I wrote a post about two weeks ago, about the Morse v. Frederick decision, in which the Supreme Court found that a high school principal could stop a student from posting a banner during a school-sanctioned activity, and suspend him for it, that obliquely promoted drug use. The reasoning laid out in the court opinion, written by Chief Justice Roberts, is that the school’s obligation to teach its students about the dangers of illegal drugs justified the limitation of the student’s right to speak.

I had not had a chance to read the concurring opinion written by Justice Clarence Thomas. But apparently Stanley Fish did, and he posted a reaction on his New York Times blog. And I find myself deeply troubled by both Thomas’ argument (no great surprise) and Fish’s comments (more surprising).

Thomas agreed with the court’s decision, but wrote a concurring opinion to highlight a different reasoning for it: that public school students have no free speech rights:

In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools…

Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control…

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order…

In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules…

To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools… If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

Thomas’ hideous argument aims to roll back more than a century of progress in pedagogy. It perfumes its reprehensible position with a whiff of constitutional originalism, when it suits his argument. And in the end, it falls back on a gross assumption that choosing your child’s school and its policies is as simple as choosing this or that brand of soap. Just shop around for the best public school, or move to a more expensive neighborhood, or pony up the cash for private school, if you don’t like that Clarence Thomas refuses to set any guidelines on school principals and how they choose to stifle your child’s efforts to speak, think, or criticize.
But don’t look to Stanley Fish to note any of this. In his post (requires subscription to TimesSelect), so absurd it may even be a pristine parody of itself, he lauds Thomas’ principled stance, even wants to extend it:

If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

One reason that students (and many others) have come to believe that they have these rights is a confusion between education and democracy. It is in democratic contexts that people have claims to the rights enumerated in the constitution and other documents at the heart of our political system – the right to free speech, the right to free assembly, the right to determine, by vote, the shape of their futures.

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy – the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

What this means is that teachers don’t have First Amendment rights either, at least while they are performing as teachers. Away from school, they have the same rights as anyone else. In school, they are just like their students, bound to the protocols of the enterprise they have joined. That enterprise is not named democracy and what goes on within it – unless it is abuse or harassment or assault – should not rise to the level of constitutional notice or any other notice except the notice of the professional authorities whose job it is to keep the educational machine running smoothly.

I find myself speechless that a university professor, especially one as accomplished as Fish, could honestly espouse such a position. It’s the worst kind of academic exclusionism, an ivory dungeon where students are not only treated as entirely separate from the real world, but are locked there for their own good and disciplined into submission. I can only say, there are plenty of ways to combine good pedagogy and a progressive position on the civil rights of students and teachers, plenty of ways to teach democratic principles and live them at the same time, plenty of ways to host education and democracy in the same classroom.