COURT'S RULING IS SOUND, BUT LAW IS LACKING

The U.S. Supreme Court's decision in Morse v. Frederick, which decided
that a high-school student who unfurled a banner that read "Bong Hits
4 Jesus" had no constitutional right to such speech, was sound and
reflective of the welcome influence of Chief Justice John Roberts and
Justice Samuel Alito. The Court's 5-4 majority applied a healthy dose
of common sense to existing law. This case is good news for the
priority of order and instruction in public schools.

The problem, however, is that there is any federal constitutional law
in this area at all. The best and most notable opinion in the case was
by Justice Clarence Thomas, who joined in the majority's holding but
wrote a concurring opinion to outline, in characteristic manner, the
original understanding of the first amendment and public education. It
is a remarkable history lesson that illustrates the deleterious
consequences of judicial overreaching.

Thomas adduces the basic fact that "the history of public education
suggests that the First Amendment, as originally understood, does not
protect student speech in public schools." Speech was regulated under
the doctrine of in loco parentis (the school functioning in the place
of the parent, a delegation of authority from parents to teachers).
This doctrine operated as a check on judicial interference with the
operation of public schools.

The mischief started in 1969 with the case of Tinker v. Des Moines
Independent Community School District, which involved public-school
students wearing black armbands to express opposition to the Vietnam
War. School officials disallowed the armbands, and the students filed
suit, claiming a violation of their right to free speech under the
first amendment. The Supreme Court agreed, and it concluded that
school officials could not suppress student speech unless it would
substantially disrupt the school's work and discipline.

The federalization of speech in public schools was thus established.
Thomas rightly notes that "Tinker effected a sea change in students'
speech rights, extending them well beyond traditional bounds." Rather
than deferring to local control under the in loco parentis doctrine,
"Tinker substituted judicial oversight of the day-to-day affairs of
public schools." This classic example of judicial imperialism had, as
Thomas points out, the predictable result: "In the name of the First
Amendment, Tinker has undermined the traditional authority of teachers
to maintain order in public schools."

Thomas boldly calls for the abandonment of the Tinker regime of
intrusive federal involvement in what is said in public schools. As a
constitutional matter, this approach is the only tenable one, even
though it unleashes some very offensive forms of political
correctness. The biggest struggle in public schools today regarding
student speech involves not doltish banners advocating illegal drug
use but opposition to such issues as homosexuality. The typical
conflict arises with the school's suppression of an evangelical
Christian group of students arguing against the morality of homosexual
acts that are vigorously advocated in the school by a student
homosexual-rights organization.

Thomas proffers the remedy of democratic deliberation: "Whatever rules
apply to student speech in public schools, those rules can be
challenged by parents in the political process." Thomas' view - and
the prevailing view for most of American history - of parents
persuading other parents at the local and state level rather than
litigants seeking federal-court orders conduces to a more robust
citizenship.

Morse is, to be sure, a good result, one that could not have been
reached without President Bush's excellent appointments of John
Roberts and Sam Alito. (One can only imagine the hash that Sandra Day
O'Connor would have made of the case.) But it is a result that merely
tweaks a very damaging body of law. Tinker asserted that students do
not "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate," but Thomas demonstrates the
falsity of this proposition. Thomas, the most principled public figure
of our time, is the only jurist who shows the way out of the legal
mess spawned by Tinker and toward a return to the superior tradition
of public-school autonomy.