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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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    :: Monday, June 25, 2007 ::
    Thomas's Bong Hits concurrence and the Meyer-Pierce doctrine

    Justice Thomas contributes a remarkable concurrence to Morse v. Frederick, the Bong Hits case, arguing that Tinker was wrongly decided. This concurrence will have to be taken seriously. It is based on history, specifically, the fact that public schools were halls of almost Dickensian teacher-authority and student-docility, even in times when states were enacting 1st-Am.-like protections in their state constitutions (so there goes the incorporation problem).

    Thomas also relies on the in loco parentis doctrine, in a way that is very friendly to traditional parental rights: parents had the right (some might say the duty) to discipline their children, and so schools that acted in loco parentis had the same right.

    In an important footnote, Thomas notes that Tinker's reliance on the Court's preeminent parental rights cases, Meyer v. Nebraska and Pierce v. Society of Sisters, was misplaced. Of course: these are parental rights cases, and tend to support Thomas's in loco parentis theory more than Tinker's students' rights theory. But Tinker, though written by Justice Fortas, shows the influence of Justice Douglas's career-long project to uproot Meyer and Pierce from parental rights (which he did not like: see his dissent in Yoder) and reformulate them as 1st Am cases. He tried this in Griswold, though without the Tinker trick of making Meyer and Pierce be about students' rights, when they are clearly about parents' and teachers' rights.

    As my earlier posts show, I am not viscerally sympathetic to Thomas's position, nor committed to agreeing with it. But it will have to be thought about.

    :: David M. Wagner 12:39 PM [+] ::

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