"Clarence Thomas Is Right" about "Bong Hits 4 Jesus."

This goes on the top 10 list of TimesSelect frustrations. We lawbloggers -- yeah, sometimes I'm a lawblogger, when the Spirit of the Laws moves me -- really would love to talk about this Stanley Fish piece. I'll skip all his background on the case. You can refer to my old post or -- better -- to the original source, the case of Morse v. Frederick. The key thing is that Justice Thomas looked back to the historical model of public schools:

Teachers instilled [a core of common] values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong.... Rules of etiquette were enforced, and courteous behavior was demanded. To meet their educational objectives, schools required absolute obedience....

[I]n 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.

Fish's calls Thomas on his exclusive reliance on the traditional understanding:

Although Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that “teachers taught and students listened, teachers commanded and students obeyed,” he comes across as someone who shares that understanding.

In Fish's eyes, Thomas doesn't just have a theory of original intent, he has substantive values that he believes in personally.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

Hey! Teachers! Leave them kids alone!

Fish sounds like one severe disciplinarian. I've opposed the too-liberal notion that the classroom should be all about student self-expression. (See my NYT op-ed disagreeing with "Paper Chase" author John Jay Osborn Jr.) But Fish is way ahead of me here.

Fish writes that people are confusing education and democracy. And schools are not "democratic contexts."

They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy – the mastery of materials and the acquiring of analytical skills.

Fish won't accept the Supreme Court's idea of free speech rights weighed against disruption (which meant that, for example, the students in Tinker had a right to wear black armbands to protest the Vietnam War). Like Thomas, he says students should have no rights other than "the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything."

Wait! That's a huge right! Isn't it worth much more than the piddling Tinker right?

ADDED: Bonus "Mysteries of the Althouse house" photo: