Having now read and reread the mind-numbing anti-freedom decisions produced yesterday by the majorities in the Supreme Court, I have to say that the most chilling writing was Clarence Thomas’s concurrence in Morse v. Frederick.
Thomas, if he had his druthers, would overturn the Tinker decision. What kind of angry-juice is in his bong?
For those of you who are unfamiliar with Tinker v. Des Moines (and shame on you if you’re Americans!), I’ll outline it very briefly.
A few families in Des Moines met early in December of 1965 to discuss their opposition to the war in Vietnam. They agreed that the kids among them would wear black armbands to their schools during the holiday season as a protest. Somehow, the principals of the various institutions got wind of the idea, and immediately instituted a policy that all students wearing black armbands (no other fashion accoutrements were specified) would be asked to remove them. If a student refused, he or she would be suspended. Two of the Tinker children, Mary Beth (13) and John (15), along with Christopher Eckhardt (16) earned such suspensions.
The case wended its way to the Supreme Court, where it was finally decided on February 24, 1969. In a 7-2 decision, the justices found that the schools’ order restricted the students' right to free speech, symbolic though it was. As Justice Fortas wrote in his majority opinion:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech at the schoolhouse gate.After stating this principle, he addressed the specifics of the case:
If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school....The Tinker decision is one of the great landmarks of First Amendment adjudication. For nearly forty years, it has protected a student’s right to dissent. It has been nickered away at, but it has held up.
As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.
Now, Thomas would overturn it.
He includes in his concurrence a long, pointless history of discipline in America’s public schools, beginning from colonial times. You can almost picture Thomas with a paddle in his hand, ordering some mischievous child of yore to bend over for a good, compassionate Republican spanking. Thomas’s ideal school seems to be Dotheboys Hall in Nicholas Nickleby.
After a section discussing the legal doctrine of in loco parentis as it had been practiced in the 19th century, Justice Wackford Thomas finally skips to that catastrophic winter day in 1969 when the Tinker decision began to cause widespread havoc in school systems across the United States. As we all know, education has never been the same since; from that day to this, students, wearing armbands of all colors, have gone on purposefully disruptive opinion rampages in their classrooms.
But Thomas has a solution:
I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. 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.In other words, if you don’t want the Clarence Thomases of this world to flog your undisciplined brats on the ass, get out of town. Yikes!
This kind of brutish disregard for the First Amendment apparently went too far for even some of the majority, and I must give some credit to Justices Alito and Kennedy. In his concurrence joined by Kennedy, Alito makes it a point to “reaffirm” the basic precepts of the Tinker decision. He even goes so far as to say:
I join the opinion of the Court [in Morse v. Frederick] with the understanding that the opinion does not endorse any further extension.If that’s sincere, it strikes me as a hopeful note.