Breaking News

Analysis: A new exception to “Tinker”?

The Supreme Court on Monday toyed with the notion that public school officials should have added discretion to censor student speech that they may interpret as advocating use of illegal drugs. But this was only a flirtation, not a warm embrace. During the argument in Morse v. Frederick (06-278), a clear majority of the Justices showed significant skepticism about creating a wide exception to the curb on suppression of student speech that the Court spelled out in 1969 in Tinker v. Des Moines School District

As blog colleague Marty Lederman has pointed out in the post below, a sweeping exception to Tinker had the visible support Monday of only Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, who seemed to be competing to lay out the most generous view of officials’ discretion to enforce school-preferred messages. Although each made a fleeting comment here and there to suggest that they might hesitate to endorse total discretion for teachers and principals to stamp out any message that school officials deemed contradictory to their own definition of “educational mission,” there was little to suggest this was a real hesitation.

The Justice Department, and some school officials and supporters, would prefer a declaration by the Court that public school administrators are constitutionally free to bar any student speech that might appear to them to be advocacting a violation of law — a more sweeping proposition than wiping out student speech that seems to advocate using illegal drugs. Justice Anthony M. Kennedy, whose vote the Department would surely need for a decision going that far, was openly hostile to it. And, somewhat surprisingly, so was Justice Samuel A. Alito, Jr., one of the Court’s more conservative members.

Kennedy, in the past, has been most aggressive in supporting official action to deal with drug abuse, and especialliy so in the public school context. But he left no doubt, in questioning Kenneth W. Starr, attorney for the Juneau, Alaska, School Board and principal Deborah Morse, that pro-drug speech suppression was about as far as he would go in this case. “The rule you proposed,” Kennedy told Starr, “is that the school has wide discretion to define its educational mission and it can restrict speech that;s inconsistent with that mission….And it seems to me that;s much broader than Tinker.”

Scalia sensed this hostility from Kennedy, jumping in to suggest that he favors suppression of any student speech “that advocates violation of the law.” Starr, seeming to walk away somewhat from the points that had troubled Kennedy, said that would lead the Court into areas of suppression of protected speech, and added: “I don’t think the Court needs to stray into those areas…”

Much of the one-hour hearing was taken up with either puzzled efforts by the Justices to find out just what had happened in the student speech censorship incident outside a Juneau high school in early 2002. It was far from clear that the Justices had a settled view of whether senior Joseph Frederick actually had disrupted anything by holding up a 14-foot banner reading “Bong Hits 4 Jesus” during a rally to honor the Olympic torch. And it was not plain that the Justices were sure of what that banner’s message really was.

The Chief Justice, for example, seemed uncertain about what drove the high school senior to make his demonstration across from the school during the torch rally. He ascribed a number of motives to Frederick that Frederick’s lawyer, Douglas K. Mertz, promptly disputed, saying the record disputed Roberts’ assumptions.

Sounding somewhat frustrated, Justice David H. Souter remarked near the end of the hearing: “We have had a debate here for going on 50 minutes about what Tinker means, about the proper charaterization of the behavior, the non-speech behavior. The school’s terms in dealing with the kids that morning. The meaning of…the statement. We’ve been debating this in this courtroom for going on an hour, and it seems to me…there is reasonable debate.” Thus, Souter said, perhaps the school principal may not have known, at the time of the incident, what the correct view of the law was.

That was a clear indication that the Court may well be tempted to find that Principal Morse could not be charged with knowledge, back in 2002, of what exactly her official discretion was under the Tinker doctrine, and thus might be accorded legal immunity, at least to damages claims.

The Chief Justice reinforced that point with an expression of concern that, not only might a decision in the student’s favor mean that Principal Morse would “have to pay out of her own pocket” money damages that Frederick might yet win, but it also might mean that “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.”

Justice Stephen G. Breyer also seemed worried that a decision broadly favoring Frederick’s right to stage his demonstration could mean “we’ll suddenly see people testing limits all over the place in the high schools.”

The Court is expected to decide the case before recessing for the summer.