schools required absolute obedience.
In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order. [Citations have been omitted.]
Thomas's endorsement of the use of force as a means of "persuasion" evokes the fascist Capitan Vidal character in Guillermo del Toro's Pan's Labyrinth. Thomas's loathing of critical thinkers and those unlikely to obey, as the good doctor in the film puts it, for the sake of obeying, oozes from his pen. His fawning over the notion of "insensible generation of subordination to authority" is disturbing, to say the very least.
Thomas moved on to explain how the courts historically permitted this physical and mental abuse of children, invoking the acceptance of the common law doctrine of in loco parentis: "Through the legal doctrine of in loco parentis, courts upheld the right of schools to discipline students, to enforce rules, and to maintain order." He notices that this doctrine "allowed schools to regulate student speech as well" and cites a plethora of mid-nineteenth century state court cases applying the doctrine: Sheehan v. Sturges, 53 Conn. 481, 483–484, 2 A. 841, 842 (1885); Patterson v. Nutter, 78 Me. 509, 511, 7 A. 273, 274 (1886); Lander v. Seaver, 32 Vt. 114, 115 (1859); Wooster v. Sunderland, 27 Cal. App. 51, 52, 148 P. 959, (1915); Deskins v. Gose, 85 Mo. 485, 487, 488 (1885); Vanvactor v. State, 113 Ind. 276, 281, 15 N. E. 341, 343 (1888). Thomas summarized his constitutional "argument" in a nutshell:
In 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 gave total control to teachers, who expected obedience and respectfrom students. And courts routinely deferred to schools’ authority to make rules and to discipline students forviolating those rules.Par for the course, Thomas never explains why he believes the historical application of this common law doctrine in cases where the First Amendment was never invoked must now prevail over the U.S. Constitution itself in a case in which a citizen has claimed its protection. He does unceremoniously deign to drop a footnote (1) in his opinion noting, "Although the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment, most state constitutions included free-speech guarantees during the period when public education expanded." But, per the usual, this explains nothing at all, for there is no indication those guarantees were claimed by the litigants in the cases he relies upon, and, even if they were, Thomas refuses to explain how a state court's interpretation of a state constitutional provision sheds any light on what the First Amendment to the United States Constitution means. Thomas's silence is unsurprising, I suppose, since there is no connection at all. Boiled to its essence, Thomas believes the First Amendment is inapplicable in a public school because, historically, courts have never applied it when it was never invoked. Of course, to get there, he has to skip over all the more recent cases where it was invoked, and in which it was accordingly applied, notwithstanding, of course, in loco parentis.
So if the First Amendment does not provide any restraint on the government when it takes the form of a school, what, then, could be a possible remedy for those parents who do not wish the government to have such raw and unchecked power over their children? Thomas explains:
To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal. 293 U.S. 245, 262 (1934) (“California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course …”); id., at 266 (Cardozo, J., concurring). If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.
The conservative ideologues--and particularly Thomas and Scalia--demand quite frequently when they rule against a citizen and in favor of the State that the citizen take the matter up through the political process, which in the end constitutes a mere ignoring of the constitutional responsibilities of the government. But this principle doesn't apply universally, of course--not when you're an outcome-oriented ideologue. For if a public school chooses to enact remedial racial preferences to help reverse centuries-long discrimination that negatively affect whites, then ... then, the answer is not the political process but the Constitution, which forbids racial discrimination (even though the "original understanding" of the 14th Amendment did not prohibit schools from selecting students based upon race, as is evident by the long history of segregation during and following its passage, even in the Washington, D.C., school districts, which were directly under the Congress's control). Witness: "In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause." (Grutter v. Bollinger, 539 U.S. 306 (2003).) What a difference a day makes!
To be fair to Thomas, he did not in Morse completely ignore the modern Supreme Court decisions applying the First Amendment in the public school context. He briefly mentions those cases, only to say that they do not form a coherent test. He never explains why those decision do not in any event bind him, but I suppose when you are the "lawful authority" and you expect that what you say "goes," you can stand to be a little light on explanation. After all, he need not rely "solely on the power of ideas to persuade." As the "lawful authority," I suppose that he expects to have other, less idea-y, means of persuasion at his disposal.
Incidentally, not even Scalia joined Thomas on this ride.
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