Brief Notes on Morse Oral Argument
on Mar 19, 2007 at 5:21 pm
— The only Justices who appeared to be sympathetic to the top-side theory I blogged about this morning — that a school district can suppress any student speech “inconsistent with the school’s basic educational mission” — were the Chief Justice and Justice Scalia, although Justice Scalia appeared to be partial (see page 12 of the transcript) to a somewhat narrower theory that the school can penalize any student speech advocating unlawful action (as opposed to, e.g., speech advocating a change in the law). (It’s possible Justice Thomas might also be inclined to a theory along these lines, but he did not ask any questions.) Justice Alito commented with respect to the broader top-side argument (page 20): “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 getting rid of speech that’s inconsistent with educational missions.”
— Deputy Solicitor General Ed Kneedler appeared to be urging the Court to rule more narrowly than the argument in the SG’s brief, such as a holding limited to student encouragement of the use of illegal drugs (see pages 19-20). For a sense of what such a advocacy-of-drug-use-only holding might look like, see pages 14-16 of the Liberty Legal Institute amicus brief. (To be clear, the LLI does not favor such a holding, but argues that it would be greatly preferable to, and less dangerous than, a broader holding such as that urged by the Petititoners and the SG — particularly if the Court is “very clear about the basis for [such a drug-advocacy] exception.”)
— Both the Chief Justice (page 10) and Justice Souter (page 31) expressed some concern that a requirement of viewpoint neutrality would wreak havoc in the classroom itself, if students are thereby permitted to contradict the teacher’s lessons or to change the subject matter of class discussion. The Chief Justice: “Why is it that the classroom ought to be a forum for political debate simply because the students want to put that on their agenda? Presumably the teacher’s agenda is a little bit different and includes things like teaching Shakespeare or the Pythagorean Theorem, and just because political speech is on the student’s agenda, I’m not sure that it makes sense to read Tinker so broadly as to include protection of . . . that speech.”
I might be wrong, but I had not understood the Tinker doctrine to be of much, if any force, with respect to student speech that is part of classroom discussion. Obviously, what students can say as part of class discussion can be much more regulated by subject matter and even viewpoint than speech in the school setting but outside of class. Cf. Hazelwood (holding that a school has much more leeway to regulate student speech in curricular activities). (As Justice Brennan wrote in his Hazelwood dissent, “under Tinker, the school may constitutionally punish the budding political orator if he disrupts calculus class but not if he holds his tongue for the cafeteria . . . because student speech in the noncurricular context is less likely to disrupt materially any legitimate pedagogical purpose.”) In any event, the Morse case does not raise that discrete question.
— The Court does not seem terribly keen on the notion of holding the principal monetarily liable for penalizing the student for the “Bong Hits for Jesus” banner — so perhaps the case will be decided purely on qualified immunity grounds, without reaching the merits, on the theory that the law was not clearly established. [UPDATE: A couple of readers have written (e.g., Sam Bagenstos, in the comments) to remind me that under Saucier v. Katz, the Court’s practice is to reach the merits before addressing qualified immunity — although there is some play in the joints, see Brosseau v. Haugen, and some sentiment among the Justices for rethinking the Saucier ordering rule (see the Breyer/Scalia/Ginsburg concurrence in Brosseau). My thanks to these readers for the head’s-up.]
