The Volokh Conspiracy

Justice Thomas's concurrence in Morse argues that the First Amendment doesn't restrict public school authorities' power over student speech. But while the opinion focuses only on the issue at hand -- speech in K-12 schools -- a good deal of the arguments there would apply equally to speech in colleges and universities.

Justice Thomas's argument is basically structured as follows; my remarks regarding to how this argument applies to universities appear in italic.

1. Original meaning: "[T]he history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." This also extends to the First Amendment as applied to the states by the Fourteenth Amendment, which was enacted in 1868. I'm not an expert on the history of speech restrictions in universities, but my tentative understanding is that the First Amendment was not seen as constraining such restrictions, at least until the 1950s or later.

In particular,

a. "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." Public colleges and universities likewise developed after private ones, and in some measure as alternatives for private ones.

b. "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 [including] idleness, talking, profanity, and slovenliness[]." [Footnote: "Even at the college level, strict obedience was required of students: 'The English model fostered absolute institutional control of students by faculty both inside and outside the classroom. At all the early American schools, students lived and worked under a vast array of rules and restrictions. This one-sided relationship between the student and the college mirrored the situation at English schools where the emphasis on hierarchical authority stemmed from medieval Christian theology and the unique legal privileges afforded the university corporation.'"] The footnote expressly suggests this reasoning historically applied to college students.

c. In particular, public schools were seen as operating "in loco parentis," which is to say in place of the parents and with the rights that parents have to constrain and discipline their children. [Footnote: "My discussion is limited to elementary and secondary education. In these settings, courts have applied the doctrine of in loco parentis regardless of the student's age. Therefore, the fact that Frederick was 18 and not a minor under Alaska law is inconsequential."] The footnote expressly limits the argument to K-12 schools, but I'm not sure the logic can be so limited: As I understand it, colleges were also understood as operating in loco parentis, partly because throughout much of America's early history the age of majority was 21 rather than 18.

2. "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."

a. In particular, this is because "Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (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 ...')." Again, this expressly relies on a university case; and its logic applies even more to public universities than to public schools -- no-one is legally requiring anyone to go to a public university or to any university at all, while children are legally required to go to at least some public K-12 school.

b. "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." This too applies fully to universities, though of course substituting pupils (and in some measure their families) for parents.

c. The main alternative to this approach—the Tinker standard for when student speech is to be protected—is too subjective and malleable. This may well not apply to universities. The current rule, as applied by the few Supreme Court cases on university student speech and by the many more lower court cases, seems to be that student speech (outside class and class assignments) is fully protected, subject of course to the usual caveats applicable in all speech contexts. Such a rule would be pretty clear; the question is whether Justice Black would think that it's right.

d. It's important to maintain "the traditional authority of teachers to maintain order in public schools. 'Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.'" This too may not apply to universities. First, my sense is that broad public and elite opinion agrees that outright "disorder" is not as serious problem at universities as it is in K-12 schools. Second, my sense is that the same broad opinion takes the view that some amount of verbal defiance and even disrespect (outside the classroom) is healthy at universities, even if it's dangerous at K-12 schools. If Justice Thomas shares these views, and sees these pragmatic judgments as relevant, he may thus conclude that a different rule should apply for university students than or K-12 students.

e. "To elevate [student] impertinence [uttering at a school event what is either '[g]ibberish' or an open call to use illegal drugs] to the status of constitutional protection would be farcical and would indeed be to 'surrender control of the American public school system to public school students.'" Again, this might not apply to universities, for much the same reasons as those I mentioned under 2.d.

So the bottom line: If Justice Thomas continues to focus on original meaning in free speech cases, or if he relies on the theory that those who "seek[] education offered by the State" must accept the requirements imposed by the State, then it seems likely that he would say that the First Amendment doesn't bar public universities from imposing speech restrictions on their students.

On the other hand, if Justice Thomas takes a more functional or pragmatic approach, focusing on the role of universities in public debate, and the role of public debate in universities, then he may take the view that university student speech is fully protected. (Of course, if I'm mistaken, and there is an 1800s and early 1900s tradition of protecting university student speech, either as a constitutional matter or at least as a matter of firmly embedded practice -- consider Justice Thomas's defense of anonymous speech in McIntyre v. Ohio Elections Commission, which was based on the tradition of anonymous political speech around the time of the Framing -- then Justice Thomas may also reach a pro-protection result on original meaning grounds, focusing on the meaning of free speech at the time the Fourteenth Amendment was enacted.)