Students, the First Amendment and the Supreme Court
by Jan Ewell
Permission granted to use at will for non-commercial purposes
The Bill of Rights and Schools
The First Amendment, along with the rest of the Bill of Rights, became the law of the land in 1791, but 216 years later in 2007 Supreme Court Justice Clarence Thomas wrote in Morse v. Frederick, “As originally understood, the Constitution does not afford students a right to free speech in public school.”
Thomas was an originalist, one who interprets the Constitution and the Bill of Rights according to what the Founding Fathers—the original authors—intended. Public education was virtually non-existent at the time. Thomas says the Founding Fathers did not intend the Bill of Rights to limit the power of schools and were not specifically concerned about the rights of public school students.
Fortunately for the student press, the other eight justices instead debated which First Amendment rights students should have. They looked at past court decisions for precedents, that is, earlier rulings by the court, that set a rule or pattern for deciding similar cases.
The precedent for almost 100 years was the 1833 Supreme Court decision in Barron v. Baltimore, which said the Bill of Rights applied only to the federal government. According to Barron, “Congress shall make no law” meant the United States government—Congress–could not make laws “abridging freedom of speech, or of the press.” States and cities—and school districts–could and did make laws that established religions, and abridged free speech and freedom the press, and limited the right to assemble. “A local school teacher was not Congress within the meaning of `Congress shall make no law,’” said David L. Hudson Jr. in Let the Students Speak! Only the federal government was forbidden to make such laws.
The Supreme Court began to apply the Bill of Rights to the laws and practices of states starting in 1925 with Gitlow v. New York. By 1965, in Gideon v. Wainwright, the court indicated that all forms of government—not just the federal government–were restrained by the Constitution and its amendments, including the Bill of Rights. Public schools are a form of government.
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