Read the transcript of the oral argument (PDF)
here.
Before discussing the argument, let me offer a side note. The leading precedent on the subject is
Tinker v. Des Moines School District (registration may be required for this web site). In
Tinker, students wore black armbands to school to protest the nation's Vietnam polices. The students were suspended for refusing to remove their armbands. The school, as expected, asserted that it was acting within its disciplinary power.
The action by the school district was premeditated. The school district learned that students were planning to wear armbands, and thereafter adopted a policy against it. The discipline was not a spur-of-the-moment thing.
At issue was whether the school infringed the students' constitutional rights. The Supreme Court determined that the students' expression, which did not involve substantial interference with school discipline or the rights of others, is constitutionally protected. Justice Fortas, writing for the Court, said "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
The
Tinker case was decided in 1969, while I was a student in the Des Moines School District. Later, I would have the honor to work for
both of the men who argued the
Tinker case to the Supreme Court.
Turning to the
Morse case, there are a few interesting aspects to the oral argument. Ken Starr, that lovable lug, came out of the chute characterizing the expression in question with these words:
Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation.
And Starr almost immediately got questions from the bench. Does he propose a rule related only to drug-related speech? No, Starr said. He thinks the
Tinker rule ought to apply, "that there is, in fact, a right to political speech subject to disruption, requirements that the speech not be disruptive." The justices asked for specificity:
JUSTICE KENNEDY: Disruptive of what? Disruptive of the classroom order? There was no classroom here.
MR. STARR: Including but not limited to. This was a school authorized event, this was education outside of the classroom. It was essentially a school simply out of doors. It was essentially --
JUSTICE SOUTER: Well, I can understand if they unfurled the banner in a classroom that it would be disruptive, but what did it disrupt on the sidewalk?
MR. STARR: The educational mission of the school.
This sounds similar to the justification offered by the school district in
Tinker. Even if the students were non-disruptive, the school district argued that it was within its power to take reasonable steps to prevent disturbance of school discipline. In other words, even if there wasn't actually a disruption problem, the school could punish the students to prevent a
potential disturbance problem. This argument basically prevailed in the lower courts, but lost in the Supreme Court.
So in
Morse, some members of the Court seemed to find it odd that Starr was relying upon arguments that failed to carry the day in
Tinker. But Starr tried to draw a distinction: the students' banner, he said, was not "political," and the Tinker rule is directed to "political" speech. But here, Starr said, the speech was about drugs and illegal substances. Some of the Justices could hardly believe their ears. If a student said that drug laws ought to be changed, wouldn't that be political speech?
Justice Scalia to the rescue. This case was not about advocating a change in drug laws, he said. Rather, this was an urging to break the drug laws. Starr agreed, saying that the school district interpreted the message as encouraging the drug culture. Drugs are bad, m'kay, so therefore the school can discipline students for suggesting that drugs ought to be ingested.
The justices threw some questions at Starr regarding the scope of the school's authority, the nature of the message, the nature of the school-sponsored event, restrictions on time, place and manner. None of this was especially earth-shaking, but it makes for interesting reading.
Edwin Kneedler argued on behalf of the United States, which supported the school. Kneedler echoed the view that drugs are bad, m'kay, so therefore the school can discipline students for suggesting any message inconsistent with the school's educational mission. Justice Alito (among others) had trouble with this rationale:
JUSTICE ALITO: ... I find that a very, a very disturbing argument, because schools have and they can defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of, of -- of getting rid of speech that's inconsistent with educational missions.
This is a legitimate concern, one that is troublesome to all the justices regardless of political bent. If the school district in
Tinker had simply defined its educational mission differently, should the result in that case have been different?
Further, some of the Justices weren't all that confident that the banner actually did advocate illegal activity. It could have been nonsense. It could have been a joke. (Justice Breyer got laughs in the courtroom when he turned the message into a Beavis-and-Butthead-like remark: "Bong Hits 4 Jesus, heh heh heh.") The best that Kneedler and Starr could do was to argue that the school officials
reasonably believed that drug use was being advocated, and the Court ought to defer to that judgment.
Douglas Mertz argued for the students. This is where the fireworks got started. Chief Justice Roberts, who had asked some rather bland questions of the school advocates, came out of the chute with a dipsy doodle for Mertz:
MR. MERTZ: Mr. Chief Justice and may it please the Court: This is a case about free speech. It is not a case about drugs.
CHIEF JUSTICE ROBERTS: It's a case about money.
This is a surprisingly puerile remark, unworthy of a Supreme Court justice. It is also an insult, namely a not-so-subtle suggestion that the advocate is not interested so much in principle as in cash. No one had the bad manners to suggest that Starr was arguing the way he did because his clients
didn't want to pay.
The case, having been brought under the appropriate civil rights statute passed by Congress, authorizes (and in effect, almost requires) naming the principal as a defendant and asking for a money award. Surely Chief Justice Roberts knows this. Mertz tried to turn the Court back to the legal principles at issue, But Roberts didn't want to go:
CHIEF JUSTICE ROBERTS: But there's a broader issue of whether principals and teachers around the country have to fear that they're going to have to pay out of their personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school's educational mission.
Mertz answered quite correctly:
MR. MERTZ: That is indeed a legitimate fear, Your Honor, and we believe the existing law takes care of it by requiring before qualified immunity can be breached that there be a demonstration that under the existing law at the time available to her --
In other words, the Court is not here to debate the merits of the civil rights statutes. There is a wealth of precedent about various types of immunity that can be available to public officials accused of civil rights violations. But none of that is really in issue at this stage of the litigation. It almost sounded like Roberts was suggesting that, if the Court didn't like the remedy that Congress had adopted, the Court ought to consider curtailing the right that gives rise to that remedy. And
that would be cause for worry.
Justice Souter tried to direct the discussion back to the real issues. Mertz acknowledged that certain content-neutral restrictions might be permitted, such as "No banners, no matter what they say." The problem is, of course, that the students were disciplined because of the content of the banner. Chief Justice Roberts darted into the fray again:
CHIEF JUSTICE ROBERTS: But can't the school decide that it's part of its mission to try to prevent its student from engaging in drug use and so that it's going to have a viewpoint on drug use and that viewpoint is going to be that it's opposed to it and so that it takes a particular view with respect to signs that in their view seem to encourage drug use?
Mertz, in response to a question from Justice Scalia, took the
Tinker line:
MR. MERTZ: Well, what matters is whether there is a substantial disruption of what the school is trying to achieve legitimately, whether it's a classroom lesson or a lesson on drug use. ... I believe, Your Honor, that a nondisruptive pin, badge, whatever you want to call it, would have to be tolerated.
Justices Roberts, Scalia and Kennedy seemed to have difficulty understanding why a school ought to tolerate any opinion that was at odds with what the school felt ought to be taught. Indeed, there were suggestions that any viewpoint at odds with the official viewpoint was either presumptively or automatically "disruptive":
CHIEF JUSTICE ROBERTS: And disruption does not include undermining the message they want to send? It has to be some type of physical disruption[?] But undermining the message they want to send, they can't make the judgment that that's not allowed?
Now, one has to distinguish between court rhetoric and what a justice actually thinks ought to be a legal principle. It is hard to believe that Chief Justice Roberts actually believes that a school can deem disruptive any message that is in conflict with the official school message. If this were to be the rule, then
Tinker would be effectively overruled, and long-standing First Amendment jurisprudence would be thrown into disarray. So this may have been rhetoric. And yet, the same theme kept coming up:
JUSTICE SCALIA: A school isn't an open forum. A school isn't there for everybody to teach the students whatever he wants. It's there for the teachers to instruct. And you're turning it into an open forum. If the school says, addresses one issue, everybody else has to be able to address that issue. ... That's not my vision of what a school is.
I always thought folks like George Carlin exaggerated when they said that schools are interested in forcing students all to think the same way, and they punish all students who dissent. That certainly was not the way it was where I went to school, in the Des Moines school district. But what some of the justices seem to be suggesting is that schools can and should do that very thing. Disagreement will not be tolerated. Students who express unpopular or unconventional messages will be punished, expressly because of the content of their message. The
Tinker dictum, that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," will be a thing of the past.
One wonders whether those who suggest intolerance were themselves schooled in intolerant schools, particularly Catholic schools. Perhaps they felt that being forced to toe the party line didn't hurt them any. But I digress.
And the Court digressed a bit, too. Abruptly there was a discussion about the record in the case and what were some of the facts. Chief Justice Roberts put an end to that discussion:
CHIEF JUSTICE ROBERTS: Can we get back to what the case is about. You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it's disruptive. But then under [
Bethel School District No. 403 v. Fraser] I can do something if it interferes with the basic mission, and under [
Hazelwood School District v. Kuhlmeier] I've got this other thing. So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it.
Once again, Chief Justice Roberts finds it distasteful that civil rights statutes can compel a wrongdoer to pay a sum to an injured party. He also finds it bothersome that the poor principal might not be able to understand the basic rules of law. And yet every principal ought to be able to understand that a student cannot be disciplined
merely because the principal doesn't like the message. And besides, as Mertz pointed out, the principal wasn't exactly unaware of the rules:
MR. MERTZ: ... And she did testify that she had taken a master's degree course in school law in which she studied Kuhlmeier and [Fraser] and Tinker. ... We believe at the very least she should have known that one cannot punish a nondisruptive holding of a sign because it said something you disagreed with.
Justice Kennedy disagreed, apparently tipping his hand:
JUSTICE KENNEDY: Of course I disagree with the characterization on disruptive. It was completely disruptive of the message, of the theme that the school wanted to promote. Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school's image that they wanted to portray in sponsoring the Olympics.
This view, if it carries into the final opinion, would overrule
Tinker. A message with which a school official disagrees is disruptive and can subject the student to discipline. One things's for sure: that's an easy rule to follow. Make no mistake, the ruling, even if limited to students, would not end there. Once the Court says that an unpopular view can be punished because it is unpopular, and that the First Amendment is not offended thereby, then the First Amendment rights that everyone thought they had get thrown into question.
He does not appear to have become a grumpy old conservative in the process. These days, he appears to be running for Chief Curmudgeon of the United States. 