Monday, March 19, 2007

Morse v. Frederick

Dahlia Lithwick epitomizes sneering, entitled liberal jurisprudence. Either a case is before the Supreme Court because of conservative power-grabbing, or it's before the court because some morons down below kicked it up for some reason.

Case in point. This is Morse v. Frederick. I wrote about this case for UCLA's Moot Court competition. I took the School's side, mostly for fun. In lieu of a long argument in favor of the school's side, let me at least show that it's far more complicated then Ms. Lithwick gives it credit for.
Then Starr says schools are charged with inculcating "habits and manners of civility" and "values of citizenship." Yes, sir. In the first six minutes of oral argument Starr has posited, without irony, a world in which students may not peaceably advocate for changes in the law, because they must be inculcated with the values of good citizenship.
But the problem here is not 'peaceably advocating for changes in the law.' In fact, no one would care if this was 'peaceably advocating for changes in the law.' The problem, Starr argues, is that the student hijacked a school event to advocate for changes in the law.

In other words, if this was a case of a student assembly, and some kid ran up to the stage, grabbed the microphone, and started ranting about Jesus, you could punish him just fine. Why? Because schools do teach students that there is a time and a place for political advocacy, and that they do need to raise their hands to get called on. That much is settled law. The probably with this case is that it falls in the nasty crack between a) silently wearing a black armband (obviously fine) and b) ranting on stage during an assembly (not okay).

Chief Justice John Roberts wonders why students should be allowed to set the classroom agenda when teachers are trying to teach Shakespeare and Pythagoras. Starr says that in the Vietnam protest case, the school tried to "cast a pall of orthodoxy" by banning student protest. Whereas, he suggests—again without a whiff of irony—that students should be able to offer no dissenting opinions here because drugs, alcohol, and tobacco are bad.
Aren't there pretty clear distinctions between the two types of speech? Surely there is a discernable difference between some kind of advocacy for illegal, dangerous conduct (drugs) and calling for an end to the Vietnam War. Again, bizzaro pro-pot messages fall in the nasty space between, for example, a t-shirt that says "Shoot your teachers in the head" (not okay) and a t-shirt that says "US out of Iraq" (obviously fine). The question is not that there IS a line, it's WHERE to draw it.

It's hard to imagine that the students of America will be better served by giving their educators the ultimate gateway drug: the apparently limitless power to define their "educational mission" in any way they please in order to suppress any and all student speech that doesn't conform. That kind of power strikes me as more addictive, and even more dangerous, than any drug.
Whatever the decision in this case is, it will not give Educators the "limitless power" to define their educational mission this broadly. No one is arguing this. Kenneth Starr is arguing that it should be banned mostly because it's pro-drug -- with all the health and safety problems that entails -- or because it calls for arguably illegal conduct. Any other decision will overrule forty years of education case law, and Roberts has no particular motive to do that.


Rebecca C. Brown said...

I'm surprised and disappointed that the justices were explicitly planning to make their decisions in this case based on the repurcussions of their decision rather than on the perameters of constitutionally protected speech. Sounds like activist judging to me.

Kevin said...

It's traditional to use Oral Argument to consider the repercussions. The actual opinion will usually be grounded almost entirely in precedent.

Of course, strangely enough, these precedent-bound, deeply reasoned opinions are almost always penned to avoid the repercussions the authoring justices are concerned about.

A good way to tell Liberal justices apart from Conservatives is that Liberals are explicit that results matter, whereas Conservatives care deeply but will never admit it.