JUSTICE THOMAS WOULD SAY STUDENTS' CONSTITUTIONAL RIGHTS END AT SCHOOL HOUSE GATES

Another look at Morse vs. Frederick, the case where Chief Justice Roberts writes in a 5-4 decision that high school authorities "may take steps to safeguard those entrusted to their care from speech than can reasonably be regarded as encouraging illegal drug use."

Frederick, the high school student, unfurled a banner at a school-sponsored event that read, "BONG HiTS 4 JESUS." Morse, the principal, thought the banner and the saying encouraged illegal drug use, in violation of established school policy. She ripped the banner from Frederick's hands. Frederick sued the school district and Morse on grounds that the school and principal violated his rights to free speech under the First Amendment.

The other four conservative members of the Court (Alito, Scalia, Thomas and Kennedy) joined Roberts in holding for the principal and the school district and against the student. The holding is quite narrow when you read it closely. Perhaps happily no real damage has been done to a student's constitutional rights. Speech that encourages illegal drug use can be prohibited, but the Court said little about speech on any other topic.

Okay, assuming arguendo that the holding is correct (which I seriously doubt), how would this Court and its conservative justices rule in the event that Frederick held up a banner that read, "Pope Benedict is wrong on abortion"? Or "Bush is a War Criminal"? Or "Alaska Should Allow Minors to Drink"? Or "No Justice, No Peace"?

None of the above banners "encourages illegal drug use." Would the Court also deny any and all rights to free speech to students in high school? The opinion of the Chief Justice said nothing about statements other than those that encourage illegal drug use. However, Justice Thomas apparently would deny all rights of free speech to students in school.

Writes Justice Thomas:

"In the light of the history of American public education, it cannot be seriously be suggested that the First Amendment "freedom of speech" encompasses a student's right to speak in public school . . . I see no constitutional imperative requiring public schools to allow all student speech."
In other words, Thomas would overrule Tinker v. Des Moines Independent Community School District, where the Court recognized that a students right to free speech does not stop at the school house gates.

"I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so."

Tinker involved a group of high school students wearing black arm bands to school to protest the VietNam War. The school ordered the arm bands off. The Tinker Court found the arm bands not disruptive of the school's educational mission, and therefore, allowable as an expression of a student's constitutional rights.