DOES FREE SPEECH REALLY BELONG IN PUBLIC SCHOOLS?

A divided Supreme Court ruled this June in the case of Morse v.
Frederick that a public school may restrict speech that a reasonable
observer would interpret as advocating illegal drug use. The court
overruled the Ninth Circuit Court of Appeals, which had held that a
school principal could be sued for monetary damages by a student whom
she had ordered to take down a sign reading "Bong Hits 4 Jesus."

That holding demonstrates both the strength and the weakness of the
conservative majority on the Roberts Court.

Chief Justice John Roberts wrote the court's opinion, which
demonstrated that Roberts was being entirely candid when he affirmed
during his confirmation hearings that he believes in a kind of
judicial restraint. His brand of restraint, however, consists mainly
of a reluctance to overrule prior cases.

Rather than overturn the 1969 precedent, Tinker v. Des Moines School
District, which established the novel proposition that school
officials could limit student speech only when "necessary to avoid
substantial interference with school discipline or the rights of
others," Roberts's opinion limited its reach slightly, but left its
fundamental principle intact. Roberts noted that the court had, in an
intervening case, narrowed the Tinker ruling to allow schools to
restrict sexually explicit speech, and held that, since one could be
restricted, so could the other.

The most genuinely restrained opinion was delivered by Justice Stephen
Breyer, who would have avoided the controversial First Amendment
question entirely and held only that the principal in question could
not be sued for her actions -- an issue on which the court unanimously
agreed.

Breyer correctly points out that Roberts's approach addresses a
constitutional issue without providing much useful guidance to the
lower courts. In this judgment, he agrees with Justice Clarence
Thomas, who similarly complains that, as the law now stands, "students
have a right to speak in schools, except when they don't," and that it
falls to the courts to decide, case-by-case, when they do and when
they don't. But Breyer's approach would have no more changed that
state of affairs than Roberts's.

The fundamental problem with both the Roberts and the Breyer opinions
is that judicial restraint is not a virtue when it means leaving
intact a legal principle that has no foundation in our
Constitution.

Only Thomas asks the most fundamental question in this case: Does "the
freedom of speech" protected by the First Amendment to the
Constitution extend to schoolchildren? If the First Amendment had
conferred this right upon schoolchildren, one would expect to find a
long line of cases, stretching at least into the 19th century, when
public schools first became common, in which the courts protected this
right. Instead, one finds a line of opinions holding the opposite -- a
line of rulings suddenly and decisively rejected by Tinker.

The courts traditionally viewed schoolteachers as standing in loco
parentis -- that is to say, in the place of the parents. Having a duty
to rear their children to be mature and responsible adults, ready to
be fully contributing members of society, parents have wide authority
to control what their children eat, see, do and say.

Schools exist to help parents in the task of educating children, and
for most of the history of the public school in America, schools were
recognized as having, during school hours, many of the same rights
over children as the parents themselves possessed. Thus, prior to
Tinker, public schools had virtually unlimited ability to set and
enforce rules respecting speech and conduct. After Tinker, only
private schools retained such rights, which is yet another reason why
people who have the means so often choose private schools over public.

If the Tinker principle had led students to learn more, or if it had
propelled young people to greater levels of civic engagement, there
might be some reason for embracing it, even though it has no basis in
the original understanding of the First Amendment. In fact, however,
educational achievement is flat to down, and the generations to have
come of age since 1969 are markedly less civic-minded than their elders.

Overruling Tinker, as Thomas advocates, would lead to a certain
measure of judicial restraint, however: it would lead to fewer
lawsuits by disgruntled public school students, like the plaintiff in
this case, who are disciplined for engaging in obviously disrespectful
behavior at school.