Wednesday, February 3, 2010

I was struck by Justice Thomas’ comments in Morse v. Frederick; he writes that if given the opportunity, he would dispense of Tinker (which extended students’ speech rights far beyond the tradition bounds – schools could not inhibit student speech unless that speech “substantially interfere[d] with the requirements of appropriate discipline in the operation of the school.”) Such a view, along with his reference to “first principles”, reflects an Originalist interpretation of the First Amendment. Thomas does indeed acknowledge that the educational system faces administrative and pedagogical challenges different than those in the nineteenth century, but he still argues that there is no constitutional imperative to allow all student speech. Justice Thomas holds that the local school districts should deal with such issues and that the court should have a limited role (especially with the existence of in loco parentis). In the case of student speech and the use of the internet, however, one must question if the relevant school district should be the only entity responsible for disciplining students who violate school rules and who “materially and substantially interfere with the requirements of appropriate discipline in the operation” of another school. (Tinker) For example, what if students in Tinker sent an email to students in the surrounding school districts about wearing a black armband to school to protest Vietnam? Which students should be punished? Student speech found online has the ability to reach well beyond the specific school district that that speech came from; thus, what one student says in New Jersey could affect students in New York.

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