Pubdate: Thu, 28 Jun 2007
Source: Palm Beach Post, The (FL)
Copyright: 2007 The Palm Beach Post
Note: Does not publish letters from writers outside area
Author: Jac Wilder Versteeg (Joseph Frederick)


I don't have much in common with Supreme Court Justice Clarence 
Thomas. But on one thing, we agree: Public school students have no 
right to free speech.

None. Zero.

The high court this week correctly ruled that a senior at a high 
school in Alaska had no free speech right to unfurl a banner that 
read: "Bong Hits 4 Jesus." The incident happened in 2002, when 
students gathered outside the school to greet an Olympic torch 
bearer. The student said he just wanted to get on TV.

Chief Justice John Roberts wrote the majority opinion in Morse vs. 
Frederick, concluding that since "Bong Hits 4 Jesus" reasonably could 
be read as advocating drug use, the school principal did not violate 
the kid's First Amendment rights when she ordered him to stop 
displaying the banner and then suspended him for 10 days when he gave 
her lip about it.

Chief Justice Roberts was very careful, however, to note that if the 
banner had carried a political or religious message, the outcome 
might have been different.

So, a banner that advocated overturning marijuana laws or declared 
that Jesus loves people who smoke pot might have been protected 
speech. We won't know for sure until some student has the bright idea 
to test the theory. And then, if this case is any guide, it would 
take at least five years and a ton of money to get a Supreme Court 
ruling on the matter.

That's why I think Justice Thomas has the right idea. He concurred 
with the majority opinion but would have gone further. "In my view," 
he wrote, "the history of public education suggests that the First 
Amendment, as originally understood, does not protect student speech 
in public schools."

He goes on: "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."

In 1969, in the case of Tinker vs. Des Moines School District, the 
Supreme Court granted students serious free speech rights. This 
wasn't a frivolous "Bong Hits" issue. In 1965, some students in the 
district wore black armbands to protest the Vietnam War and were 
suspended. The majority opinion by Justice Abe Fortas concluded that 
because the students expressed a political opinion without disrupting 
school activities, "our Constitution does not permit officials of the 
State to deny their form of expression."

Laudable, except I don't think that school officials in this context 
are "officials of the State." I think, as Justice Thomas contends, 
that these officials are operating as parental stand-ins. And does 
anyone want to argue that parents don't have the right to limit their 
children's right to free speech?

In a delightfully acidic dissent to the decision allowing the 
armbands, Justice Hugo Black - one of the great advocates of free 
speech protections in the First Amendment - said the ruling 
effectively would give students the upper hand over teachers. "I, for 
one," he wrote "am not fully persuaded that school pupils are wise 
enough, even with this Court's expert help from Washington, to run 
the 23,390 public school systems in our 50 States."

Children don't have a constitutionally protected right to free speech 
when they are in their parents' home. So why should they have that 
right in school?

They aren't deprived of free speech. They can go to a park and stand 
on a soapbox. But they shouldn't be able to do that at school, unless 
school officials grant them that right.

And here, I suspect, is where I would disagree with Justice Thomas 
and probably Justice Black. School should give students extraordinary 
leeway to discuss political and religious ideas. That's how, as 
adults, they become wise enough to run the schools. I would allow the 
armband protest.

And "Bong Hits"? It was stupid, but I wouldn't fire a principal who 
let it go any more than I'd fire a principal who took it down. How 
permissive schools should be is a matter for adults to settle through 
school board elections, to name just one way.

Free speech is great, in school or out. But in school, the right to 
free speech should come from parents and other adults, not from the 
First Amendment.
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