Monday’s U.S. Supreme Court decision upholding the suspension of an Alaska student for displaying a banner with the words “Bong hits 4 Jesus” was unquestionably the right decision. It would have been devastating to what is left of public school discipline if the court had ruled in favor of the student.
Still, there was something quite unsatisfying about the decision, which showed how badly the court is divided on the central issue of what speech rights must be accorded students.
A bare majority of five justices agreed that because the banner could reasonably be interpreted as being a message in conflict with the school’s anti-drug policy, the school principal was justified in having it removed. Chief Justice Roberts, author of the majority decision, emphasized the narrowness of the ruling and sought to allay any concerns that the ruling would lead to a wholesale regulation of student speech.
Four dissenters on the court, in contrast, played up concerns that school authorities might now try to limit student speech on matters of legitimate concern, including, say, drug policy. Only Justice Clarence Thomas had the nerve to address the issue of student rights head on. In a concurring opinion, Thomas sketched the history of public schools in this country and focused on the importance of a 1965 case, Tinker vs. Des Moines Independent Community School District.
Thomas said that case was wrongly decided and has had a lasting negative effect on the public school system. The case, which involved the wearing of armbands during the Vietnam War, established the principle that student speech must be tolerated except in those instances where the speech is disruptive of the educational process and school discipline. Thomas pointed out that since that principle was established, the court has carved out a number of exceptions, the latest one being the drug issues in the bong case.
“I am afraid,” Thomas wrote, “that our jurisprudence now says that students have a right to speak in schools except when they don’t – a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason. As originally understood, the Constitution does not afford students a right to free speech in public schools.”
He went on to say, “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. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.
“In place of that democratic regime, Tinker substituted judicial oversight of the day-to-day affairs of public schools. The Tinker Court made little attempt to ground its holding in the history of education or in the original understanding of the First Amendment. Instead, it imposed a new and malleable standard: Schools could not inhibit student speech unless it ‘substantially’ interfered with the requirements of appropriate discipline in the operation of the school. Inherent in the application of that standard are judgment calls about what constitutes interference and what constitutes appropriate discipline … . .
“And because Tinker utterly ignored the history of public education, courts (including this one) routinely find it necessary to create ad hoc exceptions to its central premise. This doctrine of exceptions creates confusion without fixing the underlying problem by returning to first principles … . Local school boards, not the courts, should determine what pedagogical interests are ‘legitimate’ and what rules ‘reasonably relate’ to those interests.”
Whatever else one may say about the Thomas opinion, it is enormously refreshing. It constitutes a timely warning to the nation that it is in for a big disappointment if it continues to ask the courts to micromanage the day-to-day atmosphere at thousands of public schools where students – some bright, some not – are more than willing to think up new ways to challenge authority.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff.
