Justice Thomas writes:
"As originally understood, , the
> Constitution does not
> afford students a right to free speech in public
> schools."
There weren't any public schools to speak of until the 1840s or so.
http://en.wikipedia.org/wiki/History_of_education_in_the_United_States
Of course, as originally understood, even by the framers of the 14th Amendment, the Constitution doesn't (plainly) prohibit school segregation either. See Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 16-17 (1955) (quoting framers stating that the "civil rights" protected by the Civil Rights Acts of 1866, which the was the legislative embodiment of the 14th Amendment, "by no means" mean that "in all things civil, social, and political, all citizens shall without distinction of race or color be equal." (Rep. Wilson). Civil rights meant the right to contract, hold property, and have recourse to law.
Arguments from inactivity or silence are tricky, but it is telling that In 1866-67, Congress did not desegregate the District of Columbia public schools, which were clearly under its jurisdiction; these had to be desegregated by court order in 1954 in the companion case to the Brown v. Bd of Ed. decision, nor did Congress have the Reconstruction governments desegregate the Southern public schools, although Congress did pursue color-conscious affirmative policies through the Freedman's Bureau. This strongly suggests, when coupled with the express denial in the legislative history of a broad interpretation of "civil rights" that Brown was not an originalist decision.
--- "Mr. WD" <mister.wd at gmail.com> wrote:
> On 6/26/07, J. Tyler <unspeakable.one at gmail.com>
> wrote:
>
> > What the opinion represents to me is the beginning
> of erosion of the First
> > Amendment, similar to that of the Fourth, for no
> other reason than that it
> > is incompatible with the war on drugs. (The
> majority opinion spent a good
> > deal of time telling us how bad Congress thinks
> drugs are, which is somehow
> > supposed to serve to trump constitutional
> protections that make that
> > consideration irrelevant. 80-year-old Stevens, in
> dissent, suggested that
> > public opinion on drug use just might change in
> time and that the majority
> > opinion represented an attempt to silence the
> opposing view on the topic.)
>
>
> Yeah, Breyer's opinion pretty much hit the nail on
> the head as to
> where this is heading:
>
> "One concern is that, while the holding is
> theoretically limited to
> speech promoting the use of illegal drugs, it could
> in fact authorize
> further viewpoint-based restrictions. Illegal drugs,
> after all, are
> not the only illegal substances. What about
> encouraging the underage
> consumption of alcohol? Moreover, it is unclear how
> far the Court's
> rule regarding drug advocacy extends. What about a
> conversation during
> the lunch period where one student suggests that
> glaucoma sufferers
> should smoke marijuana to relieve the pain? What
> about deprecating
> commentary about an antidrug film shown in school?
> And what about drug
> messages mixed with other, more expressly political,
> content? If, for
> example, Frederick's banner had read "LEGALIZE BONG
> HiTS," he might be
> thought to receive protection from the majority's
> rule, which goes to
> speech "encouraging illegal drug use." Ante, at 2
> (emphasis added).
> But speech advocating change in drug laws might also
> be perceived of
> as promoting the disregard of existing drug laws."
>
> That said, things could have been much much worse.
> Look what Thomas
> wrote in his concurrence, which basically says that
> since SCOTUS's
> rulings on the role of the First Amendment in public
> schools are
> incoherent, fuck it -- let's dump free speech rights
> in public schools
> altogether:
>
> "Today, the Court creates another exception. In
> doing so, we continue
> to distance ourselves from Tinker, but we neither
> overrule it nor
> offer an explanation of when it operates and when it
> does not. Ante,
> at 10–14. I am afraid that our jurisprudence now
> says that students
> have a right to speak in schools except when they
> don't—a standard
> continuously developed through litigation against
> local schools and
> their administrators. In my view, petitioners could
> prevail for a much
> simpler reason: As originally understood, the
> Constitution does not
> afford students a right to free speech in public
> schools."
>
> ...I mean, that'll really send a chill up your
> spine,
> -WD
>
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