Court grants three cases
The Supreme Court agreed on Friday to rule on the power of public school officials to discipline students for pro-drug comments or displays during school events. This was one of three new cases the Justices voted to review. Today’s orders list can be found here.
The Court also said it would rule on whether taxpayers may sue to challenge the White House program of promoting federal aid to religious “faith-based” organizations. And it accepted a test case on whether government employees doing their official duties are subject to damage lawsuits under the RICO anti-racketeering law or under the Constitution.
In each of the cases, the Court’s order spelled out a shortened briefing schedule that will have the final briefs submitted by Feb. 16 — time enough to be argued during the Court’s February sitting, which concludes on Feb. 28. Ordinarily, a briefing schedule allows for 115 days in total; under the orders issued Friday, all briefing in each of the new cases must be completed in a total of 78 days. Because two of the new cases are appeals by the federal government, experienced counsel in the office of the U.S. Solicitor General will be under the heaviest pressure to prepare. In the third case, the initial brief also is to be filed by an experienced advocate, former U.S. Solicitor General (and former federal judge and Whitewater prosecutor) Kenneth W. Starr.
In the student free-expression case, the Justices had examined that appeal five separate times before agreeing to hear it. The case is Morse v. Frederick (06-278, UPDATED petition here). The case involves an appeal by a high school principal and the school board in Juneau, Alaska, supported by the National School Boards Association and various anti-substance abuse groups. The case tests whether it violates the First Amendment for school officials to bar students from displaying messages promoting the use of illegal substances at school-sponsored activities and whether school officials have immunity to damages lawsuits under civil rights law for disciplining a student for displaying a banner with a slang reference to marijuana.
The student, Joseph Frederick, at the time a senior at Juneau-Douglas High School, was suspended for ten days after holding up a banner at a school-sponsored rally; the banner read “Bong Hits 4 Jesus” — “bong” is a slang word for the paraphernalia used to smoke marijuana, and “bong hits” is teen slang for smoking pot.
The taxpayer lawsuit the Court will examine — Hein v. Freedom from Religion Foundation, et al. (06-157, petition here) — puts before the Justices for the first time the Bush Administration’s controversial policy of extending financial aid to “faith-based” groups. The issue, however, is not whether that violates constitutional principles of separation of religion and government. Rather, the case turns on whether taxpayers have a right to sue (”standing”) to challenge a federal program that aids religion, but not with funds specifically earmarked by Congress for such organizations. The challenge in the case is aimed at a series of White House-sponsored regional conferences on federal aid to religious groups, paid for with general funds provided by Congress to the White House for its discretionary use.
The third new case the Court will be hearing is an appeal by six employees of the Interior Department’s Bureau of Land Management (Wilkie, et al., v. Robbins, 06-219, petition here). They are challenging a Tenth Circuit Court decision that they say exposes federal employees to damages liability merely for carrying out their regulatory duties for the benefit only of the government, not themselves. The case grows out of a tense and prolonged conflict between government land-management officials and Harvey Frank Robbins, who runs a dude ranch near Thermopolis, Wyo. Robbins contended in his lawsuit that officials took a series of harassing actions that put his ranch, the High Island Ranch, out of business.
The appeal not only involves the question of potential liability under RICO, but also under the Fifth Amendment; Robbins claims that he had a right embedded in that Amendment to exclude government officials from his private property and that such a right includes a claim that officials retaliated against him for exercising that right.
The case has not yet gone to trial, but the Supreme Court granted review nonetheless after the U.S. Solicitor General appealed.
The Ninth Circuit’s decision in Frederick v. Morse (which case is styled Morse v. Frederick in the Supreme Court) is two-thirds right and one-third wrong.
The Ninth Circuit was right that the school district violated the First Amendment by punishing a student for holding, outside school property, a Bong Hits 4 Jesus banner.
But it was wrong to deny the school officials qualified immunity, since there is enough ambiguity under the Supreme Court’s and Ninth Circuit’s school free-speech decisions that a school official might not have known that such speech was protected in a K-12 school, and such a school officials would not be plainly incompetent in failing to predict that the Ninth Circuit would hold such speech protected.
When I say that the Ninth Circuit was right to find the speech protected, I mean under existing court decisions.
The Supreme Court, of course, isn’t bound by past court decisions, and there may be enough votes on the court to reverse the Ninth Circuit even on the question of whether the speech was protected at all.
If you add together the justices who have never been enthusiastic about the Tinker line of Supreme Court decisions, and justices who will be very offended by a flippant reference to drugs, and inclined to make an exception for drug-related speech, you might very well be able to cobble together a majority to reverse the Ninth Circuit’s decision on whether the speech was protected.
Ideally, though, the Supreme Court would reaffirm Tinker, and uphold the Ninth Circuit’s finding that the student’s speech was protected, but overturn its denial of qualified immunity to the school officials.
It’s worth noting that the Ninth Circuit’s decision wasn’t written by a liberal, or pro-drug, justice.
It was a unanimous ruling joined in by both Republican and Democratic appointees. It was written by Andrew Kleinfeld, who was appointed by George H.W. Bush, and joined in by Kim Wardlaw, a Clinton appointee, and Cynthia Holcomb Hall, a Reagan appointee.
Comment by Hans Bader — December 1, 2006 @ 5:52 pm