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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Monday, June 25, 2007 ::
    More about Thomas's Morse concurrence

    The Alito concurrence, joined by Kennedy, indirectly replies to Thomas. Though without coming near Thomas's level of historical research (perhaps they will do so in the future if it become necessary; perhaps I should), they rely on a supplement to Thomas's narrative: even if public schools were originally poolings of local parental authority, they are no longer such:
    The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. 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 school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis.
    (Yes, as you can see, now that the opinions are up at Cornell's extremely useful site, whence they can be cut and pasted, unlike the Court's own pdf versions, I'm getting lazy and starting to quote a lot. I'll stop now.)

    :: David M. Wagner 1:33 PM [+] ::
    ...

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