What Justice Thomas's Morse Concurrence May Mean for University Speech Codes:

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.)

plunge (mail):
Frankly, I don't see much merit in the "courts didn't act on these laws or cases for decades, so there's nothing to it" ideology. The anti-Jim Crow laws, which courts neglected to enforce for decades, are a good example.

While I have sympathy to the idea that how the law was interpreted closest to it's creation is important to consider, I don't think Thomas and those who reason like him give enough deference to the idea that people often fail to think about the full implication of a constitutional right. Free speech could just as easily been argued not to apply to women once upon a time: a tradition of failing to do so, however, would not make it any more valid that the plain effect of the law is to protect speech from government censure or punishment.
6.27.2007 7:16pm
Anderson (mail) (www):
Hopefully, Justice Thomas's opinion will mean nothing for university speech codes, because it will not become the Court's opinion.

Hang on, Stevens ... Stevens, hang on!
6.27.2007 7:23pm
Crunchy Frog:
With the current system of compulsory education, who exactly is it that "seek[s] education by the state"? Except for illegal aliens, of course.
6.27.2007 7:55pm
A Northwestern Law Student (mail):
With the current system of compulsory education, who exactly is it that "seek[s] education by the state"? Except for illegal aliens, of course.
Everybody. It's just that their will is expressed indirectly, through the votes of their representatives in writing state constitutions and laws that make education compulsory, rather than directly by going to the schoolhouse and signing up.
6.27.2007 8:05pm
John (mail):
I'm not sure I read Thomas that broadly. I must say I thought his opinion was very interesting and, frankly, persuasive, but it depended in large part, I thought, on the historic concept of in loco parentis, where the school is given the child on the understanding that the school, like the parent transferring custody, has the power to control conduct (including speech) to the same extent as the parent. It is a sort of waiver of whatever the child's rights might otherwise have been. I'm not sure the parent "transfers" a college student with the same understandings.
6.27.2007 8:21pm
Thanks for the analysis of Justice Thomas's concurrence.

I do have one concern however: I fear you may be being a bit too dismissive of footnote 3 ("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. ...")

The raison d'etre for the footnote is to indicate that Frederick's age is "inconsequential" to the case. Justice Thomas explicitly says that in loco parentis has been applied "in these settings," namely "elementary and secondary education." By saying the discussion is "limited" to these areas, that implies his legal analysis excludes university settings.

More importantly, the footnote is appended to the first sentence of I.B of the concurrence, namely "Through the legal doctrine of in loco parentis, courts upheld the right of schools to discipline students, to enforce rules, and to maintain order." The footnote specifies the use of "schools" to refer to "elementary and secondary education." Justice Thomas therefore is limiting the discussion to the K-12 context when it comes to courts upholding rights of schools to restrict speech via the doctrine of in loco parentis.

Of course, as I indicated in a comment in a different thread, there are plenty of hints (as you adumbrate in the post) that indicate that Justice Thomas hasn't completely and totally prevented application to the university setting. Thanks for the analysis.
6.27.2007 8:26pm
Bob_R (mail):
There is an easy way to split here. K-12 students are (as Thomas refers to them) "children." College and university students are "voters." We have a bright constitutional line (violated many times, unfortunately) at age 18. EV's attempt to move Thomas' logic across that line is so strained and illogical that it defies belief. By his logic the whole city of New York has suspended the first amendment (Bloomberg is far more vigorous in acting in loco parentis than any university's administration.) I suppose in a land where McCain Feingold is not laughed out of court the slippery slope argument has a lot of power. But it is damned discouraging.
6.27.2007 10:31pm
Oh my but that's a good post, Bob.
6.27.2007 10:34pm
I think it's pretty well established that the First Amendmant has a role in student speech and that a public school, at least in a compulsory system, does not act in loco parentis. But in cases where parents are actually delegating powers and permissions they can genuinely opt out of, perhaps Thomas and the doctrine of in loco parentis may have a bit more of a point.

Even in the context of a compulsory system, there is merit to the idea that a classroom is not a forum in the same sense a public park is and student's aren't free to say whatever they want whenever they want. Additional reasonable limitations on student speech are appropriate. One hopes the court will find a balance that doesn't involve special dispensations for speech on subjects the Justices happen to personally believe particularly important.
6.27.2007 11:09pm
Eugene Volokh (www):
Bob_R: Is your confidence at all shaken by the fact that Justice Thomas twice expressly cites sources that are applicable to universities (1.b and 2.a above)?
6.28.2007 12:13am
Tim DeRoche:
Given Thomas' language, I can't help but wonder if he's thinking about this case in terms of the school choice wars.

He emphasizes the fact that parents willingly select public schools (even with compulsory education). And he implies that they and their children have to take full responsibility for the consequences of that choice.
6.28.2007 2:33am
The biggest problem with Thomas's position is highlighted by his quote from Chaplinsky.

"[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire"

There's no doubt that obscenity and fighting words fall into the categories of "well-defined" and "narrowly limited". But as the discussion here over what constitutes "student speech" demonstrates, it doesn't fall into either category. There's no doubt that "Bong Hits 4 Jesus" wasn't the most enlightened statement but few First Amendment cases enjoy the symbolism or poignancy of Barnette. Thomas appears to allow the crassness of the content to influence his view on the need to protect student speech. Would he have taken the same position if the speaker was engaged in pure political speech, say like the high school student who ran for and was elected Mayor of Hillsdale Michigan? Or what if the 18 year old student was running for school board and making public statements critical of the board. Thomas would have no problem with the school board banning that speech? A hypothetical to be sure but no less implausible than a student trotting out a banner as happened in this case.
6.28.2007 2:34am
"Bob_R: Is your confidence at all shaken by the fact that Justice Thomas twice expressly cites sources that are applicable to universities (1.b and 2.a above)?"

Not so much, I think. As you noted, there's been a shift in the age of majority in general (and the voting age in particular) from 21 to 18. That in itself strikes me as a big reason to lump secondary school and university students together in the past, but separate them now.

Combine that with the fact that in the late 18th and early 19th centuries, university students were much younger than they are today. Most of the Founders *graduated* from university at 18 to 20 (Hamilton was 16), rather than *starting* at that age. Back then, secondary school students and university students were all in the same category: minors. Not so anymore.
6.28.2007 11:28am
It shakes my confidence, and I wish Thomas would pay closer attention to the presumed "bright constitutional line" at age 18, which is oft violated as Bob mentions.
6.28.2007 11:32am
Correction: It was Aaron Burr, not Alexander Hamilton, that I was thinking of.

The problem with a bright line at age 18 for secondary school students is that the vast majority are under 18, but a handful are over. It would wreak havoc on school discipline to have a separate set of rules for that handful.
6.28.2007 11:39am
OK, the boundary is bright, but not necessarily linear. But it's still bright, and it is a boundary. I'd hew to that, to accommodate to the handful, both under the same set of rules. Universities can be on the other side of that "bright boundary".

Linear-thinking lawyers might find this offensive, but 2nd degree polymonials can and should be applied in your analyses, counselors.
6.28.2007 12:33pm
You know, I am STUNNED that the lawyers aren't crashing in here, in droves, to chew over this particular discussion.

There's something reeaaaaaaly reallllllllly wrong in that.
6.28.2007 12:41pm
Gil Milbauer (mail) (www):
I applaud Eugene for not exhibiting the same prejudice that Thomas and most of society does.

It's simply obvious to most people that children aren't really people whose opinions and liberty to express them matter. So, any such constitutional protections can't possibly apply to them. That's just silly.
6.28.2007 2:56pm
arbitraryaardvark (mail) (www):
Late to the party, but I noticed today that the plaintiff in the Bong hits for Jesus case claimed that the school district violated his right to free speech under the US and Alaska constitutions. The Ninth Circu[it] declined to address the state grounds, deciding on First Amendment grounds, which were reversed by the Supremes. Thus, his case should remain live, on the question of whether his speech was protected by the Alaska constitution.
§ 5. Freedom of Speech

Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.

§ 6. Assembly; Petition

The right of the people peaceably to assemble, and to petition the government shall never be abridged.
6.28.2007 5:22pm
As you rightly observe, the difference is that universities are optional why K-12 is compulsory. Thomas is right, technically, but his views just don't seem very realistic in this modern information age when expression is encouraged (and it doesn't seem to fit the fact pattern of an 18 year old off campus on his own version of Ferris Buelle's Day Off, either). This would not be a constitutional quandary if public schools were privatized or compulsory attendence laws were repealed. If students are a captive audience of the states, they should not shed their rights at the door.
6.29.2007 4:51pm
Randy R. (mail):
" but it depended in large part, I thought, on the historic concept of in loco parentis, where the school is given the child on the understanding that the school."

It also depends in large part on the theory that too much free speech has turned our schools into choatics places where no learning takes place.
6.30.2007 4:01pm