I'm with Justice Thomas on this one. Once upon a time, order and discipline were enforced in public schools. Sure, it's not always fair, but the alternative has proven to be worse.

I agree with Stevens that this was not a school event.

The principal sent the school out on a field trip on a public street, to see the running of the olympic torch.

The student skipped school that day, and showed up at the same event with his banner, trying to get on TV.

Guest44: Maybe your school was different but at mine I was always under the impression that school-organized field trips were school events, even when they weren't particularly well organized and even if some of the kids got there independently under their own power.

I'm very interested in EV's take on the case. Alito's opinion is disturbing - the idea for judges to read political messages right out of an ambiguous statement seems to me to be the wrong approach. It seems more like the sad old "drugs exception" to the constitution rearing its ugly head, even if Alito and Roberts took care to note that a "clearer" political statement against the war on drugs would gain the protection of constitutional rights.

IIRC, all the forms that I sent home to the parental units to get signed explicitly stated that field trips, assemblies, etc. were "school events".

Randy R.,
While I too disagree with Thomas, you seem to be conflating good policy with good constitutional law interprertation.

srg: "While I too disagree with Thomas, you seem to be conflating good policy with good constitutional law interprertation."

Or perhaps it is Thomas who is.

So a thoughtful article by a school journalist on the wisdom of making pot illegal for medical usage would not be allowed, since it obviously is 'promoting' an illegal use.

They actually distinguish that sort of thing, tho how it will play with school administrators &district courts is another matter.

So a thoughtful article by a school journalist on the wisdom of making pot illegal for medical usage would not be allowed, since it obviously is 'promoting' an illegal use. A challenge or even discussion of any law would likewise be prohibited.

That's quite a s t r e t c h.

TJIT: I may be wrong but as best as I can tell from reading the decision, the Justices all agree (even the dissenters!) that the banner was displayed at a school-organized event and that the principal should not be punished for pulling down the banner (see the 2nd paragraph of the dissent).

Not having read the decision, let alone the whole record, I'd like to know:

* Whether the school claimed that it was exercising powers
in loco parentis,
-if-so-
* Whether such a claim was supported by the facts,
-and-in-any-case-
* The limits of such powers; when a school does *not* possess
powers over minors.

This decision won't restore order and discipline in the schools.

It wasn't the First Amendment that undermined order and discipline. It was other areas of the law, such as state law restrictions on discipline, overzealous lower court applications of due-process rulings like Goss v. Lopez, and, still worse, the Individuals with Disabilities Education Act, which makes it difficult to expel violent kids with purported behavioral or emotional "disabilities."

I sympathize with Houston Lawyer's worries about the erosion of discipline in the schools, but that won't be fixed by this Supreme Court decision.

As I have explained at SCOTUSblog in past comments, although this was a close case, the court should have ruled in favor of the student as to whether the First Amendment was violated (at least to the extent of overturning the summary judgment against him on that ground), and the principal as to the issue of qualified immunity.

Wait, I thought the problem was that they were all Catholics, now the SC is worried and pre-ocupied with Evangelicals?

Alan, the school did make the in loco parentis claim. Alito (and Kennedy) flatly rejected it in the following paragraph:

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority -- —including their authority to determine what their children may say and hear -- —to public school authorities. It is even more dangerous to assume that such a delegation of authority
somehow strips public school authorities of their status as
agents of the State. Most parents, realistically, have no
choice but to send their children to a public school and
little ability to influence what occurs in the school. It is
therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were
private, nongovernmental actors standing in loco parentis.

Can't say that I disagree with that part of their concurrence in any way.

Thomas, on the other hand, relies heavily on the doctrine in his concurrence. Roberts's opinion and the dissent don't mention it at all.

Given what I know about the facts, particularly Fredericks's age at the time of the incident, I'd say they don't support the claim. Or rather, if the doctrine is such that they do, then I'm opposed to the doctrine.

This goes to the above exchange between Guest44 and Sommerfeld.

As I understand the facts of this case, the student (who I believe was an adult at the time, correct me if I'm wrong) woke up, elected not to attend school, went to a public sidewalk that was across from, but not on, school property and unfurled a banner. The student was *not* let out of school to attend a field trip or a school-sponsored event because there he was not in school to begin with. As I see it, he was on the sidewalk (the paradigmatic public forum) on his own time and outside of his capacity as a student.

I suppose one might argue that he availed himself of the school's authority by going to the event but I think that argument would only be effective if he had actually gone onto school grounds or otherwise announced to a school official that he was electing to join his class. But that didn't happen here.

Someone mentioned insurance/liability issues above. Is there any doubt about what argument the school district would have made had this student slipped and fell on the non-school sidewalk and attempted to recover from the district?

The most troubling aspect of this decision is that it seems to expand a public school's authority to discipline students for speech made on their own time and outside of school. Seems a little nuts to me.

Thomas cites a long line of cases and other contemporary sources to show that, from the founding of this country until Tinker, it was generally understood that students didn't have first amendment speech rights in school. By mockingly highligting the 1915 case, one that must be especially shocking to the modern liberal sensibility, Randy R. is actually reinforcing Thomas's point. Discipline, orderliness, and decorum were once thought to be vital to education, and schoolmasters were given wide latitude in enforcing those standards.

Thomas is making the perfectly logical assertion that Tinker upended the historical understanding that had prevailed at the time the Constitution was ratified, and for nearly two centuries thereafter.

He concurs with the majority, as the opinion further undermines Tinker, but believes that it imposes yet another complication for lower courts striving to interpret the Supreme Court's guidance on student free speech rights. Thus, in his view, the best course would be simply to abandon Tinker. Whether you agree with that or not, it's hard to argue with Thomas on grounds of clarity.

The court also handed down a decision in which they found that its kosher for the government to take your money, use it to fund some unambiguously unconstitutional act, and you don't have standing to sue.

That's like arguing that you can mug someone and give the money to your wife, but only your wife has standing to sue in civil court if she thinks that sequence of events is unfair.

As an aside, has Thomas ever defended his view of Originalism? I’d be curious to know why he thinks Originalism is right and how that relates to the type of Originalism he defends. At the least, perhaps he has publicly commented that he agrees with some academic’s view of Originalism, although, of course, there’s not many academic defense of Originalism.

It's fun to keep thinking about this stuff -- someone stop me!

What if the banner said, "Torture all the Gitmos!" Is that advocating an illegal practice? Are we sure torture is still illegal in the US? Surely that would rob the majority of the claim that the banner is promoting illegal activity!

What if the banner said, "Torture all students who question authority!" Seemingly, the banner would then be supporting Thomas' concern about discipline in our schools, and he would be forced to support it, no?

What if the banner said, "Adhere to the rule of law!" Is advocating for the rule of law itself disruptive enough that it much be limited for students?

Oh, how boggled the mind gets!

Randy R is on to something. Were students allowed to take guns to school in the 18th Century? I bet they were! (Kidding -- I hope?)

"It isn't because students have too much free speech that our schools are a mess. It's because they take guns and knives to school."

Boy are you wrong. It's because they aren't allowed to openly and concealed carry ENOUGH guns and knives to school to help keep the peace themselves.

Doesn't all of this hair splitting over what would or would not be acceptable banners high light the correctness of Thomas' position? If the correct constitutional ruling — which prevailed at the time of the founding and for over 150 years aftward — is that students don't have free speech rights in school, then none of that matters. Instead, we had ruling unmoored from the original meaning and understanding of the constitution which has resulted in this train-wreck of jurisprudence not to mention the havoc it has caused to the pratical matter of trying to educate children.

How many more years of school teachers getting qualified immunity because the law is too muddy must we put up with? There needs to be a precise and consistent formula for determining whether or not schoolhouse speech is protected. The distinctions about the schools' sponsorship, imprimatur, and material disruption have blurred lines and courts are confused on whether those are separate or interlocking requirements. It seems to confuse the matter even more when the school can now discipline a student for off campus speech, suggesting now that students better be pretty careful about what they post on their MySpace profiles and blogs. There have been cases in which students' violent musings have led to suspensions, but now any student discussing fake ID's and beer runs (or heck, P2P sharing) on his blog runs the risk of suspension and losing a lawsuit. Certainly, the disciplining official will be entitled to qualified immunity for any diciplinary action taken under such circumstances.

If we want to have compulsory education laws, dealing with messy student speech is a consequence of that. When they privatize all the schools, then Thomas can be right.

Plunge,

If, at the time of the founding, there was no public schooling as it exists today then it is the schools which must conform to the constitution, not the other way around.

Plunge: "There was no system of public schooling at "the founding" as far as we know it today. Talking about anything prevailing at this time is nonsensical."

but that obviously didn't stop Thomas.

As for the 1915 case, I don't think there is a single parent anywhere in America that would agree that the school can discipline a student for taking administrators to task for providing an unsafe environment for learning.

As for Thomas' statement that too much free speech has led to disruption in the schools, I daresay it's been a loooooong time since he has set foot in a public school. Or for any Justice, for that matter, even having a child or grandchild in a public school.

What I do notice, throughout the majority opinion and certainly here, is a nostalgic belief that if we just get student's to shut up and stop questioning authority, we can return to the mythic 1950s, a time when there was no such thing as pre-marital sex, no one got pregnant, homos didn't exist, drugs were unknown, and the worst thing to happen to a student was to find out that strawberry was the only flavor of shake left at the drug store.

This incident did not occur on school grounds and therefore the ruling was narrowed down to a school event. What if an adult, with no association with the school held the sign? Could the principle grab it and pull it down? Can any "drug message" be banned from kids? Music? Movies?

This SCOTUS and the RATS are a joke. You cons who voted for Bush should be hanging your heads in shame.

JMJ

Actually Thomas didn't go far enough in his dissent. The First Amendment does not apply to the states, not did the 14th Amendment apply the First Amendment to the states.

Thomas didn't say 'public school students didn't have 1st A rights at the Founding and thus have none today.' This is what he said -

"In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. . . . If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not."

does anyone know how much this litigation cost that school district?

Back to the "school event" factual issue:

The event was not school-run nor school-sponsored. It was an event open to the public, that the school thought students ought to see: the Olympic torch passing through town.

This 18 year old man--a senior who did not attend school at all that day--appeared on the public street, not school property, and unfurled his banner.


The principal grabbed the banner and suspended him for 10 days.

"It isn't because students have too much free speech that our schools are a mess. It's because they take guns and knives to school. "

rubbish. guns and knives aren't the problem. literally millions of kids routinely took guns and knives to school for decades without a problem. schools had rifle clubs, etc. and they did not ban kids wearing pocket knives, either.

spare me the silly propaganda please.

Whit,

You're shouldn't use the past tense; while school rifle teams are far rarer today than at one time, some do still exist. Furthermore, states laws in at least some places (like mine) allow bringing firearms on campus for a myriad of purposes, including both shooting teams/clubs and for things like hunter safety education.

parker, you are correct.

it is true that far MORE kids used to routinely take guns/knives to campuses in the past than they do now.

it is not the case that this still is not the case at SOME schools.

my bad

Carolina and others get this opinion dead wrong.

The court went out of its way to indicate that
1) this was a school function.
2) the banner was intended to be disruptive--that the student by his own admission intended no message.
3) that the principal determined that the message was in fact disruptive.
4) that the principal's determination was reasonable because the banner contradicted school policy.

None of #1-#4 express what restraints or discipline the school could have imposed if, for instance, the student had published an op-ed favoring the repeal of drug-free school zones.

"In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. . . . If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. They did not."

This is a remarkably obtuse statement. The 1st A didn't apply to the states in the 19th C.

K Parker, if you have citations to law reviews/books/etc. discussing guns in schools in the 19th century, I'd appreciate it if you could pass them along.

When the revolution comes to the USSA, the students, so long deprived of their rights, will be in the forefront, standing in front of the tanks. Godspeed!

Mark Field,

To read Thomas's statement in the most charitable light, I would think most states had free speech clauses. That's a more complex point, of course, and is open to a variety of criticisms itself, but it's not an implausible interpretation.

I have trouble buying this was a school event. The Olympic torch passing by was not organized by the school. The school did allow students to leave their classrooms to witness it but the plaintiff was not in school that day. And while the majority of students were with a teacher he was not. And the students assembled on one side of the street while the plaintiff was on the opposite of the street. In addition as a senior I believe he would have been old enough to legally not attend school that day if he wished. And he didn’t attend school that day.

The court seems to be saying that because students at a school event could see the banner across the street from what the school organized that made the banner under school control.

Since the plaintiff was not at the event proper and was on public property not school property then exactly how far away must he be before his First Amendment rights kick in? Had he been two blocks away would it be legal? Is it legal if he shows the banner a mile away but some students have binoculars?

As I see it the plaintiff was not required by law to be in school and was not in school that day. He was on a public sidewalk, not on school property, and not under the jurisdiction of the school or chaperoned by a teacher. He was merely visible to students who were attending the event. Do we really want the school to have jurisdiction over all speech rights of students off campus as well as on?

This entire “school event” issue is a smokescreen. The plaintiff was across the street from the school event. This sort of expanded definition of “school event” is something that has ramifications that may not bode well for the schools. And since the student was not in school when he exhibited his sign and legally allowed to skip school he ought to have the full First Amendment rights that we all do. No doubt by some of the Justice’s reasoning he did have all the rights the rest of do and that isn’t very many.

Thomas argument seems to be that rights are determined by what was respected in the past and not by the actual wording of the constitution. What a can of worms that opens up.

By the way the argument that student intended no message and the argument that he could be suspended because of his message seem contradictory.

There seem to be two lines of disagreement with this case. One is the issues surrounding what was said. To that discussion, I have nothing to add.

Two is the issue surrounding where it was said. This could be further split into (a) was it at a school event, and (b) what was the physical location?

Regarding the physical location of the sign. A school’s interests do not end at the school boundary. The Court alluded to this by noting that “[t]here is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, but not on these facts.” The Court cites a case (Porter v. Ascension Parish School Bd., 393 F.3d 608, 615, n. 22 (CA5 2004)) that finds a student’s poster was not school-speech, in part because the sign was not directed at the school. If that was the test the Court used (Was the speech directed at the school?), then the physical location of the sign is not an issue.

There is a good photo of the sign at wikipedia: http://en.wikipedia.org/wiki/Image:Bh4j.jpg. That picture would have been taken from well-inside the school’s boundaries. The banner was aimed directly at the school, satisfying the test the Court alluded to.

This seems like a good approach. Then, the concerns over (a) whether or not this event was a school event, or (b) whether the school can enforce regulations against students all over town – are sidestepped. Only speech that is “directed at the school” can be considered under the line of “school-speech” cases.

As an anecdote, I went to JDHS (unfortunately I graduated a few years before the events in this case), and can contribute a minor fact to the discussion of the location of the sign. JDHS has no “on-campus” parking. Most students parallel park on the road in front of the school. The location of the banner was next to a car on this road. Thus, the banner was in the de-facto parking lot for the school. The Court probably could have considered this when discussing the location of the sign, but may have wanted a broader holding (something like the “directed at the school” test) that reflected the school’s interests without getting bogged down in a discussion of property boundaries.

I stand by my points above, but in the end, it just seems silly that the student pressed it and the school pressed it and the U.S. Supreme Court now has a reported opinion with the phrase "Bong Hits for Jesus." I mean, gee whiz.

To read Thomas's statement in the most charitable light, I would think most states had free speech clauses. That's a more complex point, of course, and is open to a variety of criticisms itself, but it's not an implausible interpretation.

Fair enough; maybe even charitable to me in DMN's view. But Thomas's view leaves out a great deal:

1. There were no high schools in America until 1821. As a practical matter, very few students attended them until after the Civil War. I think there are substantial grounds for doubt that the practices of 30-110 years after the fact would be probative of the intent in 1791 (however Thomas chooses to interpret that) regarding an institution which didn't exist at that time.

2. Assuming most states had free speech clauses, he'd at least have to show similar wording and interpretation of them as compared to the original understanding (as he sees it) of the 1st A. That would require a state by state analysis of 19th C decisions.

3. How does Thomas know that the rights were not enforced in some way? He has no way of knowing this. At best, he can say he didn't find any court opinions. This isn't very persuasive since (a) many opinions went unreported in the 19th C; and (b) the rights might have been either widely recognized or violated but enforced by private action (very common in the 19th C).

4. The age of adulthood in the 19th C was 21. I suspect (but don't know; neither does Thomas) that very few high school students were 21 in those days. The student's age seems to me a very relevant factor here.

Alito's concurrence, which I read to be controlling, includes a robust defence of Tinker and goes out of its way to emphasize that Tinker isn't being narrowed very far beyond the specific facts of this case. It's pretty close in substance to Breyer's view, suggesting that in this area the Court is neither strongly conservative nor strongly polarized. It has a functioning center reflecting widespread agreement, on this issue, that basically favors keeping things as they were in the Warren era with only slight adjustments at the edges.

whackjobbbb - how about unfurling the banner on a public street at a public event, when you're not at school? (that's what happened in this case)

This was the worst decision by the supreme court in recent memory. Now I thought the facts made it pretty clear that the student should have provided on the 1st amendment issue (less clear about qualified immunity) but the decision could have been reasonable instead of absolutely discraceful if it had been decided a different way.

The justices could have held that, like the prior case about the lewd speech by a student, that the sign wasn't expressing a message and was simply disruptive clowning around. They could have agreed it expressed a message but felt that the format was too disruptive. It would even have been better if they had just decided that student speech only gains protection on a matter of public concern and this wasn't one. Heck, it would have been better had the justices just gone with Thomas view and overturned Tinker (right case?). Instead the justices specifically ruled that the banner did express substantial content (advocated drug use) and then ruled it lacked first amendment protection because of the idea expressed.

This undermines the central premise of free speech, the government doesn't get to restrict views based on their content! Sure it's sometimes hard to draw the line between expressing the content that it is morally obligatory to kill someone and exhorting people to murder but the principle that no idea should be punished only the basis of it's content should be inviolate.

The argument about the need for schools to maintain discipline might have been a good one if the justices hadn't made it clear that the content of the banner was pivotal. If you can ban speech just because the idea is dangerous you have no free speech at all. That's been the excuse of every despotic regime in history. The discipline argument only works if the supposed harms are a result of the form of the speech not the content.

This decision all but explicitly says that the boundaries of free speech are determined by the badness of the idea being expressed. Yet the very value of free speech is as a bulwark against the, potentially misguided, idea that some kinds of ideas are too dangerous to be heard. Free speech for acceptable views is no free speech at all.

Expounding on my previous post...

The only reason the Supreme Court had this silly discussion is because the school system is run by the government.

There are no 1st amendment protections for students going to a private school. If these protections are vital to the students learning process, wouldn't we see some negative impact on all of the unlucky private school kids?

Thomas was right. There was no consideration for free speech protections for children. Probably because there was no government run school system when the constitution was drafted.

I certainly don't remember any talk of free speech in the school when I was young. It's just another silly construct foisted on the public during that strange period when hippies ruled the world.

IMO, the Frederick ruling is a miscarriage of justice. The high school let students out early so they could watch the parade or not. Attendance was not mandatory and many students went home instead. Frederick had not gone to school that day, but did show up for the very much public event. He was not on school property or on school time. He was 18, so I doubt if in loco parentis would even apply off campus. Nevertheless, the principal took it upon herself to destroy his silly banner and suspend him from school. How could what he did possibly be either grounds for school discipline (unless he skipped school) or a crime? Maybe I'm missing something...