Published Online: October 17, 2011
Published in Print: October 19, 2011, as On Students' Rights, an 'Originalist' Stands Firm

Justice Thomas Holds Firm Views on Youths' Rights

—Chip Somodevilla/Getty-File

If the legal views of Justice Clarence Thomas had always prevailed in education cases that have come before the U.S. Supreme Court during his 20 years on that bench, schooling in this country would be different in a number of ways.

Administrators would have a much freer hand to discipline student speech. Students suspected of hiding drugs or other contraband would be subject to warrantless strip-searches by school officials.

At graduation ceremonies, students and perhaps clergy members could once again lead prayers.

States, meanwhile, could restrict the sale of video games to minors, and youths would have no First Amendment right to receive information without their parents consent.

And in higher education, race could play no part in admissions.

Justice Thomas, 63, marks two decades on the court Oct. 23, and a hallmark of his tenure is his willingness to carve out a solitary stance on certain issues. Particularly in cases involving schools and the rights of children, he has issued sharp dissents from some of the rulings of his liberal colleagues, and concurrences that go further to the right than even some of his fellow conservatives.

Jonathan F. Cohn, a Washington lawyer who served as a law clerk to Justice Thomas during the 2000-01 term, said he does not think the justice is concerned much with whether any of his colleagues sign on to these lone opinions.

A Philosophy Emerges

Justice Clarence Thomas has carved out a distinctive point of view on the issue of students’ and children’s rights in a number of important school law cases in his 20 years on the Supreme Court. He has voiced that viewpoint most forcefully through concurring or dissenting opinions in which he spoke only for himself, as in the following cases:

Morse v. Frederick
In a concurrence in a 2007 decision restricting the school speech rights of students, Justice Thomas said he would go further than the court’s majority and overrule the landmark decision in Tinker v. Des Moines Independent Community School District.

[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. ... In the name of the First Amendment, Tinker has undermined the traditional authority of teachers to maintain order in public schools.

Safford Unified School District v. Redding
Justice Thomas dissented from a 2009 decision that a strip search by school officials of a 13-year-old student violated the Fourth Amendment’s guarantee against unreasonable searches and seizures.

[T]he most constitutionally sound approach to the question of applying the Fourth Amendment in local public schools would in fact be the complete restoration of the common-law doctrine of in loco parentis. … So empowered [in the early years of U.S. public schooling], schoolteachers and administrators had almost complete discretion to establish and enforce the rules they believed were necessary to maintain control over their classrooms.

Brown v. Entertainment Merchants Association
In a dissent from a decision this year striking down California’s attempt to regulate the sale of violent video games to minors, Justice Thomas wrote at length about the originalist understanding of the rights of children, both in school and in society at large.

The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood ‘the freedom of speech’ to include a right to speak to minors [or a corresponding right of minors to access speech] without going through the minors’ parents.

Zelman v. Simmons-Harris
In a concurrence in a 2002 decision upholding a state-funded voucher program allowing poor children in Cleveland to attend private schools, including religious schools, Justice Thomas said that urban school systems were failing minority students.

Frederick Douglass once said that ‘education means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.’ Today many of our inner-city public schools deny emancipation to urban minority students. … [P]ublicly funded private school choice … programs address the root of the problem with failing urban public schools that disproportionately affect minority students.

“He’s not writing these to get the admiration or respect of his colleagues,” said Mr. Cohn, who was a deputy assistant attorney general in President George W. Bush’s administration. “He’s not writing them for any audience other than those who want to see the right answer for the right reasons.”

Justice Thomas is not always isolated in his views. In the eyes of some legal observers, he has gained an influential place on the largely conservative court of Chief Justice John G. Roberts Jr. An August article in The New Yorker said that “in several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader” of the court, specifically in the areas of gun rights and in the free speech of corporations.

Opposition to Tinker

Justice Thomas has been assigned his share of majority opinions in education matters. He wrote for the court in a 2000 case upholding the use of federal Title I aid to provide library books and computer software to religious schools. In 2001, he wrote the majority opinion holding that a school district violated the free-speech rights of a student religious club when it was excluded from meeting after hours on school grounds.

When the court in 2002 upheld an expansion of random drug testing beyond student-athletes to include any students involved in competitive extracurricular activities, from debate to Future Farmers of America, Justice Thomas again wrote for the majority.

But when crafting a controlling opinion for the court, the author must sometimes temper his or her own views to hold onto a majority. Some of Justice Thomas’ other education opinions—concurrences and dissents that typically are his alone—offer a much more individualized take on his legal views on education and children.

In the 2007 case Morse v. FrederickRequires Adobe Acrobat Reader, when the court upheld the discipline of a student who had unfurled a banner reading “Bong Hits 4 Jesus” at a school-related event, Justice Thomas joined the majority’s opinion.

But he wrote a separate concurrence, for himself only, explaining that he would go further and overrule the landmark 1969 decision in Tinker v. Des Moines Independent Community School District. That case, involving students who wore black armbands to school to protest the Vietnam War, has been a fundamental guarantee of student speech rights in school.

“In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools,” Justice Thomas wrote in Morse.

‘Originalist’ Perspective

The justice’s wording in that case underscores his perspective as an “originalist”—one who looks to the legal and social understandings and practices that informed the Founding Fathers at the time the U.S. Constitution was adopted. Justice Antonin Scalia, who often, but not always, aligns with Justice Thomas, is the leading proponent of originalism on the court.

The Morse case sent Justice Thomas on a search for information about public and private schooling practices from Colonial days into the 19th century.

“In the earliest public schools, teachers taught, and students listened,” the justice wrote. “Teachers commanded, and students obeyed.” The Tinker decision, he said, “effected a sea change in students’ speech rights, extending them well beyond traditional bounds.”

When the Morse decision was analyzed several months later at a meeting of the Council of School Attorneys, a group for lawyers representing school boards and districts, its members cheered Justice Thomas’ concurrence.

Thomas E. Wheeler II, an Indianapolis lawyer who represents school districts and has served as the head of COSA, said many of Justice Thomas’ views on school matters are welcome among administrators, board members, and their lawyers.

“If you look back over his 20 years, he’s been intellectually consistent,” Mr. Wheeler said. “I would read him as saying not only that students shed their rights at the schoolhouse door, but that they don’t have any rights.”

In 2009, in a dissent from the court’s decision that a strip-search of a 13-year-old middle school girl by school administrators looking for drug contraband violated the Fourth Amendment, Justice Thomas called for courts to return to the doctrine of in loco parentis, in which schools stood in for parents in the oversight of the children in their care.

“In the end, the task of implementing and amending public school policies is beyond this court’s function,” Justice Thomas said in Safford Unified School District v. Redding.

To Mr. Cohn, such statements underscore that Justice Thomas is not laying out a personal vision for American public education.

“He’s not expressing a worldview, he’s expressing a view of what the Constitution requires,” the former law clerk said. “After that, it’s up to the democratic process.”

But James E. Ryan, a law professor at the University of Virginia, in Charlottesville, who specializes in education law, said Justice Thomas is “engaged in an extreme form of originalist reasoning. He doesn’t fairly account for the possibility of circumstances changing. It leads him to a pretty extreme view that kids really don’t have any rights in school.”

Still, some of Justice Thomas’ lone concurrences and dissents are “pretty forceful,” said Mr. Ryan, who was a law clerk to the late Chief Justice William H. Rehnquist.

“He’s not afraid to stake out a position that is fairly extreme, but is nonetheless principled,” said the professor, who cited some of Justice Thomas’ opinions on race in American education.

The justice, who became the court’s second African-American when he succeeded Justice Thurgood Marshall in 1991, has consistently argued that society has underestimated the potential of all-black urban schools.

“It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior,” Justice Thomas said in a concurrence in Missouri v. Jenkins, a 1995 case in which the court curtailed a court-ordered desegregation plan in Kansas City, Mo. “Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment.”

Hitting the Books

Last spring, a case about violent video games gave Justice Thomas an opportunity to return to some of his favorite themes about children’s rights, in loco parentis, and original understandings about family and child rearing.

Points of Reference

In his dissent in Brown v. Entertainment Merchants Association, the 2011 video game case, Justice Thomas cited numerous works on children and families in America. They included Children and Youth in a New Nation, a 2009 book of essays, and The Youth’s Companion, a Boston-based magazine published in the late-19th and early-20th centuries.

In Brown v. Entertainment Merchants AssociationRequires Adobe Acrobat Reader, the court voted 7-2 to strike down a California law that restricted the sale of violent video games to minors. Inherent in the case was not only the right of game makers to sell their wares but the right of children to access speech of interest to them.

Justice Thomas issued a 20-page lone dissent that went into more detail than he had yet about Colonial American customs in raising and educating children. (Justice Stephen G. Breyer wrote a separate dissent based on a different rationale.)

The freedom of speech, Justice Thomas said, was not originally understood to include a right to speak to minors without going through their parents.

“The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children,” he said.

Around the time of the American Revolution, attitudes toward children changed, with society viewing them as “less innately sinful and more as blank slates requiring careful and deliberate development,” Justice Thomas said.

Families bore the major responsibility for the moral training of children and, by implication, for the “moral health of the nation,” the justice wrote. He cited passages from Youth’s Companion, a Boston-based magazine for children that published from 1827 to 1929, as well as “advice to youth” books published in the late 1700s and early 1800s. “Next to your duty to God is your duty to your parents,” advised one.

‘Out of Context’

Justice Thomas went on at some length, citing dozens of scholarly works, and touching on Thomas Jefferson’s approach to raising his children and the degree to which parents supervised their children’s reading and had concerns about the effects of fairy tales.

In marshaling his evidence, the justice cited numerous books about the history of children and families in America, among them Huck’s Raft: A History of American Childhood, a 2004 book by Steven Mintz. But several of the authors cited—including Mr. Mintz, a professor and historian at Columbia University, in New York, said they were troubled by what they viewed as his selective use of the research.

“Out-of-context citations are an advocate’s weapon of choice,” said Mr. Mintz. While it is true enough that parents—fathers, really—had absolute authority over children at the time of the founding, Justice Thomas fails to credit societal changes in attitudes since then, the professor said.

James Marten, the editor of Children and Youth in a New Nation, a 2009 book of essays also cited by Justice Thomas, said that the justice is assuming New England-style childhoods were the norm for all children, and that simply wasn’t the case.

“In addition, he assumes that because child-rearing guides suggested parents do something a certain way, that parents actually did it that way,” said Mr. Marten, the chairman of the history department at Marquette University, in Milwaukee. “That isn’t a safe assumption in any era.”

Michael Grossberg, a professor of history and law at Indiana University-Bloomington and another scholar whose work on the history of children in America was cited by Justice Thomas, said the justice “is trying to argue that parental rights were fixed at a certain point, when, in fact, they have changed in fundamental ways.

“What’s peculiar about Thomas’ view is that he creates this rigid definition of what the Founders must have thought, and he just extends it through time,” Mr. Grossberg said.

Most of Justice Thomas’ lone opinions on education have not elicited responses from his colleagues. But in the video-games case, Justice Scalia felt compelled to chide his colleague.

In a footnote to his majority opinion, Justice Scalia said that under Justice Thomas’ theory, “it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent,” even if the rally was in favor of greater rights for minors. The same issue might arise with providing religious information to minors, Justice Scalia said.

“Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto,” and thus would be unconstitutional, Justice Scalia said in the footnote.

Next Generation

Justice Thomas and his first wife have a son, Jamal Adeen, born in 1973. The justice and his second wife, Virginia, took in his great-nephew in 1997, when the boy was 6 years old, and raised him. Though he has refrained from asking questions during oral arguments for more than five years, he occasionally meets privately with groups of students.

Related Blog

In 2009, the justice addressed several hundred high school students visiting Washington as part of a program sponsored by the Bill of Rights Institute. He didn’t mention his views about student speech rights, but he did lament a focus on “a proliferation of rights” and the “virtual nobility that seems to be accorded those with grievances.”

Asked by a student how serving on the Supreme Court had changed him, the justice said, “Not a whole lot.”

“It’s changed my hair,” he said, referring to a close-cropped cut that has evolved from black to gray and now white. “And I have a bit more girth. But on a personal level, it has not changed me that much. I am who I am. I’ve been the same person a long time, and I kind of like being me.”

Vol. 31, Issue 08, Pages 1,20-21

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