Deconstructing Clarence Thomas

Clarence Thomas wrote a concurring opinion in the Supreme Court's decision yesterday on the government's power to punish persons who attend public schools and whose speech can be interpreted as advocating illegal drug usage (Morse v. Frederick, available here). In it, he expressed his belief that the government, in the form of schools, is not constrained by the First Amendment's speech clause: "In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." (And again later: "As originally understood, the Constitution does not afford students a right to free speech in public schools." For the moment, we'll just put aside Thomas's misreading of the First Amendment, which does not "afford" "rights" to citizens, but affirmatively strips the government of power: "Congress shall make no law ... abridging the freedom of speech....") He also revealed quite a bit about his own values.

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.

No Bong Hits 4 You!

The fanatic five delivered a couple of First Amendment opinions today, in both cases ruling in favor of the government and against American citizens requesting that it respect their liberty. In one, per Chief Justice Roberts joined by the Court's four other conservatives, the Court ruled bluntly that the government may punish a person who attends the school for any speech "that can reasonably be regarded as encouraging illegal drug use." The opinion is Morse v. Frederick and may be found on the Court's website here.

In 2002, Joseph Frederick was a senior at a public high school in Juneau, Alaska. That year, the Olympic Torch procession passed through town and right down the road on which his school was located. The principal of his high school decided to allow the students to attend the procession, supervised by teachers. But Frederick himself hadn't gone to school that day. Apparently, he instead spent the morning working on a banner that read, "BONG HiTS 4 Jesus." Frederick arrived at the procession as it approached the school and took up a position across the street, joined by several friends. (Most students stood on the other side of the street, nearer the school.) As the procession passed, the banner was unfurled, and he and several others held it up, attempting to gain the attention of television cameras. For this Frederick was suspended from school. Alleging a violation of his free speech rights, Frederick sued, culminating in the Supreme Court's opinion that the government had the right to punish him for his speech.

The decision works a pretty large expansion in the power of the government to punish citizens for speech. Not only does it bestow upon schools the authority to punish any student who advocates political points of view in favor of drug legalization or drug usage, but it also refuses to limit its reach to circumstances where the student is actually in the school's custody or at a school-organized event, such as a football game.

As is typical of the new conservatives, the majority opinion is irrational, ends-oriented, and, ultimately, disingenuous. To begin with, the majority treats Frederick's speech as if he were at school when it was made, and thus under the less rigorous (though far from weak) First Amendment protections afforded to students at school under prior precedent:

At the outset, we reject Frederick’s argument that this is not a school speech case.... The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22–23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” App. to Pet. For Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” Id., at 63a.

For my part, I fail to see why Frederick may not claim he was not at school under these circumstances. This was not a school-organized football game or dance. It was the Olympic Torch procession, a very public--parade-like--affair that was not organized by the school nor attendance limited to students. (Indeed, the school would have had no authority to exclude any member of the public from the event, despite the majority's repeated (mis)characterization of the function as a "school event.") That the school "sanctioned" the affair, and allowed the students then in its custody and care to attend under its supervision, does not thereby make every member of the public in attendance "at school," even if that person normally attends the school. This aside, Roberts also had to misrepresent Frederick's actions even to make this feeble defense of school authority. Frederick did not "stand in the midst of his fellow students" at all. He stood across the street from the school and away from most all students. (Roberts seems to have noticed no tension in his statements both that Frederick stood "in the midst of his fellow students" and that he "directed his banner [across the street] toward the school, making it plainly visible to most students.") And certainly, the fact that the band and cheerleaders performed on the side of a public road that he happened to be on does not make him at school. I myself in high school attended a professional basketball game during which the high school dance squad performed at half-time. I did not consider myself to be at school, nor subject to its authority, by virtue of this fact. Of course, making Frederick be "at school" was a necessary precondition to upholding the government in the case. Had he not been "at school," it was uncontested that his speech would have been absolutely protected and unpunishable by the government.

In another ends-oriented endeavor, the majority hilariously stumbled its way to a conclusion about the meaning of Frederick's message. Although the dissent (and Frederick himself) characterized his banner as humorous nonsense, the majority found in it instead a message "promoting illegal drug use":

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits . . .”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. ... The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is “meaningless and funny.”

Absent this finding, the speech would not have been punishable, as it would not have negatively affected "the governmental interest in stopping student drug abuse," the factor that in the majority's view justified the school in circumscribing Frederick's free speech rights. (Notice that Jesus disappears entirely when one is forced to interpret the message seriously as advocacy or celebration of drug use. Jesus can sensibly remain only when Frederick's explanation of the message as nonsense is accepted.) But more troubling--or at least most illogical--is the conservative majority's apparent inability to recognize political speech even when they've just found it. One paragraph after the above quoted text, Roberts wrote:

Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 14–16, this is plainly not a case about political debate over the criminalization of drug use or possession.

What's disingenuous here is the majority's reliance on Frederick after already rejecting his own expressed intent. This catch-22 could have come straight from Joseph Heller: Frederick's banner is not "meaningless and funny" like he said but instead "advocates" drug use. But his banner does not advocate a political message because Frederick says it is meaningless. It is anything but clear to me how advocating illegal drug use--if one is inclined to conclude that is what he was doing--is not political speech. But this emphasizes the conservatives' dilemma in this case. They knew what result they wanted (government wins against citizen), but getting to that result required two contradictory findings along the way: (1) Frederick's banner was not meaningless (so as to enable it to invoke the government's interest in regulating student speech regarding drug use); and (2) Frederick's banner was meaningless (so as to remove the speech from the highly protected category of political speech implicated in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, which came out in favor of the students). So they did it, because they can.

So now not only does the Fourth Amendment disappear from the relentless pounding of the war on drugs, but so, too, does the First Amendment begin to erode.