Morse v. Frederick raises a lot of questions about students’ rights and the scope of regulation of this speech.
I disagree with Justice Thomas’ claim that students don’t have free speech rights, although I think that this might pertain to a deeper question of which school of thought we subscribe to when we read the Constitution. It seems to me that the crux of Thomas’ argument is that because public schools did not afford students free-speech rights in the 1800s when they were first founded, which seems particularly unsupported to me. I know that Thomas generally subscribes to the textualist school of constitutional interpretation (which would lead us to question what “speech” meant in the First Amendment to the Founders), but I don’t see where in the Constitution it states that students have no right to free speech in public schools.
I find Alito’s concurrence to be very measured and reasonable, especially the portion in which he states that student speech that simply interferes with a so-called “educational mission” cannot be censored. Perhaps it is the responsibility of local school boards and districts to judge what is appropriate, as I believe one of the justices said, but it seems to me that a nationwide policy at least giving a broad outline to which rights students have exactly would be preferable. Students should certainly have a right to free speech within certain boundaries, and I don’t necessarily think that local school boards would all enforce these rights equally or interpret what these “certain boundaries” are in the same way. It just seems that with free speech, which is a right guaranteed in the federal (so, nationwide) Constitution, then shouldn’t we have some sort of nationwide standard?
I also don’t really understand the concept of “qualified immunity” as Justice Breyer puts it forward – I know he wants to avoid judging on constitutional grounds, but I don’t quite understand this alternate legal mechanism.
Hi Andrew,
ReplyDeleteRegarding your question about qualified immunity, generally, individuals can’t sue the government (since the United States enjoys sovereign immunity). However, the Civil Rights Act provided for an exception (encoded at Title 42, Section 1983 of the U.S. Code -- hence these kinds of law suits are often referred to as "1983 suits"). Under this exception, if government employees deprive you of constitutional rights, you can sue the government itself, and you can also sue the misbehaving government employees in their individual capacities.
Qualified immunity refers to the part of the suit that's brought against government employees in their individual capacities. They enjoy immunity from civil liability unless they violated “clearly established” constitutional or statutory rights (that is, rights that a reasonable person would have known about). Thus they have immunity, but it’s qualified (doesn’t apply if conduct was obviously wrong).
Does that help?