The Meaning of 'Public Meaning': An Originalist Dilemma Embodied by Mahanoy Area School District

47 Pages Posted: 19 Jan 2023

Date Written: November 18, 2022

Abstract

In 2021, the Court heard the case Mahanoy Area School District v. B. L., which forced the Court to answer the question of whether public schools could assert control over off-campus student speech. While the majority ruled in the affirmative, Justices Thomas and Alito authored separate opinions that addressed the historical traditions of parental rights, teacher authority, and American public education. Though both Justices have donned the title of “originalists,” their interpretations of the historical legal doctrine of parental delegation—in loco parentis—produced drastically different conceptualizations of school authority. The approaches of Justices Thomas and Alito in Mahanoy reveal the inability of the originalist school of thought to cohesively define “original public meaning.” This failure undermines the legitimacy of originalism as an interpretative tool: if jurists must use normative judgements to determine the level of generality with which to define “public meaning,” then can originalism really claim to provide interpretive certainty?

The two theories of public school speech regulation embraced by Justices Thomas and Alito in Mahanoy highlight a contextual difficulty in originalist interpretation of the historical record. Justice Alito envisions a limited version of the historical doctrine of in loco parentis that highlights the incompatibility between voluntary parental delegation of power and the compulsory education system. Conversely, Justice Thomas relies on a limited historical record and produces a stricter interpretation that gives public schools broad authority to punish off-campus speech.

The “types” of originalist interpretations exercised by judges vary, and the opinions of Justices Thomas and Alito in Mahanoy showcase these variations. Ultimately, these two opinions highlight a weakness in originalism: the lack of governing principle as to which historical record to adopt and which historical “public meaning” to take into account. Originalism, a school of legal interpretation that prides itself on its objectivity, leaves a critical element ambiguous: failing to define the meaning of “public meaning.”

This paper first presents an overview of in loco parentis. It begins with the articulation of the doctrine in Blackstone’s Commentaries and traces the appearance of the doctrine through early American jurisprudence. This history serves as a backdrop for a discussion of the doctrine in modern free speech cases, culminating in an analysis of how Justices Thomas and Alito employed the historical record in their “originalist” defenses of opposite conclusions. The analysis presents a modern example of how two great legal minds, each performing a thorough examination of the historical record and the original meaning of a historical doctrine, reach opposite results. The final section of this paper describes how these disparate results connect to flaws that permeate originalism and expose fractures within the originalist school of thought.

Keywords: Originalism, Mahanoy Area School District v. B.L., Public Meaning

Suggested Citation

Williamson, Frances, The Meaning of 'Public Meaning': An Originalist Dilemma Embodied by Mahanoy Area School District (November 18, 2022). Harvard Journal of Law and Public Policy, Vol. 46, No. 1, 2023, Available at SSRN: https://ssrn.com/abstract=4326037

Frances Williamson (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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