Educational Theory 59 (2):145-165 (2009)

In his concurring opinion to the 2007 U.S. Supreme Court decision, Morse v. Frederick, Justice Clarence Thomas argues that the Tinker decision, which granted students constitutional rights in public schools, should be overturned on originalist grounds. In this essay, Bryan Warnick, Bradley Rowe, and Sang Hyun Kim make the case that Thomas’s originalist analysis is inconclusive. Instead of looking at court decisions relating to public education starting in the middle of the nineteenth century to establish original meaning, as Thomas does, they argue that a better strategy involves an analysis of educational ideas circulating closer to the time of constitutional ratification. Using this strategy, the authors show that many prominent educational writers believed that it was important for students to learn to act independently and to value their constitutional rights, and believed that students learn best by imitating civic examples. These two ideas work together in early American educational thought to imply that schools should exemplify the sort of respect for self-governance and individual rights that is present in the larger constitutional order. Thus, Warnick, Rowe, and Kim argue that there are originalist reasons for supporting student rights that Thomas ignores. In the end, this analysis not only highlights the limitations of originalist interpretative strategies, it also reminds us, more broadly, of a way to reconcile liberty and order in civic education
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DOI 10.1111/j.1741-5446.2009.00311.x
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