Friday, June 29, 2007

Thomas takes 'in loco parentis' to whole new level

In the wake of the Frederick ruling, a number of legal experts are looking at the silver lining in the ruling: That it seems to be narrow and only apply to drug-related speech.

However, some worry that administrators will try to stretch the scope of the ruling, a la Hazelwood.

Jordan Lorence, senior vice president of the Alliance Defense Fund, a conservative free-speech advocacy group, agreed that the concurring opinion may limit the ruling but fears administrators will ignore that limit.

"The Alito concurrence, joined by Justice Kennedy, recognizes the potential dangers of the majority opinion and seeks to limit it to situations where students advocate illegal drug-use," Lorence said in a statement from his office. "However, school officials will undoubtedly try to expand the reach of the majority's opinion in order to censor student speech that dissents from the official school policy." ...

Francisco Negrón, general counsel for the National School Boards Association, said in a statement that the decision reaffirms "the school's role in regulating messages that are detrimental to student welfare."

"The Court clearly spoke to the health and well-being of our students, not their constitutional rights of free speech," Negrón said in a statement from the association.

Even scarier, however, was the concurrence by Justice Clarence Thomas, who says he would do away with the Tinker standard if given the chance.

"I join the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard," Thomas wrote in his concurrence. "I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so."

Thomas went on to say that he believes the framers of the constitution did not intend for the First Amendment to apply in schools, and that parents designate their authority to school officials.

Justice Alito rebuked that assertion -- "it is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public authorities" -- but that the line of reasoning even exists in any part of the Supreme Court is scary for all those interested in free student speech.

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