“Argue as much as you like, and about what you like, but obey!”
-Frederick II of Prussia1
Student speech
Though Americans tend to ignore it, there is an interestingly unlikely (though fragile) potential for resistance that lies coiled directly within its public educational institutions at all levels, kindergarten through higher education. The First Amendment of the Bill of Rights of the US Constitution prohibits the government from “abridging the freedom of speech.” This Free Speech Clause anchors two centuries of jurisprudence where this laconic formal phrase has interpretively evolved and been given content.. Relevant for present purposes is that, since the late 1960s, free speech guarantees have been extended by US courts into the (mostly) new territory of school children in schools. Contrary to much of the world and most of human history, children in the US have an explicit right to speak out against the state-as-educator, or to speak their minds on whatever topic, even as their very presence in school is legally compelled. Like every other legal right, students’ free speech rights are not absolute. Far from it, as I explain below, they are qualified in many ways. To the occasional astonishment of foreign observers, though, they very palpably exist. For now.
The existence of such rights provides a wonderful case study for Marxist dialectics of how a systemic internal tension can develop in unforeseen ways. In this case we have a bourgeois Enlightenment era formal freedom, i.e. speech, about which volumes can be said, including that it is associated with the augmented standing of the individual, conceived as an autonomous agent, who is required by the still-new (in the eighteenth century) mode of wealth creation that is capitalism. Production and consumption via these agents requires a much higher degree of flexibility along a host of axes such as personal mobility, assembly, ideas, contractual capabilities among employer, worker and business associates, property and, yes, communicative capabilities such as speech. It becomes much more widely recognized how, despite its annoyances, the free flow of ideas is good for business in the sense that it facilitates exchange and innovation regarding productive assemblages. It also contributes to system stability by helping safely to channel nascent social restiveness in the manner of a release valve on a pressure cooker. In the language of Nassim Nicholas Taleb, it helps guard against dangerous levels of systemic “fragility” by building in a greater degree of elasticity; in this case, potentially “revolutionary” instances of political volatility are safely internalized, and instead of becoming external forces that can shatter the power structure, they are channeled internally in ways that allow for more adaptive “antifragile” responses.2 Dissent is thereby domesticated, which should not be understood in the facile sneering manner of the would-be anarchist, but appreciated as the ingenious and largely salutary innovation that it is. Keyboard leftists tend to underappreciate it, but situations of actual revolutionary violence are not to be romanticized, as they are just as likely (if not more) to serve dark atavisms of reaction than anything civilized reformers of whatever orientation would recognize as desirable.
As it is designed to do, then, the systemic requirements for augmenting individual autonomy create ongoing internal tensions (remembering, as per the above, that the key innovation here is that these tensions are internal and thus minimize the generation of external threats), many of which are managed via the rule of law generally and in particular constitutional systems such as those anchored in the Bill of Rights. Inevitably, though, these adaptive mechanisms cause a cascade of unforeseen consequences - a process otherwise known as history. And so comes to pass the unlikely contemporary situation wherein a local community’s power structure may need to give way to 14 year-old’s contrary views about the latest war or her elders’ religious convictions. Again, world historically speaking this is counter-intuitive in the extreme. But this is how the internal dialectics have spun: medieval burghers’ needs for reliable business contracts (to pick a random thread) weaves itself down the centuries into an American high school sophomore being able to wear a t-shirt about how “Jesus was not a homophobe.”3
One must guard against some kind of progressive triumphalist picture, though; understanding history dialectically, that is, as an unfolding of internal tensions, carries no guarantee of anything. Dialectics do not function as a happy-ending machine where, by some external measure (the very idea of which is incoherent) things always get “better.” Yes, the “new thing” might be wonderful. And the “new new thing” even better. But that third generation “new thing X3” might just wreck it all, in a currently unimaginably horrible and unanticipated manner. The only guarantee in dialectics is that things will keep moving in some direction, the axiological coordinates of which are not internally determinable. Nobody can say whether the ultimate direction will be “good” or “bad” because such judgments are necessarily a function of diverse desiderata that are not necessarily internal to the developments being judged. Murder and genocide are “good” from some perspectives.
By the laws of probability, such reversals should be expected, the recognition of which is central to wisdom traditions such as Taoism. Consider the Taoist story of a farmer who lost his horse:
That evening the neighbors gathered to commiserate with him since this was such bad luck. He said, “May be.” The next day the horse returned, but brought with it six wild horses, and the neighbors came exclaiming at his good fortune. He said, “May be.” And then, the following day, his son tried to saddle and ride one of the wild horses, was thrown and broke his leg. Again the neighbors came to offer their sympathy for the misfortune. He said, “May be.” The day after that, conscription officers came to the village to seize young men for the army, but because of the broken leg the farmer’s son was rejected. When the neighbors came in to say how fortunately everything had turned out, he said, “May be.”4
The expectation that change - let alone large-scale change - should proceed in some sort of linear normatively “upward” manner is a rather obviously indefensible bias and should be discarded. Contexts and perspectives alter and, as the story of the farmer illustrates, maintaining equanimity through such shifts of fortune is a rare accomplishment for individuals.
This multi-layered historical contingency means that key components of an era, such as historical liberalism’s commitment to the progress of rights, including students’ rights, should not be understood as either guaranteed or guaranteed always to advance in either a predictable or desirable manner. This is true because it is true of everything. Thus it is wise to examine the phenomenon of student voice and the legal framework surrounding it as a highly ambivalent phenomenon, as likely to harm as it is to help. Or at the very least proceed on the assumption that a student’s right to speak, however innocuous it seems, may be capable of generating darker forces than one might imagine. This indeed is the thesis of this chapter: a certain type of legal eliminationism (a very close cousin to moral and existential eliminationism) is currently cutting its teeth on this relatively new framework of rights and its alleged “excesses,” biding its time and waiting for the right time to display itself with full force. As it happens, the eliminationist mentality has now shown itself, singularly but rather brashly, in this particular area. One does not know whether to laugh or to cry. It is a curious story, with the oddest “heroes” and “villains.”
It is not that the forces of light are all on the side of students’ rights whereas the forces of darkness are arrayed in opposition. In fact, it is hardly unreasonable to argue that the notion of constitutional rights is misapplied within a school setting or that we overdo it with the “rights talk” that has become our almost default mode for framing whatever grievances. Any number of philosophical perspectives might be marshaled in support of such a perspective. Perhaps, on balance, recognizing students’ rights does more harm than good. Perhaps young students are not developmentally equipped, that is, they are not (yet) sufficiently rational to be legitimate bearers of rights. Perhaps the identity “rights bearer” is inimical to more important identity or character sorts of virtues that we the people have decided should reign preeminent in our schools. Whether such views are ultimately defensible or not, there is nothing a priori unreasonable about them.
There exists, however, one recent and very prominent argument against students’ rights that I wish to argue is a priori unreasonable. This is to be found in the conservative activist Justice Clarence Thomas’s widely noted concurring opinion in the recent US Supreme Court student speech case, Morse v. Frederick, 551 US 393 (2007), perhaps better known as the “Bong Hits 4 Jesus” case.
I contend here that the central argument of Thomas’s concurrence should be rejected as unreasonable by all sides in the legal debate, even by those who may by whatever alternative means arrive at a conclusion congenial to his. This is because Thomas arrives at his conclusion via an eliminationist turn, which in the context of legal hermeneutics involves a refusal to engage with the relevant area of jurisprudence and instead betrays a desire for the simple elimination of opposing voices and the traditions that animate them. It is a power play in that it seeks to gets its way by brute force rather than developmentally through the internal norms of the sphere of activity that it seeks to reform. There is nothing magical about the legal sphere in this regard: judicial independence is a contingent achievement and can be extinguished, just as surely as can the autonomy of universities or any other social sphere ideally guided by unique internal norms.
Within legal hermeneutics, Thomas’s eliminationism represents a fundamentally unreasonable move in that it violates the typical developmental patterns by which legal reasoning makes sense and enjoys its very legitimacy. It is unlike “pure” and relatively untethered philosophical argumentation, which, pace the dreams of Plato’s Republic, is sufficiently lacking in immediate concrete consequences such that it can be happily irresponsible - or at least relatively freewheeling vis-à-vis its own master thinkers. While philosophical discourse may be said to be in some indirect sense answerable to its enabling historical tradition, legal reasoning is more directly and more powerfully answerable. Most notably, it contains the foundational imperative of stare decisis (Lat. “to stand by things decided”), where there is a strong sense that precedent, the sheer fact of its existence, carries its own weight and commands an allegiance that is separable from the abstract “quality” of whatever argument a judge is considering. It is commonplace in law, for example, and there are many famous examples, of a judge bowing before stare decisis against her own best judgment, were she simply free to decide the case singularly on its merits. There is nothing like this in philosophy, where the idea that one might be bound by what, say, Kant said, simply because Kant said it is anathema and would be recognized by philosophers as an “unphilosophical” obeisance (and certainly by Kant himself!). By contrast, legal history is replete with this gesture, which is even typically admired in the abstract. A notorious example of this is found by the “lone dissenter” US Supreme Court Justice John Marshall Harlan, so-named because he was the sole dissent in the 8-1 opinion in the Plessy v. Ferguson (1896) case that held racial segregation to be compatible with the Fourteenth Amendment’s Equal Protection Clause, and was overturned generations later in Brown v. Board of Education (1954), which outlawed de jure racial segregation in American public schools. Harlan’s Plessy dissent reads in pertinent part:
Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful …The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.5
This is a forceful moral, philosophical and legal judgment that builds its argument by reference to the, at the time, recently passed post-Civil War Amendments (Thirteenth, Fourteenth, Fifteenth) that freed the slaves and formally guaranteed their equal legal status. What is noteworthy for present purposes, however, is how in subsequent cases dealing with racial segregation, Harlan, despite is obvious personal predilections as stated above in his Plessy dissent, sided with segregationist majorities - and even wrote for them - on grounds of stare decisis.6 Although the practical stakes were extremely high, Harlan understood himself above all to be ensconced in a legal hermeneutical tradition that was distinguishable from whatever merely philosophical wiles might be brought to bear. It sounds strange to appreciate someone towing a segregationist line, but in context - literally because of legal context - Harlan provides an example of avoiding the eliminationist temptation, even at great cost.
To be sure, it is not that he is necessarily a hero for avoiding it, only that Harlan is a jurisprudential hero, which is far less exciting. Thomas, on the other hand, reveals himself to be indeed far more exciting than Harlan, because he shows a reckless indifference to the preconditions of his own profession’s legitimacy, like a professional gambler who throws away the charts and statistics and risks it all on one throw of the dice. Legally foolish. But exciting.
To illustrate Thomas’s recklessness, I will provide, first, an account of what is reasonable and unreasonable in the legal context of the students’ rights debate and, second, an explanation of how Thomas’s argument is, within that legal context, “unreasonable.” The first is relatively easy. As I will show, however, given the nature of its argument, the first line of discussion necessitates that the second be accomplished with careful attention to relevant detail; there are pertinent legal data to bring to bear. The quantitative bulk of this section will therefore be occupied with the second point, after which I will conclude in a more speculative vein, briefly sketching what I see as a source of Thomas’s eliminationism.
Unreasonableness and legal hermeneutics
So what counts as “unreasonable”? As stated previously, I do not hold there to be any a priori unreasonable position on the desirability of students’ rights in general. The meta-problem here is when the anti-students’ rights argument is mounted from within the legal tradition and in a certain manner. It must be remembered that the argument under consideration takes places as part of a US Supreme Court opinion where Thomas writes as Justice Thomas. Consequently, he is not simply expressing a view, say, a philosophical or historical one that he might defend (however well or poorly) when he does not wear his judicial robe. I am not arguing against Thomas in the guise of after-dinner speaker, breakfast table conversationalist, blogger, philosophy journal article author, or the like. The situational ad hominem argument is directed specifically at Thomas in his capacity as a Supreme Court justice. The subject position from which he speaks is relevant because it is firmly and ineluctably ensconced within the determinate institutional context of the federal judiciary that is its sine qua non. If Thomas were not writing from within that institutional role, no “concurring opinion” from him would exist.
This gets us close to the crux of the matter, the above mentioned principle of stare decisis - namely, the existence and persuasive weight of precedent - is the golden norm upon which all jurisprudential interpretive legitimacy is ultimately based. If one wishes to advance a meaningful interpretation within a particular hermeneutical context, one must, so to speak, play by the local rules; in hermeneutics one by definition makes meaning with reference to understandings that have built and thus make up that particular hermeneutical context. This is as true for “conservative” views as it is for “progressive” views as it is for any meaningful view. Even putatively “radical” views that seek a sharp new direction, even an overthrowing of precursor views and the assumptions upon which those views are based, must do so with reference to - or, if you like, in conversation with - the extant context that is “always already” there. Otherwise, one is not overthrowing those views, changing that tradition; the truly “clean break” would, according to the assumptions made here, be involved in something else, perhaps expanding on or, if this is possible, founding a new hermeneutical context de novo. Owing to the indispensability of stare decisis in legal hermeneutics, and especially in the context of the US judicial system, this imperative to play by the rules is doubly pronounced. For stare decisis marries this hermeneutical imperative toward meaning-making with the practical imperative of exercise of judicial authority. The two imperatives are inextricably intertwined. A Supreme Court ruling is just that: a ruling. At the High Court level, what is important is not so much whether Party A or Party B wins, though this is certainly important to A and B themselves. Rather, the wider import, that is, why the rest of us who are not direct parties to the dispute should care, consists in the precise nature of the precedent that is advanced, the rule by which future relevantly similar cases will be adjudicated. To deny this would be to deny such a basic rule for how this particular game is played that one would be playing a different game. An analogy would be with a mathematics word problem, the point of which is to extract the math from it, perhaps a rule or formula by which to solve it. If one started overly to appreciate it for, say, its literary qualities, if one got too wrapped up in what is going to happen to Johnny after he has given out all his apples, then we would say that one has missed the point, at least the mathematical one, or that one has started to play a different hermeneutical game, in this instance perhaps that of literary criticism.
The problem with Thomas’s concurrence is that he does not play the game in a way that is appropriate for a Supreme Court justice writing for posterity as part of the official case record. To be sure, a concurring opinion is considered formally to be obiter dicta (Lat. “said by the way”), that is, it is not part of the majority opinion and thus lacks the force of law; it is, formally, so much legal chatter. And in this precise sense Thomas is admittedly a bit freer in all relevant senses than if he had been writing for the majority. Yet our legal history is filled with examples of concurrences becoming influential in the context of the unforeseen jurisprudential future, becoming influential rallying points for the like-minded. A fairly recent example in education would be Justice Sandra Day O’Connor’s concurrence in Wallace v. Jaffree (1986).7 This First Amendment Establishment Clause case had to do with religious exercises in an Alabama school, and it has come to be associated in particular with the question of the constitutionality of the so-called “moment of silence” (that is, a moment of “silent meditation or voluntary prayer”) in public schools. While agreeing with the majority ruling going against the school in question, Justice O’Connor wrote a separate concurrence arguing that while the moment of silent prayer was unconstitutional in that particular case, a better-crafted moment of silence law would be able to withstand constitutional challenge and so be perfectly acceptable. And indeed subsequently states received the hint and O’Connor’s scenario has come to pass. To date, following O’Connor’s “instructions,” several states now have moment of silence laws that have effectively withstood constitutional challenge. This illustrates one of the many ways in which a concurrence can be highly significant. In fact, these days, in an inversion of the usual situation, Wallace v. Jaffree is legally noteworthy much more for O’Connor’s concurrence than for the majority opinion that, in the end, breaks very little new constitutional ground. So Supreme Court concurrences can be quite important legally and should not be ignored, particularly from a long-term viewpoint. Though qua concurrence it is not legally dispositive, what Thomas is writing here still matters within “the game.”
Thomas’s views are also significant because he has come to exercise considerable influence both outside and, by most reports, inside the Court. Politically, since his ascension to the Court, Thomas has become beloved by political conservatives, from popular radio talk show hosts such as Rush Limbaugh to the more upscale end of the ideological spectrum, where he is regularly a featured speaker at major think tanks such as the Claremont Institute, the Heritage Foundation, and the Council for National Policy among many others. He has also become a highly sought-after commencement speaker by universities and law schools. Even more significantly for present purposes, it seems that within the Court, far from being the mere follower of Justice Antonin Scalia that he was initially and mistakenly assumed to be, Thomas represents a crucially important and distinctive voice on a range of key issues and is frequently a rallying point for conservatives on the Court. He also demonstrably possesses, as in the Morse case, the courage of his convictions and has developed a track record of standing by himself among his colleagues (in conference, concurrence, and dissent), and he has in several instances brought others to his side. In discussing the dynamics of one such situation early in Thomas’s tenure, journalist Jan Greenberg argues that it “foreshadowed how Thomas, willing to be the lone dissenter from the outset, would reshape the Court.”8 Though essentially a far right activist, Thomas is a formidable intellect who not only enjoys the inherently powerful platform of the Supreme Court but also gives influential voice on relevant matters to important opinion and policy making segments of the American right. Like it or not, he is part of the policy landscape and as such even his loneliest dicta are significant.
So, again, the point is not that Thomas’s views on students’ rights are uninteresting philosophically or politically. On the contrary. It is that in the actual legal context in which they are voiced they are unreasonable. So what does he do that is so clearly against the rules? My view is that Thomas sins largely by omission in that he simply ignores all the relevant legal precedents. In fact, he simply wishes away an entire precedential area by saying that the 1969 Tinker ruling (more about which later), the main precedent establishing the existence of students’ rights, should simply not exist; Tinker was “wrongly decided.” This is all well and good for the breakfast table, the philosophy seminar, even the constitutional law class. But rejecting Tinker at this late date requires also abandoning the nearly forty years of students’ rights jurisprudence that is premised on it, not only in the area of student free speech but also in adjacent areas, such as students’ rights that have developed concerning Fourth Amendment search and seizure (for example, searches of students’ persons and drug testing9 ), Fifth and Fourteenth Amendment due process (for example, procedures for student suspension and expulsion10 ), and even in some situations marrying free speech issues with church-state separation (for example, the impermissibility of discriminating against student groups on the basis of the content of their beliefs).11 In the final analysis, the hermeneutical problem with Thomas’s eliminationism lies not with the substance of the view he ends up with, but rather with his refusal, as a Supreme Court justice, to engage the relevant legal precedents. He seeks instead simply to eliminate them. It is as if a philosopher, convinced of the falsity of Plato’s doctrine of Forms, were to “argue” her case by suggesting that the way to overcome Plato’s view is to avoid reading it or, perhaps, to pretend that Plato and his writings did not exist in the first place. One can imagine conditions under which that ostrich-like strategy might “work” (hyper-efficient censors and book burnings, for instance), but of course it would not exactly be philosophy. So it is with Thomas in relation to the law. In the end, his eliminationism is based not on legal considerations (despite a thin rhetorical veneer of “originalism”), but on extralegal ones, namely, a highly selective reading of the history of school discipline. In sum, Thomas’s concurring opinion is unreasonable because it does not engage and, indeed, in a sort of performative self-contradiction, seeks to eliminate its own hermeneutical context, without which it is merely “someone’s view” rather than a legitimate matter of judicial record.
Student speech’s constitutional framework
In Morse v. Frederick (2007), Juneau, Alaska high school student Joseph Frederick was suspended by his school principal (Morse) for unfurling a large banner reading “Bong Hits 4 Jesus.” The unfurling took place across the street from the Juneau-Douglas High School, while school was in session, in the context of a “school approved class trip” in which students were allowed to watch the procession of the Olympic Torch Relay as it passed along the street in front of the school. The banner was visible to everyone in its vicinity and Frederick succeeded in his stated goal of getting on the local TV news. From all the available facts, it appears that the purpose of the banner in Frederick’s mind was really just to get laughs. As Time magazine reported, “As TV cameras rolled, senior Joseph Frederick and several friends unfurled the infamous banner, thinking it was, according to Frederick, ‘meaningless and funny,’ just a way ‘to get on television.’”12 And indeed, maybe everyone was still having a good laugh when Principal Morse handed Frederick a ten-day suspension (later commuted to five), upon which Frederick sued, claiming that the school had violated his free-speech rights under the First Amendment. Winding its way ultimately to the Supreme Court, the case takes its place alongside a long legacy of offbeat exercises of speech that nonetheless raise serious and potentially far-reaching constitutional questions.
So what is at stake in Morse? And what then is the precise nature of Thomas’s hermeneutical error as outlined previously? Answering these questions requires an explication of the existing constitutional framework for assessing students’ free-speech claims as it has evolved over recent decades. Toward that heuristic end, it is helpful to represent this framework as composed of a series of questions to be answered upon the basis of the facts a given case presents. I have also constructed a heuristic as a companion to the narrative description of the framework.
The first question to ask is basic but deceptively simple: Is the student expression in the given instance actually speech? Or is it, let’s say, conduct? This distinction is legally crucial because, based on its literal wording, the First Amendment’s Freedom of Speech Clause explicitly protects “speech” and not necessarily the broader and more act-like category “expression.” This point is often overlooked by casual observers, for there is a persistent assumption that the Constitution protects “freedom of expression.” But it does not, necessarily; the explicit protection is for speech. The reason for this terminological austerity is easy enough to fathom. “Expression” adds an element of action or conduct to “speech.” This is to be sure an area where philosophy and law do not coexist very easily, as the latter rests much easier distinguishing “pure” speech and conduct. While philosophers may (rightly) balk at overly facile terminological distinctions, it is quite clear why those involved in designing and enacting laws must not. Freedoms of speech and conduct may and do admit of varying degrees, but overly robust notions of freedom of conduct are inimical to any imaginable legal code. “Do what you like!” in an unqualified sense would be a patent anathema to the rule of law itself; it would be less a legal maxim than a recipe for unmitigated lawlessness, a Hobbesian bellum omnium contra omnes
(“war of all against all”). Accordingly, free-speech jurisprudence,
even as it has expanded and evolved, has maintained a principled aversion toward the protection of anything roughly and readily interpretable as conduct rather than speech. So, for example, in the original 1969 student speech case, Tinker v. Des Moines, the Court carefully establishes that the black armbands worn by the
Tinker children (to protest what they viewed as an immoral escalation of the Vietnam War) were in fact “symbolic speech” rather than conduct. This is why Tinker ends up as a constitutionally relevant free-speech case and not a simple complaint about an obscure Iowa school’s dress code. Though the armbands are nonverbal, the Tinker majority rules that they are in fact “symbolic speech” because in context they possess a clear communicative intent and so contain a determinate and specific enough meaning to count as “speech” under the First Amendment.13 This is as opposed to, say, what we might call a mere “fashion statement” or some such more generalized or vague expression. The full story here is outside my present scope, but this is, roughly, why students almost always lose the very common sorts of complaints centering around school dress codes. The wearing of miniskirts, big earrings, low-riding pants and the like may be expressive of something, but whatever that is would tend to lack the specificity of message required to count constitutionally as speech. Absent contextual factors that might confer the requisite level of specificity, they therefore tend to count as conduct, and as such they are outside the First Amendment’s ambit.
The upshot of Tinker is this: expression that is in fact determined to be student speech, whether symbolic or the ordinary verbal kind, is eligible for constitutional protection, provided it ultimately passes what has come to be known as the Tinker test.14 That test asks whether or not the speech in question causes a “material or substantial disruption” of the educational process at the school. The qualifiers “material” and “substantial” are present in the formula in order to emphasize that the disruption must be a serious one, rather than merely a brief annoyance or distraction. This insistence is also meant to guard against possible and easily imaginable abuses of the Tinker test where a school official may be tempted to shut down student speech for fear of generating controversy or, as everyone says these days, because someone might be “offended.” That sort of thing is not supposed to be good enough as a rationale for stifling speech. There are rare circumstances where one can utilize the Tinker test proactively - for example, where a climate of, say, racial tensions has resulted in fights and student walkouts, a school principal could ban a provocative speaker on racial issues for fear of continued serious disruption. But on the whole, and outside such extraordinary circumstances, the Tinker test is designed to be used reactively, in response to actual serious disruptions. This reactivity is a safeguard against school administrators following a time-honored instinct to contain controversy, not to ruffle feathers, and so on.15 Tinker recognizes that the “marketplace of ideas” demanded by a free and democratic society will occasion a bit of turbulence now and again and that students, as emerging citizens, need to be able to experience some of this.16
In a larger frame, the Tinker test is but one example of how basic constitutional rights, as restraints on government, are to be weighed against the varying intensity of the government interest at stake. Legal scholar James Ryan persuasively argues that, as a rule, in this weighing process the basic rights and governmental interests are adjudicated in a sort of inverse proportion to one another. That is to say, in weighing the competing interests, the more prominent the governmental interest appears to be, the basic right at stake will tend to be regarded as less decisive. So, according to Ryan, to reach a reasonable balance between educational goals and student rights, therefore, one must distinguish between the true ‘business’ of the public schools from the goals that fall outside of that sphere.17 To look at it in another way, the closer one gets to the core of the governmental sphere at issue - for example, health care, tax collection, education, the military - the more likely it is that the “thicker” sphere-specific concerns will trump the “thinner” constitutional norms. To illustrate with an extreme example, even active duty soldiers enjoy a degree of free-speech protection, but those diminish to near a vanishing point on the battlefield. In all but the most extreme examples (such as the Nuremberg war crimes), soldiers’ speech involving, say, questioning or protesting superiors’ orders is not protected. Refusing battlefield orders could even be grounds for the death penalty.18 In an analogy with education, the classroom is like the battlefield, the central site wherein the government’s compelling interest is transacted. If the military’s essential function is to fight and win wars, schooling’s essential function is to engender learning in students, which is presumed to take place most importantly in the arenas where instruction is deliberately attempted.
Given current institutional arrangements, this will be thought to be classrooms along with, perhaps, a few other sites (such as assemblies, athletic competition, meetings with administrators and school counselors and suchlike). Given this dynamic, the Tinker test will tend to be most strongly weighted toward the school where the venue is, so to speak, on the front lines of instruction. If instead of her silent black armband, Mary Beth Tinker had chosen to jump atop her desk with a megaphone in the middle of math class, by causing the requisite disruption she would have lost her case. So, once the presence of a bona fide instance of student speech is established, how that speech claim stands with the Tinker test will be a primary consideration. Yet it is by no means the only one. In fact, prior to any application of the Tinker test, it must first be determined whether or not the content of the speech in question is determined to be “vulgar” or otherwise “uncivil” or age inappropriate.
The matter of vulgar and otherwise age-inappropriate speech was addressed in Bethel v. Fraser (1986), which involved a student council election speech laden with “sexual innuendo.”19 In Fraser the Court hands a double victory to schools’ in loco parentis by allowing them both to define vulgar speech and ban it. This gives the school wide latitude to act in such cases, especially in the absence of any reliable legal definition of obscenity; one must simply “trust” school officials not to abuse their discretion here.20 The Fraser ruling means, then, that for all practical purposes any speech that can reasonably be categorized as vulgar is off the table constitutionally and will not be protected. The verbal expletive and the t-shirt bearing an obscene message can by and large unproblematically be punished.
Especially pertinent to the bong hits case, examples of the wider category of “age inappropriate” would be speech that could reasonably be seen to be advocating illegal activity (more on this later), including activity that would be illegal for school-age children, for example, tobacco and alcohol; the school can fairly unproblematically ban depictions of pot leaves (or, yes, bongs), along with Jack Daniels, Joe Camel, and the like.21 The school could probably also ban something like an anti-abortion demonstrator’s graphic depiction of an aborted fetus, on the movie ratings-like grounds that the images are too disturbing for young children. What most would regard as the “commonsense” norms of adult society hereby hold sway; the unmistakable tone of the Fraser opinion has the air of “the grown-ups are talking now, kid.” Despite its aura of obviousness (to most people), the ruling is legally necessary as a complement to Tinker because not all (or even most) instances of pornography, vulgarity, obscenity and so on are materially or substantially disruptive. Much of it, in other words, would pass the Tinker test and so would have to be permitted but for the discretionary range Fraser authorizes.
Interestingly, in reaching beyond the realm of formal instruction in order to chase down vulgar speech wherever it may exist on campus, the Court formally recognizes a broader role for schools than the formal curriculum, a role that includes larger educational aims having to do with schooling’s socializing mission, such as moral and citizenship education: “The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order.”22 In this era of obsessive standardized testing of a narrow range of competencies, it is instructive that the United States’ highest court has recognized that there is more in heaven and earth than the formal curriculum. The constitutional permissibility of this broader role should be kept firmly in mind. As we shall see in the final Morse ruling, it allows for a certain interpretive elasticity at crucial points.
The school may also restrict speech occurring in the context of a “school-sponsored activity.” In a case involving prior-restraint censorship of a school newspaper, the Court ruled that because the newspaper was part of a journalism class and was otherwise directly underwritten by the school, the school had the right to control its content, so long as it could produce an educational reason for the restriction.23 This last consideration is tantamount to “anything goes” because it is almost always easy for school officials to come up with some educational reason or other. In the newspaper case the educational reason was that of teaching the norms appropriate to good journalism, in this instance securing a balance of viewpoints and going to greater lengths to preserve informants’ anonymity. Because the principal alleged violations of these norms in students’ feature-length stories about divorce and pregnancy, he was armed with the needed educational rationale for censoring the school-sponsored activity that was the paper. Even though Kuhlmeier is famous as “the student newspaper case,” it is important to remember that the precedential category is the broader “school-sponsored activities” and so would include venues such as sports teams’ practices and games, a high school spring play, the yearbook and others. Most anything students are doing under the school’s official imprimatur would count. An example would be, let’s say, at a football game the sideline cheerleaders were chanting disrespectful cheers directed toward the opposing team. Were they punished for it, they would likely lose any free-speech claim because the cheerleading squad is a school-sponsored activity and for this reason the school has discretion to restrict the speech so long as they act with an educational purpose, not hard to grasp in this example, of something like moral education, teaching proper sportsmanship, or the like. Anticipating considerations relevant to Morse, a school field trip, to a museum or wherever else, would almost certainly count as school-sponsored.
The one important exception is where the school-sponsored activity has created what is known as a “public” or “open forum,” where a heterogeneity of views is invited or otherwise solicited. This could be either a physical place, such as a campus quad or a community bulletin board, or it could be a less tangible state of affairs, such as the situation, obtaining in most US public high schools, where a large range of student groups and clubs are allowed to exist, draw members, use school facilities and so on. (In legal terminology, making this determination is known as a “forum analysis.”) More precisely, these would be considered limited open forums in that, for reasons outlined previously, schools can restrict speech and, a fortiori, expressive activities that are age-inappropriate, violent, or the like. For instance, the school does not have to allow the “Beat Up Little Kids and Steal Their Lunch Money Club,” the “Pornography Viewers’ Club” or the “Cuban Cigar Aficionados Club.” (Much of this would in any event be taken care of by the Fraser decision.) Apart from beyond-the-pale exotica like these, however, when the school creates an open forum, it is obliged to depart from the easier Kuhlmeier standard of “censor so long as one gives an educational reason” and must instead revert back to the old standby of the Tinker test. So if the forum analysis yields the determination that the student speech occurring in a school-sponsored activity also takes place in a (limited) open forum, the speech would be protected so long as it does not cause a material or substantial disruption of the educational process. The forum analysis is an important item in the Morse case because if the Torch Relay event were to be considered a (limited) open forum, then, even though it may be a school-sponsored activity or trip, so long as it did not violate anything pertaining to the “limited” qualification of “limited open forum,” it would be subject only to the Tinker test of disruption. Given the absence from the case record of any evidence of an actual disruption, such a consideration could well be decisive.
One last significant consideration is that schools may always enforce reasonable “time, place, and manner” restrictions on any type of student speech. They just have to be “reasonable,” which here means having a rational relationship to some clear educational purpose, not merely serving as a pretext for shutting down the speech altogether. So it would not be reasonable to say to the antior pro-war group, “You may pass out your leaflets from 6:50–6:55 AM on the southwest corner of the baseball field.” However, it would be reasonable to say to them, “You may not pass out your leaflets from 3:00–3:30 when school buses are being called because it causes logistical problems like hallway bottlenecks, students being distracted from hearing their bus numbers, and so on.” The Tinker decision emphasizes this point:
Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom (393 US 513).
As usual, there is a great deal of fluidity in the preceding usage of the term “reasonable,” but its proper usage here is usually clear enough.
The bong hits case
Now back to the bong hits case, this time suitably armed with a working knowledge of the student free-speech framework. How to assess the case? There are certainly several interpretive pressure points whose resolution could steer the analysis one way or another. And while this essay is not the place for a detailed defense of a particular analysis, I will suggest that there is at least a range of reasonable responses to the case, including, for the most part (save, I would argue, for one area), Chief Justice Roberts’s majority opinion siding with the school principal. I mean “reasonable” here in the most minimal hermeneutical sense: a reasonable interpretation is one that takes into account the extant free-speech framework by justifying whatever resultant decision with reference to it. So I am defining “reasonable” simply as playing by the legal rules that have been established over the last half-century.
My own view would be, first, that the “Bong Hits 4 Jesus” banner was unfurled in the context of a school sponsored activity (this is agreed to by just about everyone), despite the rather bold claim by Frederick that since he was late to school that day, did not check in with the school office, and went straight to the torch-bearing parade event, he therefore was not officially in attendance at school on the day in question. No one seems to accept Frederick’s argument on this particular point. Joining classmates in what amounts essentially to a school field trip, whether or not one’s attendance box was checked off by the front office, seems pretty clearly to be equivalent to coming to school. So far so good. Note that this establishes that Frederick is at once placed in a different category from the Tinker kids, in that the latter’s armbands were not being worn in the context of their participation in a school-sponsored activity, but rather were their own individual expression during the course of a regular school day. (Perhaps if they had worn their armbands on a school field trip, we would have had a different ruling.) In line with the student speech framework, so long as the forum analysis does not indicate the presence of a public forum, the school has the ability within the “school-sponsored activities” category to censor so long as an educational reason can be produced for doing so. There is surely room for reasonable disagreement here, but I think it is highly unlikely that a school field trip that is taking place for a specific educational purpose would count as a public forum.24
There are two possibilities here that seem to me equally viable. First, following Kuhlmeier, would be to argue that Morse was within her rights to halt the expression because of its perceived incivility. I think it could be seen as plain goofing off, really (the students never claimed any agenda other than getting laughs and trying to get on television), and, as such, boorish behavior that was neither welcoming nor polite to the Olympics people passing by their school. It is simply disrespectful. It should therefore be punishable along the same lines as one might punish members of an athletic team for a display of bad sportsmanship. I think this would be the right judgment to make, and it could be differentiated from some nonfrivolous message such as, say, some political statement about the International Olympic Committee. This “moral education” argument would reference that part of Fraser that recognizes the legitimacy of the school’s socializing mission. A second possibility would be to circumnavigate Kuhlmeier altogether by recognizing that “Bong Hits 4 Jesus” seems reasonably to be construed as advocating illegal activity. I agree with the majority opinion on this point. I think it is clear that the phrase “bong hits,” understood within our particular cultural context, clearly means marijuana smoking and only with a wink and a nod and a chuckle might one say that “oh, it can be used for tobacco, too.” That is true. One could smoke shredded cardboard in a bong, too, I suppose. But even tobacco is now illegal for minors (in Alaska the age limit is 19), so even the purported tobacco use would still be illegal. So, since the students are in school - even though across the street, since they are participants in a school-sponsored activity, they are in school, just as surely as is a sports team on an away game - the “Bong Hits” banner has no greater claim to constitutional protection than would a Jim Beam T-shirt or a soccer jersey sporting a beer logo. Either or both paths of analysis would seem sufficient for a more-than-reasonable ruling on the case.
The majority opinion agrees in part but then takes a rather dodgier tack. Capitalizing on the previously noted elasticity of Fraser’s conception of the school’s socializing mission, it places great (and in my view undue) weight on the idea that the “Bong Hits” banner does not accord with the antidrug message that the school perceives to be an important part of their “educational mission.” The very substantial worry here, as Justice Alito wisely cautions in his own separate concurrence (joined by Justice Kennedy), is that this educational mission argument “can easily be manipulated in dangerous ways.”25 For the majority opinion could be read to endorse the view that students lack free-speech rights concerning any areas that the school has designated as “part of its educational mission.”
Consider how badly this could go. For example, schools these days commonly take students’ achieving “excellence,” usually defined in large part by their doing well on standardized state tests, to be fundamental to their educational mission. This would seem to mean that under Morse, students would be punishable for criticizing standardized testing. The main problem here is that what is or is not a school’s educational mission is in large part a moral, social, and political matter and, as such, under just about any theory of democracy, a paradigmatically protected free speech zone where citizens must be allowed - if not encouraged - openly to debate important matters of public concern. As Alito warns, “the ‘educational mission’ argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed.”26 This would cut directly against Tinker’s core argument about the centrality to democracy of a marketplace of ideas, even in a public school setting. Contrary to the opinion of Justice Breyer’s interesting Morse dissent, which centers around both the potential ambiguity of Frederick’s banner and his (rightful) concern that the majority opinion could be construed as prohibiting students from protesting matters of public concern, such as whether or not, say, tobacco or marijuana ought to be legal. So could a student advocate a change in drug laws? This is a difficult issue, not fully addressed anywhere in the opinion, including in Breyer’s dissent. On the one hand, one can share Breyer’s concern for the need for robust debate about what our laws should be even - and perhaps especially - in controversial areas. Yet the special setting of schools gives rise to singular problems, where psychological and civic immaturity could enhance an implied threat of violence. What if a student wanted to express the view that, say, rape or anti-lynching laws ought to be eliminated? In such a case, we might not be so confident about the distinction between advocating illegal activity itself and advocating for a change in the law. Perhaps some laws are so basic to civil order and personal security that advocating overturning them can implicitly contain a threat against a defined group. Of course context could be all-determining here. One can very easily imagine a reasoned discussion about some aspect of rape laws as opposed to, say, an in-your-face and sloga-neering “rape should be legal!” statement directed by a male student specifically at female classmates. Though formally advocating a change in laws rather than the illegal behavior itself, such an alarming situation might even be appropriately considered to be “disruptive” under the Tinker test.
This quasi-totalitarian insistence on kids not being allowed openly to question whatever school officials say is their educational mission must be abandoned. Fortunately, the majority opinion gives no indication that it aims to overturn the entire student speech framework that has Tinker at its core, and so one hopes and assumes, along with Alito, that in time the hyperbole that occasions this incongruity will be rectified. Still, with this priority placed on educational mission, they may well have planted the seeds for something unforeseen to develop.
This brings us to Thomas’s concurrence, which is another sort of creature altogether. Though I see the majority opinion as ultimately wrongheaded, I recognize it as a basically reasonable view in that it builds upon the relevant legal precedents. (Even where one might argue it misconstrues them, as I have just done, it has the appearance of an honest enough effort.) In other words, the majority opinion respects its hermeneutical context. Alito’s aforementioned concurrence along with Justice Breyer’s dissent quite clearly and elaborately do so as well. By contrast, what Thomas seeks to do is write his own preference into law regardless of precedent, candidly asserting his argument that the Tinker test “is without basis in the Constitution.”27 Thomas’s argument is not complex. It is simply this, elaborated piecemeal using selected quotes from educational historians concerning school discipline: “the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”28 Let us overlook, for starters, that there were no public schools in colonial times (at least not by any definition recognizable today). Let us overlook also that the Constitution, “as originally understood,” allowed many things that would today be regarded as unconscionable and at this point wholly alien to now well established moral and political traditions, such as - to name but a couple of examples - slavery and the permissibility of one of the states of the union establishing an official religion.29 Most salient for present purposes is Thomas’s sheer willingness simply to cut out a whole well-established area of legal precedent on the basis of a wishful “order and discipline” view of the way things once allegedly were, a longing for the days when, supposedly, “Teachers commanded, and students obeyed.”30 His alleged “originalism” is inconsistent even on its own terms. He acknowledges that “colonial schools were exclusively private” and that public schools did not flourish until well into the 1800s, generations after the Constitution was written (1790). But somehow the fact that the nineteenth century did not recognize students’ rights seals the deal for the “originalist” rejection of them.
This is at the very least a strange originalism, one that does not start at the 1790 origin, but arbitrarily establishes its “origin” at a later point where legal norms happened to agree with the view currently on offer. Originalism, I would suggest, becomes something else when one is free idiosyncratically to pick and choose one’s preferred “origin.” It seems an unfair move simply to locate a period in history where one’s view appears to be agreed with and fix that period as one’s “origin.” While this may function well as a debate tactic, from a hermeneutical point of view it is a highly suspect argumentative move, as it neatly circumnavigates the body of legal precedent upon which it in general is allegedly built, while at the same time aggressively donning that endeavor’s aura of legitimacy and prestige. It is like merely pretending to give to a charity and then basking in the resultant warm glow of public opinion.
And what of the history Thomas brings to bear? Perhaps Thomas’s hermeneutical context has simply been misconstrued. Maybe what has happened is that he has decided to enter into the hermeneutical context of the history of education and is merely recounting the facts. While the final judgment about Thomas’s historical accuracy best rests with the historians, it seems rather obvious, even to this untrained eye, that Thomas’s history-quoting defense of his position is so cursory and selective as to be patently deficient. Such suspicions are corroborated by at least one respected historian of education, Jonathan Zimmerman, who rejects Thomas’s picture out of hand. On the question of Thomas’s reliability as a historian, then, I will provisionally lean on Zimmerman’s authority. Regarding early efforts to instill school discipline, Zimmerman comments:
Here’s the part of Thomas’ opinion that would be relevant - if it were true. But it’s not. Yes, teachers tried to establish strict order and discipline in early American schools. As often as not, however, they failed.
Consider the 1833 memoir of Warren Burton, a New Hampshire minister. When faced with a particularly cruel teacher, Burton writes, his classmates revolted. They tackled the teacher, carried him outside and threw him down an icy hillside.
The theme appears in other memoirs and especially in fiction from the 19th century, which depicts unruly students - usually boys - challenging or mocking teacher authority. Think of Tom Sawyer lowering a cat by a string to snatch his bald teacher’s wig. Such stories resonated with Americans because they understood - in ways Thomas does not - the chaos and violence that pervaded so many public schools.
So Thomas can spare us the nostalgia. Our schools were never the paragons of discipline he imagines.31
Thomas’s view does not seem promising, then, as a rendition of straight historical truth. And as shown in the preceding analysis, neither is it a real engagement with legal precedent; for Thomas, if something ought to have existed (history), it therefore does exist, and if it ought not to have existed (legal precedent), it therefore does not exist. One highly sympathetic legal scholar, Henry Mark Holzer, lauds Thomas’s approach to jurisprudence as “utopian originalism,” and perhaps Thomas’s wishful stance in relation to the historical and legal past is a hallmark of that approach.32 Whatever it is called, though, it seems to be neither legal nor historical analysis in any straightforward sense. There is something else going on. So if neither history nor law can by themselves account for Thomas’s convictions regarding this case, what else might?
Elimination and restoration: Thomas’s nostalgia
There is no sure way to answer this question. I will however follow the hints laid by both the admirer Holzer’s “utopian origi-nalism” and the critic Zimmerman’s “nostalgia.” For convenience, I will use the latter as a catchall term and so examine nostalgia as at least part of the explanation for Thomas’s view. In contrast to Zimmerman, though, I suspect that the phenomenon of nostalgia, as possibly here evidenced, may be more interesting - and possibly more disturbing - than what is conveyed by his dismissive rebuke “spare us the nostalgia.” To say that Thomas suffers from nostalgia may be more a beginning than an end to explanation.
Let us enter Thomas’s extra-legal and (on Zimmerman’s authority) extra-historical dreamscape and consider a few telling lines from his opinion:
Teachers instilled [a core of common] values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disre-spectful or wrong. Rules of etiquette were enforced, and courteous behavior was demanded. To meet their educational objectives, schools required absolute obedience…[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.33
Hallmarks of at least three relevant kinds of nostalgia are borne by these excerpts. First, there is a quasi-historical originalist type that seeks, by means of an implied narrative of decline, the emotional (or perhaps aesthetic) satisfaction in an allegedly simpler past in which order and discipline were overriding and unquestioned principles in the governance of schools. In this blessed lost world, “Teachers commanded, and students obeyed.” Second, and relatedly, there is a more specifically legalistic nostalgia, again for a simpler world, wherein the doctrine of in loco parentis obviates the need for rights, and the whole messy set of questions about democracy and schooling are safely put away, out of sight, in favor of an “absolute obedience.” Insofar as it would actually land us anywhere, Thomas’s legal time travel would land us pre-Tinker, when in loco parentis needed to make almost no concessions to students’ rights.34
To punctuate this point, note the sharp and substantive contrast between Thomas’s sentiments and those expressed by the Tinker majority in articulating why students should have speech rights:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.35
This sort of thing just does not enter into it for Thomas; on his view, “closed circuit recipient” is unambiguously the proper role for a school student. Third, there is a more intimate, gut-level form of nostalgia as a lived experience, in the present instance implied in Thomas’s concurrence as representing the “in my day” sort of mentality that, while it is never made explicit, seems like an éminence grise that drives much of the discussion. One guesses this by subtraction, as both law and history have been removed as explanations for the vehemence and selectivity of his anti-students’ rights view. Indeed, in a recent talk to high school students, Thomas wondered, “how can you not reminisce about a childhood where you began each day with the Pledge of Allegiance as little kids lined up in the schoolyard and then marched two by two with a flag and a crucifix in each classroom?”36
Putting it all together, Thomas seems to provide a prime example of what Svetlana Boym terms “restorative nostalgia,” a tendency that “attempts a transhistorical reconstruction of the lost home,” a form of nostalgia that is “at the core of recent national and religious revivals.”37 In words that could not more perfectly apply to the present case, Boym further elaborates how restorative nostalgia signifies a “return to the original stasis, to the prelapsarian moment. The past for the restorative nostalgic is a value for the present: the past is not a duration but a perfect snapshot.”38 Time itself stands still. Were it only illustrated, Thomas’s concurrence surely would feature etchings and photos of straight rows, good postures, firm teachers, and the like. This would all be taken as further documentary evidence of “how things were.” This points to a telltale feature of restorative nostalgia according to Boym, namely, that it “takes itself dead seriously.”39 It is not an ironic or humorous stance. There is little self-consciousness here, for the restorative nostalgic does not see himself as a nostalgic, as an imaginer of an “imagined community.”40 Rather, “their project is about truth.”41 Like a contemporary nationalist resurrecting archaic symbols, Thomas’s selective marshaling of history - or, more properly, carefully-selected elements of history-related mythos - is meant to be taken as the truth of that history, the real lesson for us all to learn. To take an extreme example from recent history, pursuant to the Serbian nationalist’s agenda, it is not so much necessary for one to learn “the facts” of the Battle of Kosovo (1389) so much as it is that one learn, by whatever curricular means, the predefined real lesson that has, one supposes, something to do with the indomitable, Turk-defying spirit of the Serbian people.
This in its most extreme form is the project of the restorative nostalgic, the quite clearly pedagogical one of offering “a comforting collective script for individual longing.” The dissatisfactions of the all too ugly present (Unruly students! Behavior problems! Disrespectful youth!) are refracted through the retrospective looking glass into a happily inverted past containing all the desired and opposing qualities.42 In a phrase, this is the mentality of “the good old days” where the actual level of “goodness” is irrelevant.
Further, as Boym points out, the more intense the restorative project, the more selective the history must be (or law, as in the present circumstance). This makes logical sense. And it helps calibrate more precisely where Thomas is as a would-be restorer. His project here is unhidden (and, in its own way, admirably transparent): he wants to eradicate an area of rights, so the history supporting his alleged originalism is just selective enough, but no more so than it has to be. So despite its potential legal dangers, particularly its corrosive potential for other students’ rights and for rights in general, it is necessary to under- stand that Thomas clearly does not go over the cliff and into the most intense and feverish renderings characteristic of modern fascists and contemporary ethnic cleansers. Those peoples’ kind of “history” tends to be out-and-out fabulist, for example, blood and soil, Teutonic heroes, Protocols of the Elders of Zion and other cartoon-ugly ethnic villains undertaking conspiracies. As it happens, Boym does mention the adoption of conspiracy theories as another hallmark of restorative nostalgia; Thomas does not explicitly do this, although it would seem that for him, albeit obliquely, “liberals,” “left-wing activists,” and the like are the ones responsible for the students’ rights calamity of recent decades.43 Yet, via his skewed and selective reading of history, Thomas merely takes baby steps into the eliminationist realm, the psychotic dreams of mass erasure out of which have sprung so many of our age’s waking nightmares. His history is merely a bit selectively skewed. So it is important to maintain a sense of proportion about Thomas and not overstate things. At the same time, the experience of the last century has shown that as a collective phenomenon restorative nostalgia can be culturally and politically explosive, and its precise conditions of combustion are not always predictable. Thomas represents a symptom, in the legal realm, of the eliminationist death dream that neoliberalism has for some time been carrying forward in the socio-political realm. Just as neoliberalism takes us beyond erstwhile workers’ exploitation and into an eliminationist posture toward them, Thomas’s restorative nostalgia does not engage its immediate hermeneutical context and so alter it in the “normal” jurisprudential mode. Rather, it seeks to circumnavigate its context altogether by locating an allegedly congenial point in illo tempore - in this case the little red schoolhouse of “the good old days” - and, as if channeling Scotty on Star Trek, beaming himself down into it, the inconvenient intervening centuries be damned. Like the neoliberal true believer who glories in a fantastical Ayn Randian self-made Übermensch who can sneer down at the rest of humanity from his icy moral perch, Thomas’s originalism-cum-nostalgia creates a fantastical authoritative Schoolmaster who “in the olden days” once upon a time heroically guarded the virtue of our youth. Until the Fall, at least, when both Übermensch and Schoolmaster were crucified due to the machinations of The Enemy, that is, the rest of us.
It is not that it is illegitimate to decry excessive proceduralism as “rights talk” in schools and elsewhere.44 This is well-traveled territory and understandably so, as there is much to critique in our myopically rights-obsessed vocabulary and the culture of whining litigiousness with which that vocabulary can become associated. Particularly in education, so often the trump-like assertion of a right functions as a substitute for thinking and as an end to conversation. Neither is it unreasonable in itself to raise the question, as Thomas does, of whether Tinker was rightly decided in the first place, along with the larger question of whether and to what extent constitutional rights ought to extend to students in public schools; it is not philosophically irresponsible to oppose students’ rights. (I would not think it a priori philosophically irresponsible to defend any view.) There are perfectly reasonable arguments against them, in fact. The problem with Thomas’s concurrence does not lie in the realm of nuanced argumentation, but with his (putatively) restoratively nostalgic approach that, not just accidentally but positively, requires him to “rebuild the ideal home” by means of emotive rhetoric and historical distortion.45 This problem is magnified because of the temptation to use the position as a bully pulpit to which even a lone concurring or dissenting Supreme Court justice is subject at all times. Even a Supreme Court justice’s most idiosyncratic views are printed up in the official case record as concurrences or dissents to be widely discussed and debated, and they are fated to be part of that official record for posterity. For this reason alone, and also for the reasons mentioned at the outset concerning his political prominence and high degree of internal influence on the Court, no matter how “lone” may be some of Thomas’s dicta, his view unfortunately but inescapably matters and so must be addressed.
I reemphasize that his concurrence is not the majority opinion and as such it does not have the direct force of law. Yet the bully pulpit has laws of its own, and it is clear that Thomas’s wholesale rejection of students’ rights as a historical and legal “truth” has become the most noteworthy, or at least newsworthy, aspect of the public discussion of the Morse ruling (as a quick Google search will readily confirm). Thomas succumbs to the ample temptation available to present himself authoritatively as a legal and historical truth-teller.
Even so, at that late point, the basic legitimacy of his presentation might have been saved, but for the eliminationist nostalgia. What the nostalgia does is cause him to engage in a legally indefensible temporal elision, a setting back of the clock. It is one thing to take on a relevant section of the tradition as it has evolved, in this case the established framework for assessing student speech claims, and show why it ought to be unraveled, explain where the wrong moves were made, and otherwise argue for and justify one’s position. This would describe a responsible hermeneutical behavior that requires too much careful attention to detail to allow for the more fleeting and otiose emotional pleasure of a cathartic release of the “damn it all to hell” variety.
If the choice is for truth over emotive release and what Friedrich Nietzsche calls “metaphysical comfort,” one must seek to engage rather than eliminate that with which one disagrees, in scholarship as in life.46
The student speech bubble
As the gearing of neoliberal capitalism proceeds apace, we are presented by good-hearted activists with a can-do optimism regarding how “the people,” that is, humanity at large, can push back against the system, against those at the helm of the encompassing machine. One constant thought is that we can educate ourselves out of the predicament, the more the better, primarily via an augmented and more equitable distribution of higher education. If they know the truth then the truth shall set them free, to paraphrase the Platonic motto. Yet as we have seen with the existential trap represented by student debt, the current institutional mechanisms for offering this higher education seem almost irrevocably intertwined with the institutional mechanisms that are, allegedly, to be overthrown. Would that going off to college were akin to going off to join the resistance! At present it is more like signing one’s life away to debt servitude. Alternatively, one might posit, there is for the moment, at least in the US, a window of opportunity, which opened during the Vietnam era which, despite the best wishes of those such as Clarence Thomas, has not yet closed. Here it is possible to imagine the voices of students themselves being heard through the exercise of their free speech rights. And indeed there are many examples of conscience in the form of individuals - including children - and small groups not allowing themselves to be cowed by bullying authorities and narrow minded local communities: from the atheist teenager who stands up alone against state-sponsored proselytizers to the grade schooler who refuses to parrot what to his mind are the hollow promises of the Pledge of Allegiance’s commitment to “liberty and justice for all.”47 These are the kinds of people who have always made things better, in the long run, even for those who myopically style them their enemies. It is an all-too rare occasion to have pride in a system that enables such gestures and those voices should be cherished and supported whenever they appear amidst the darkness.
But from a systems point of view, it is easy to see the trap laid by Morse - and not just by Thomas but, even more importantly, by the majority. What are to be allowed are students’ individual expressions of preference, in the Brand A over Brand B sense. The moment an item of student speech challenges that which may be judged to be outside the inherently elastic parameters of the school’s “educational mission,” which is to say, anything that actually might substantively threaten systemic aims and purposes, all bets are off and students are to be managed as the long-term problems most of them are doomed to be in the jobless future of the neoliberal train wreck. As it always has at key points, the US Supreme Court seems willing in this area to throw everything away the moment privilege is actually challenged. On a larger scale, in the 1970s when racial desegregation and school finance equity began to be taken from an elite point of view too seriously, that is, to the point that such efforts threatened wealthy white suburbanites, the Court was quick to find a rationale for halting racial mixing at the gates of the suburbs (Milliken v. Bradley [1974]), and tax monies from reaching poor urban and rural kids (San Antonio v. Rodriguez [1973]). Rhetorical gestures toward “helping” minorities and the poor are welcome, but actual challenges: not so much. Vis-à-vis students’ rights, the Morse decision fits firmly within that status quo-preserving mode; any actual exercise of student voice must be legally hemmed in, the majority playing, as it were, the “good cop” who simply wants to help schools cohere around their “educational missions,” and Thomas playing the “bad cop” who wants to disenfranchise students altogether in service of a proto-fascist “days of yore” in which roles were clear and The Father ruled.
On the ground, as the “educational mission” of schools moves ineluctably even further toward warehousing and surveillance - pre-jail - then remaining intra-institutional speech rights will easily be quashed. Especially post-Dunblane, Columbine and Sandy Hook (and, I’m sadly sure, further disasters), “safety” will easily trump all and that which is “disruptive” will undergo a magical metamorphosis into childhood and adolescence themselves (both of which are, after all, inherently disruptive.). Just as the exploiting of workers will be looked back upon with fondness as symptomatic of better times, so too will today’s students’ rights controversies seem like “problems” we would love once again to have. Perhaps years hence they will be studied for their exoticism. It is strange, in fact, how the overflowing of civil liberties onto students maps chronologically onto the period of post-war growth and prosperity, that period (until the 1970s) when competitive capitalism was still turning profits, before the fated arising of the financialized bubble machine. As the Morse majority illustrates, following closely in the wake of the falling rate of profits seems to be a falling rate of personal freedom, the kind of thing that gets noticed largely only as it is taken away. This should perhaps not be surprising, after all, to students of the political economy of the twentieth century, for example, the hyperinflated Germany economy of the 1920s that did not, in retrospect, turn out so well for anyone.
And so once again, as always, we look backward to see forward.
Once Upon a Time there was a world in which blue collar parents had stable jobs and raised their kids in decent schools where they could do things like protest against the nation’s wars. In Illo Tempore.