Adult Supervision: Advice from the Founders By Ken Masugi
Impassioned protests following the mass shooting at a Florida high school culminated over the weekend with marches on Washington, D.C., and other cities. To properly evaluate these spectacles, let’s suspend for the moment Aristotle’s recommendation that the youth should not study politics because they are ruled by their passions rather than reason.
Their anguished voices merit more than condescension. But they have not generally received a serious response, even from those who support their efforts. The best possible start is to consider the view not just of their own “out of it” fathers, but the view of those even more “out of it” fathers, the bewigged gentlemen we call America’s Founders.
In the current controversy we can get to that view by consulting the best adult guide we have on hand and he is that most distinguished American, Justice Clarence Thomas. He teaches us from the grounds of constitutionalism—how citizens ought to debate politics, elect representatives, and advance policies. These practices reflect the purpose of a First Amendment that defended the freedom of speech, press, and assembly. Going beyond the other justices, he argues that neither the First Amendment nor the 14th amendment was intended for kids.
Having gained notoriety as the “BONG HiTS 4 JESUS” case, Morse v. Frederick (2007) pared back the court’s calamitous decision in Tinker v. Des Moines Independent Community School District (1969), which asserted that school kids are presumed to have the First Amendment rights of adults. The justices in Tinker embodied the spirit of the 1960s.
In Morse v. Frederick, Chief Justice John Roberts reaffirmed the right of school officials to exercise discipline. The justices ruled that a high school student did not have the right to sue his school’s principal, who suspended the teen for displaying a banner at a school event that read, “BONG HiTS 4 JESUS.” (The student wanted his banner back, too.) Concurring, Justice Samuel Alito went further, presciently noting, “School attendance can expose students to threats to their physical safety that they would not otherwise face . . . . Experience shows that schools can be places of special danger.” Not just rights to speech but also rights to privacy and other civil liberties may be restricted, he implied.
But Thomas, with his dedication to an original understanding of the Constitution, came to grips with the underlying problem. With schools taking the place of parents (in loco parentis), students did not have free speech rights there any more than they had at home. The common purpose of both school and parents was to control “’the innate selfishness of the individual.’” He summarizes the pedagogical views of the founding generation and the similar views of the 19th century:
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 . . . . Through the legal doctrine of in loco parentis, courts upheld the right of schools to discipline students, to enforce rules, and to maintain order.
The laws limited excessive physical punishment, but not much more. The purpose is everything, as in this 1886 Maine state court opinion:
To accomplish [the] desirable ends [of teaching self-restraint, obedience, and other civic virtues], the master of a school is necessarily invested with much discretionary power . . . . He must govern these pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn. He must make rules, give commands, and punish disobedience. What rules, what commands, and what punishments shall be imposed, are necessarily largely within the discretion of the master, where none are defined by the school board.
Savor this: “the discretion of the master.” Lest one think Thomas indulges Dickensian and sadistic teachers, of course, he allows that “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.”
Thomas’s point is not that K-12 students should not engage in debate or think about politics, but that the purpose of having free speech was to improve political deliberation, not to indulge one’s passions. Thomas rejects the view that free speech is free expression, which may even extend to the now constitutionally protected “artform” of erotic dancing.
Commentators praised the students for being so articulate on camera. I suspect that is because in place of writing assignments in school they have been making films—making impressions rather than arguments, the very definition of sophistry.
In light of his call for repealing the Second Amendment, retired Justice John Paul Stevens’ defense of student rights in his Morse dissent is telling:
Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message.
Begging the question of who has First Amendment rights, Stevens was lowering the right of free speech to a right of free expression (“silly, nonsensical banner”). Such a defense undermines the student’s case altogether by denying he was engaging in speech. The student sustained no First Amendment injury.
Because we have ceased to want adult politics, we cannot discriminate between the Lincoln-Douglas debates and impassioned mobs. Democracies have ever had indulgent parents (see Aristophanes) and party leaders and presidents. To the jeers of his erstwhile allies as well as his detractors, President Trump threatened a veto of another budget bill. (After all, the Trump rally song was “You Can’t Always Get What You Want.”)
It’s a depressing pattern: recall it took into his second term for George W. Bush to veto a bill. But the veto, issued judiciously, is real discipline. That firmness, the notion of limits, is what our public discourse, not just in the high schoolers, is lacking.
The contrast is further evident in a recent New York Times op-ed, which maintained that “Youthful independent voters emerged as a decisive third force . . . . Politicians scrambled after them, beginning the Progressive Era, passing laws protecting workers, cleaning up cities and championing the young.”
And, it must be added, for centralizing the government and claiming to be above all parties—that is, the party to end all parties. That elitist mentality means an end to political conflict and consequently an end to political freedom. The youth movements are not limited to those young in years; it may be more a form of cosmetic surgery.
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