When Judges Get Governing Wrong (Part 2 of 2)
William Howard Taft vs. the Angry Cheerleader
In this column:
How Chief Justice Taft led the Court in getting Myers right
How the Court got the Angry Cheerleader case wrong
Schools have an interest in student character
Time to Tinker with Tinker
In my last column, I explained why it’s a problem when judges lack governing experience—namely, they don’t adequately appreciate the powers and duties governing officials possess. Here I want to give an example of how this problem manifests in an actual case. But first I’ll describe how governing experience can help.
Myers v. United States
In 1926, SCOTUS ruled in Myers v. United States that the president has the sole authority to remove executive-branch officials. At issue was whether the advice-and-consent provision (requiring Senate approval of appointments) implied that Congress had to approve removals as well.
It is, I admit, a fascinating conceptual question. The constitutional language itself is indeterminate. But there is only one practical answer that respects the authority and responsibility of the president. The Court got it right. To give Congress a veto over removals would not only compromise executive power, it would create chaos in the executive branch. The president—empowered by Article II with all of the federal government’s executive authority—must be able to control the policy and personnel of the branch s/he oversees. Otherwise, cabinet secretaries and other top officials could go rogue.
Three justices dissented. But the majority was led by, and the opinion was written by, someone who understood why respect for governing authority required standing up for the president’s power: Chief Justice William Howard Taft, who had served as president before serving on the Court. It is impossible to know what another collection of justices would have decided, but it is not hard to see why Taft’s governing experience mattered. He knew what leadership of the executive branch entailed. Interestingly, one of the other justices in the majority, Harlan Stone, has a relevant quote in another case, “Courts are not the only agency of government that must be assumed to have capacity to govern.” Indeed, SCOTUS got Myers right because it understood the president’s capacity and duty to govern.
I should also point out that just a decade later, after Taft’s retirement, that the Court, in Humphrey's Executor, unwisely limited the holding of Myers. That decision in time gave significant independence to a host of “quasi-” executive and judicial bodies in the administrative state.
The Angry Cheerleader
The most common mistake of judges lacking governing experience is their “rights-first” view of policy. They are prone to think first of liberty (i.e., limits on government), instead of beginning by appreciating the perspectives, conditions, powers, and duties of the governing officials in question. Said another way, such judges defer to the possible liberty interest instead of the state action. My hypothesis is that judges, because of their training and legal experience, find it easier to understand the precedents related to liberty than the demands faced by governing officials.
This was abundantly—sadly—clear in Mahanoy Area School District (a.k.a. “the angry cheerleader case”). A student, upset that she hadn’t gotten the softball and cheerleading positions she wanted, posted vulgar messages on social media.1 She was suspended from the cheer team as a result. Ultimately, though, SCOTUS decided that she had a First Amendment right preventing the school district’s discipline.
Much of the argument (including briefs and opinions) revolved around where the student’s behavior took place and whether the conduct was sufficiently disruptive. But that reveals just how badly the judicial process distorted the governing interests involved. In short, educators were doing their jobs: shaping a student into an adult.
Schooling and Character
For millennia, people have understood education to be about moral/character formation as much as about literacy, numeracy, etc. In America, when primary and secondary schooling was still handled primarily by faith-based organizations, this was clear. But even after the 19th c. advent of public “common schools,” educators focused on virtue, often teaching from the Bible and other texts dedicated to character.
I won’t bore you with all of the citations, but here are a few. Our founders were certain America could only survive if we developed citizens of character, and that this asked much of education. The Northwest Ordinance of 1787 encouraged the development of schools in new territories because “religion, morality, and knowledge” are “necessary to good government and the happiness of mankind.” Michigan’s constitution mirrors that language: “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The constitution of Arkansas mandates the creation of public schools because “intelligence and virtue (are) the safeguards of liberty and the bulwark of a free and good government.” California’s and Indiana’s constitutions instruct their legislature to “encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” The Massachusetts constitution speaks of the value of “public instructions in piety, religion and morality.” And there are countless examples of state content standards and instructional programs dedicated to teaching students character and virtue.
Educators don’t simply teach history and vocabulary and algebra. They are tasked—to repeat myself, by their constitutions, state law, district policy, and parent and community expectations—with forming the whole child. That includes manners, self-control, forbearance, decency, humility, and, not incidentally, consequences for poor behavior. An adult can’t disrespect her boss when things go wrong. A successful adult won’t quit and insult when things get tough. An adult can only hide behind free speech so much: There are consequences in real life for saying whatever wherever whenever to whomever. By disciplining a young person for bad behavior the school system was doing right by that student and living up to its duty. This is why national associations of principals, school boards, and administrators (who seldom agree) teamed up on briefs to support the school system in this case
Schools Teach More than Liberty
Reading the Court’s majority opinion, you would think schools have no meaningful role in character formation. The decision reads as though schools’ only interest is in ensuring that students aren’t too disruptive: As long as classes can keep going and there isn’t too much turmoil, student behavior is shielded by the First Amendment.2 Remarkably, the Court argues that schools have a duty to support students’ free-speech rights since free speech is part of democratic citizenship.3 But—it should be obvious—democratic citizenship demands a mountain more than swearing when you don’t make a team. It requires the types of civic virtues the school system was trying to instill through its discipline. As one justice noted in a dissent a half century earlier, “School discipline, like parental discipline, is an integral and important part of training our children to be good citizens -- to be better citizens.”4
I can’t guarantee it, but my suspicion is that had at least one member of the Court had actual, meaningful governing experience related to school and school-district leadership, the decision—at very least the arguments—would’ve looked quite different. The majority’s opinion reveals a rights-first approach to judging and a liberal understanding of citizenship. A governing-first approach would’ve produced a republican understanding of citizenship.
I suspect that it is not a coincidence that the lone dissent came from Justice Thomas, the member with the most governing experience, particularly in education.5 The next-to-last last line of his opinion comes the closest to reflecting my view that we need judges who understand the history and practice of governing: “The larger problem facing us today is that our student-speech cases are untethered from any textual or historical foundation. “
School discipline, like parental discipline, is an integral and important part of training our children to be good citizens. —Justice Black
Time to Tinker with Tinker
A final thought. Much of the problem with this decision was caused more than 50 years earlier in Tinker, a case about students protesting Vietnam.6 Though I mostly agree with the outcome of that case (siding with the free-speech rights of armband-wearing students), two things must be said. First, that decision was handed down during the Court’s most aggressive rights-first era, during which new liberties were concocted and expanded at the expense of governing. Tinker has the famous line about students’ not shedding “their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That sensibility, unfortunately, got courts thinking about these issues as a balance between students’ right to free expression and schools’ right to stop disruption. As I’ve said above, though, schools have a more expansive interest than merely inhibiting disruption (namely, character formation). Though character formation would not have been a legitimate argument in Tinker it absolutely should have been in Mahonoy.
Second, the majority’s reliance on Tinker is telling. In a bad way. Educational practitioners and school- and system-based leaders can tell the difference between students silently protesting a war via armbands (or choosing not to salute the flag) and an obscenity-laced outburst about not making a team. The former is why the First Amendment exists. The latter calls for formative discipline by adults who care and want the student to grow.
“The first image B. L. posted showed B. L. and a friend with middle fingers raised; it bore the caption: ‘Fuck school fuck softball fuck cheer fuck everything.’”
One of the most frustrating aspects of the opinion is how it describes the set of activities that take place outside of school that could still be regulated by the school. None of them relate to the school’s interest—and duty—to shape character. “Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.”
“Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.”
“A more searching review reveals that schools historically could discipline students in circumstances like those presented here.”
Justice Stewart, in concurring in Tinker, at least noted that student and adult rights differ.