LINDA GREENHOUSE, NY TIMES - Kenneth W. Starr had a strategy for
convincing the Supreme Court that an Alaska high school principal and
school board did not violate a student's free-speech rights by punishing
him for displaying the words "Bong Hits 4 Jesus" on a 14-foot-long
banner across the street from school as the 2002 Olympic torch parade
went by. "Illegal drugs and the glorification of the drug culture are
profoundly serious problems for our nation," Mr. Starr, a former
solicitor general, told the justices in the opening moments of his
argument on Monday. In other words, his approach was to present the
free-speech case as a drug case and argue that whatever rights students
may have under the First Amendment to express themselves, speaking in
oblique or even in arguably humorous dissent from a school's official
antidrug message is not one of them. . .
A majority of the court seemed willing to create what would amount to a
drug exception to students' First Amendment rights, much as the court
has in recent years permitted widespread drug testing of students, even
those not personally suspected of using drugs, under a relaxed view of
the Fourth Amendment prohibition against unreasonable searches.
Mr. Starr's biggest ally on the court was the man who once worked as his
deputy in the solicitor general's office, Chief Justice John G. Roberts
Jr. The chief justice intervened frequently throughout both sides of the
argument, making clear his view that schools need not tolerate student
expression that undermines what they define as their educational
mission.
"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?" Chief
Justice Roberts asked Mr. Starr.
The question was particularly interesting because Mr. Starr had just
sought to reassure the court that his argument was not limitless. The
court's leading precedent on student speech, a 1969 decision called
Tinker v. Des Moines School District, "articulates a baseline of
political speech" that students have a presumptive right to engage in,
Mr. Starr said.
That was too far to the middle for the chief justice. "Presumably, the
teacher's agenda is a little bit different and includes things like
teaching Shakespeare or the Pythagorean theorem," he said, adding that
"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."
And later, Chief Justice Roberts took issue with a suggestion by the
student's lawyer, Douglas K. Mertz, that schools that seek to inculcate
an anti-drug message must permit students, outside the formal classroom
setting, to offer competing views. . . "Where does that notion that our
schools have to be content neutral" come from, the chief justice wanted
to know. He added, "I thought we wanted our schools to teach something,
including something besides just basic elements, including character
formation and not to use drugs.". . .
Justice Anthony M. Kennedy took issue with Mr. Mertz's characterization
of the display as not being disruptive. "It was completely disruptive of
the message, of the theme that the school wanted to promote," Justice
Kennedy said, adding: "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.". . .
Justice Samuel A. Alito Jr. asked a series of questions suggesting that
his sympathies lay with the student rather than the school. That would
be consistent with a decision he wrote six years ago as a judge on the
United States Court of Appeals for the Third Circuit that struck down a
Pennsylvania school district's speech code. . .
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/19/
AR2007031902165_pf.html
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convincing the Supreme Court that an Alaska high school principal and
school board did not violate a student's free-speech rights by punishing
him for displaying the words "Bong Hits 4 Jesus" on a 14-foot-long
banner across the street from school as the 2002 Olympic torch parade
went by. "Illegal drugs and the glorification of the drug culture are
profoundly serious problems for our nation," Mr. Starr, a former
solicitor general, told the justices in the opening moments of his
argument on Monday. In other words, his approach was to present the
free-speech case as a drug case and argue that whatever rights students
may have under the First Amendment to express themselves, speaking in
oblique or even in arguably humorous dissent from a school's official
antidrug message is not one of them. . .
A majority of the court seemed willing to create what would amount to a
drug exception to students' First Amendment rights, much as the court
has in recent years permitted widespread drug testing of students, even
those not personally suspected of using drugs, under a relaxed view of
the Fourth Amendment prohibition against unreasonable searches.
Mr. Starr's biggest ally on the court was the man who once worked as his
deputy in the solicitor general's office, Chief Justice John G. Roberts
Jr. The chief justice intervened frequently throughout both sides of the
argument, making clear his view that schools need not tolerate student
expression that undermines what they define as their educational
mission.
"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?" Chief
Justice Roberts asked Mr. Starr.
The question was particularly interesting because Mr. Starr had just
sought to reassure the court that his argument was not limitless. The
court's leading precedent on student speech, a 1969 decision called
Tinker v. Des Moines School District, "articulates a baseline of
political speech" that students have a presumptive right to engage in,
Mr. Starr said.
That was too far to the middle for the chief justice. "Presumably, the
teacher's agenda is a little bit different and includes things like
teaching Shakespeare or the Pythagorean theorem," he said, adding that
"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."
And later, Chief Justice Roberts took issue with a suggestion by the
student's lawyer, Douglas K. Mertz, that schools that seek to inculcate
an anti-drug message must permit students, outside the formal classroom
setting, to offer competing views. . . "Where does that notion that our
schools have to be content neutral" come from, the chief justice wanted
to know. He added, "I thought we wanted our schools to teach something,
including something besides just basic elements, including character
formation and not to use drugs.". . .
Justice Anthony M. Kennedy took issue with Mr. Mertz's characterization
of the display as not being disruptive. "It was completely disruptive of
the message, of the theme that the school wanted to promote," Justice
Kennedy said, adding: "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.". . .
Justice Samuel A. Alito Jr. asked a series of questions suggesting that
his sympathies lay with the student rather than the school. That would
be consistent with a decision he wrote six years ago as a judge on the
United States Court of Appeals for the Third Circuit that struck down a
Pennsylvania school district's speech code. . .
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/19/
AR2007031902165_pf.html
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