Justice Clarence Thomas is an intellectual and jurisprudential titan, and his contributions to common law, especially regarding the First Amendment, cannot be denied.
Since his appointment to the Supreme Court in 1991, Thomas has emerged as one of the justices most likely to uphold free speech claims, but that does not mean he does so in all instances.
Thomas’s commitment to free speech is never in more doubt than when the Court considers cases relating to free speech in public schools. In his concurrence in Morse v. Frederick, he disavowed the Court’s decision in the landmark case Tinker v. Des Moines ruled that neither “students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Thomas wrote that “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”
He added that “A review of the case law shows that in loco parentis allowed schools to regulate student speech as well. Courts routinely preserved the rights of teachers to punish speech that the school or teacher thought was contrary to the interests of the school and its educational goals.”
The most recent case Justice Thomas cited was from 1915. The vast majority were from before the twentieth century.
Thomas furthered this opinion in his dissent in Mahanoy Area School District v. B.L., which was decided on June 23. “The Fourteenth Amendment was ratified against the background legal principle that publicly funded schools operated not as ordinary state actors, but as delegated substitutes of parents,” Thomas argued. “This principle freed schools from the constraints the Fourteenth Amendment placed on other government actors.”
It is clear what Thomas is trying to do. As a good originalist, he is always going to make an effort to find the historical context behind a law or policy (in these cases, a student’s free speech rights in relation to their school), and duly apply that precedent to the situation at hand. The problem is that Thomas fails to recognize that the public schools of today are a fundamentally different institution than the public schools of centuries past.
The Fourteenth Amendment was adopted in 1868. In 1870, just 78% of children aged five to fourteen were enrolled in a public school, according to the Center for Education Policy. That percentage, on the surface, seems high, but it is somewhat misleading. At that point in history, the vast majority of Americans did not finish or even attend high school — that did not become common until the twentieth century.
Even though more children were attending school, public schools were still heavily localized, and most contained only one or two rooms. These facilities, if you want to call them that, bore no resemblance to large and powerful modern school districts, some of which have revenues higher than the GDPs of several island countries.
In my home state of Texas, for example, the first modern independent school district was not created until 1875. The 1873 Texas Almanac cites a desire to improve literacy as the impetus for public school expansion. While the Almanac does note a correlation between illiteracy and vagrancy, this is not equivalent to a desire to mold “good” behavior and punish “bad” behavior, as Thomas claims. It is instead equivalent to modern arguments that an educated person has more options, and is, therefore, less likely to pursue a life of crime.
This era marks the beginning of the transition to modern public school. In much of the country, many of the basic provisions of modern education did not come into place until the early twentieth century. It is thus safe to say that the modern public school is a separate institution from the public schoolhouses that preceded it. It has a different, more concrete structure, different values, and different objectives.
This argument is not a critique of originalism; far from it. It is instead a plea for originalists like Clarence Thomas to consider the education systems of the turn of the century as the progenitor of the modern school system, not the little public schoolhouses that preceded them.
Arguably the only things connecting the public schools of today to the public schools of 1868 are the words “public” and “school.” While this argument may seem semantic, it is a distinction with a difference, and can subsequently alter jurisprudential outcomes at a time when education reformists around the country are pressing for change.
Students’ First Amendment rights should not suffer as a result of a misapplication of originalism.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.