JUSTICE THOMAS, concurring.
The Court today decides that a public school may prohibit speech
advocating illegal drug use. I agree and therefore join its opinion in
full. I write separately to state my view that the standard set forth
in Tinker v. Des Moines Independent Community School Dist., 393 U.S.
503, 731 (1969), is without basis in the Constitution.
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. Several points are clear: (1) under in loco
parentis, speech rules and other school rules were treated identically;
(2) the in loco parentis doctrine imposed almost no limits on the types
of rules that a school could set while students were in school; and (3)
schools and teachers had tremendous discretion in imposing punishments
for violations of those rules.
And because Tinker utterly ignored the history of public education,
courts (including this one) routinely find it necessary to create ad
hoc exceptions to its central premise. This doctrine of exceptions
creates confusion without fixing the underlying problem by returning to
first principles. Just as I cannot accept Tinker's standard, I cannot
subscribe to Kuhlmeier's alternative. Local school boards, not the
courts, should determine what pedagogical interests are "legitimate"
and what rules "reasonably relate" to those interests. 484 U.S., at 273.
JUSTICE ALITO, with whom JUSTICE KENNEDY joins, concurring.
I join the opinion of the Court on the understanding that (a) it goes
no further than to hold that a public school may restrict speech that a
reasonable observer would interpret as advocating illegal drug use and
(b) it provides no support for any restriction of speech that can
plausibly be interpreted as commenting on any political or social
issue, including speech on issues such as "the wisdom of the war on
drugs or of legalizing marijuana for medicinal use."
The opinion of the Court does not endorse the broad argument advanced
by petitioners and the United States that the First Amendment permits
public school officials to censor any student speech that interferes
with a school's "educational mission." This argument can easily
be manipulated in dangerous ways, and I would reject it before such
abuse occurs. The "educational mission" of the public schools is
defined by the elected and appointed public officials with authority
over the schools and by the school administrators and faculty. As a
result, some public schools have defined their educational missions as
including the inculcation of whatever political and social views are
held by the members of these groups.
During the Tinker era, a public school could have defined its
educational mission to include solidarity with our soldiers and their
families and thus could have attempted to outlaw the wearing of black
armbands on the ground that they undermined this mission.
Alternatively, a school could have defined its educational mission to
include the promotion of world peace and could have sought to ban the
wearing of buttons expressing support for the troops on the ground that
the buttons signified approval of war. The "educational mission"
argument would give public school authorities a license to suppress
speech on political and social issues based on disagreement with the
viewpoint expressed. The argument, therefore, strikes at the very heart
of the First Amendment.
As we have recognized in the past and as the opinion of the Court today
details, illegal drug use presents a grave and in many ways unique
threat to the physical safety of students. I therefore conclude that
the public schools may ban speech advocating illegal drug use. But I
regard such regulation as standing at the far reaches of what the First
Amendment permits. I join the opinion of the Court with the
understanding that the opinion does not endorse any further extension.