Morse v. Frederick – Oral Argument – March 19, 2007

Media for Morse v. Frederick

Audio Transcription for Opinion Announcement – June 25, 2007 in Morse v. Frederick

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John G. Roberts, Jr.:

The Court will hear argument first today in case 06-278, Morse vs. Frederick.

Mr. Starr.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation.

Congress has so recognized, as has this Court, time and again.

The magnitude of the problem is captured in the amicus brief, the Court has a number of amicus briefs before it, but the amicus brief of General McCaffrey, Secretary Bennett, and a number of organizations.

And particularly, pages 5 to 9 of that brief, the nature and the scope of the problem are well-captured.

Anthony M. Kennedy:

Well, is this case limited to signs about drugs?

What is the rule that you want us to adopt for deciding this case?

Kenneth W. Starr:

The rule the Court… that it articulated in Tinker.

The rule of the Court as articulated in Tinker is that there is, in fact, a right to political speech subject to disruption, requirements that the speech not be disruptive.

Anthony M. Kennedy:

Disruptive of what?

Disruptive of the classroom order?

There was no classroom here.

Kenneth W. Starr:

Including but not limited to.

This was a school authorized event, this was education outside of the classroom.

It was essentially a school simply out of doors.

It was essentially–

David H. Souter:

Well, I can understand if they unfurled the banner in a classroom that it would be disruptive, but what did it disrupt on the sidewalk?

Kenneth W. Starr:

–The educational mission of the school.

David H. Souter:

No, but I mean, that’s at a level of generality that doesn’t get us very far.

I mean, what specifically did it disrupt?

Did it disrupt the parade, did it disrupt teaching, what was it?

Kenneth W. Starr:

5520, a school policy of the board that says emphatically that political speech is protected, embracing Tinker.

David H. Souter:

Then if that’s the rule, the school can make any rule that it wants on any subject restrictive of speech, and if anyone violates it, the result is, on your reasoning, it’s disruptive under Tinker.

Kenneth W. Starr:

Not at all.

I think that in form–

David H. Souter:

Then I’m missing the argument.

Kenneth W. Starr:

–The argument is that this Court in Tinker articulated a rule that allows the school boards considerable discretion both in identifying the educational mission and to prevent disruption of that mission, and this is disruptive of the mission–

Anthony M. Kennedy:

Well, suppose you have… suppose you have a mission to have a global school.

Anthony M. Kennedy:

Can they ban American flags on lapel pins?

Kenneth W. Starr:

–Absolutely not, because under Tinker that is political expression.

Let me be very specific.

This case is ultimately about drugs and other illegal substances.

Ruth Bader Ginsburg:

So if the sign had been “Bong Stinks for Jesus”, that would be, and Morse had the same reaction, that this was demeaning to the Olympics and it was unruly conduct, that there would be a protected right under Tinker because the message was not promoting drugs?

Kenneth W. Starr:

She stated in her answers to interrogatories that she may very well not have interfered with the banner had it in fact said legalize marijuana.

Under our theory, we think she could have interfered with that because it was disruptive to the event, it was disorderly to the event itself, but the–

David H. Souter:

What would be disorderly?

I don’t understand this disorder.

If somebody holds up a sign and says change the marijuana laws, why is it disruptive of anything, simply because the school quite naturally has said we support the enforcement of the law, and the law right now does forbid the use of marijuana.

Kenneth W. Starr:

–I–

David H. Souter:

It’s political speech, it seems to me.

I don’t see what it disrupts, unless disruption simply means any statement of disagreement with a position officially adopted by the school.

Is that what you mean by disruption?

Kenneth W. Starr:

–No.

Your Honor, first of all, this is, I think, an unusual characterization, namely for this to be called political speech.

We would–

David H. Souter:

If it’s calling… I mean–

Kenneth W. Starr:

–We think it’s a First… I’m sorry.

David H. Souter:

–A call for a change in the law, I would have supposed, was political speech.

Kenneth W. Starr:

That wasn’t the interpretation.

Your Honor, let’s back up, if I may.

Someone has to interpret the message and the front line message interpreter is the school official.

The school official–

David H. Souter:

Well, that may be, but that’s not the hypo.

The… the hypothetical is, what if there is a sign or a statement in the school calling for a change in, you know, the prohibition against marijuana use?

As a call for change in the law, I would suppose it was political speech.

But as I understood the argument you were making, it would still be regarded as an exception, as it were, to Tinker, because it was disruptive.

And it was disruptive in the sense that it disagreed with official school policy, which was to enforce the law or support the law as it was.

Is that your position on what disruption means under Tinker?

Kenneth W. Starr:

–But our… the answer is no.

Because what we are also urging the Court to consider is its gloss on Tinker and Frazier, and also what this Court said in Kuhlmeier.

And in Frazier, the Court was very clear, the first three paragraphs in part three of the opinion, in talking about the habits and manners of civility, and inculcating the values of citizenship.

That, in fact, is what is happening here.

There is an effort of the… to prevent a message that is inconsistent with a fundamental message of the schools, which is the use of illegal drugs is simply verboten, and we believe that is permitted under Tinker–

Antonin Scalia:

So you want to get away from a hypothetical then.

I don’t know why you try to defend a hypothetical that involves a banner that says amend the marijuana laws.

That’s not this case as you see it, is it?

Kenneth W. Starr:

–Well, it’s certainly not this case, but–

Antonin Scalia:

This banner was interpreted as meaning smoke pot, no?

Kenneth W. Starr:

–It was interpreted… exactly, yes.

It was interpreted as an encouragement of the drug culture and–

Samuel A. Alito, Jr.:

Are you arguing that there should be a sui generis rule for speech that advocates illegal drug use, or this broader argument that the school can suppress any speech that is inconsistent with its educational mission as the school–

Kenneth W. Starr:

–I think that–

Samuel A. Alito, Jr.:

–defines it?

Kenneth W. Starr:

–I apologize.

The Court can certainly decide this on very narrow grounds, that there are certain substances, illegal drugs, we would include alcohol and tobacco, that’s part of the school’s policy, because those are illegal substances which are very injurious to health.

And this Court has noted that in Bernonia and in Earls, time and again, it is that these are very dangerous substances and we have a clear policy sanctioned by Congress, and also noted by courts across the country, that illegal drugs are so dangerous that schools are entitled to have a message going–

John G. Roberts, Jr.:

But the problem… the problem, Mr. Starr, is that school boards these days take it upon themselves to broaden their mission well beyond education or protection from illegal substances, and several of the briefs have pointed out school boards have adopted policies taking on the whole range of political issues.

Now, do they get to dictate the content of speech on all of those issues simply because they have adopted that as the part of their educational mission?

Kenneth W. Starr:

–No, because that may very well be inconsistent with Tinker.

Tinker articulates a baseline of political speech is, in fact, protected, subject to–

John G. Roberts, Jr.:

Well, I think that… I think you’re right about that, and I guess my question goes to how broadly we should read Tinker.

I mean, 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 those, that speech.

Kenneth W. Starr:

–This Court has not read Tinker quite so broadly in both Frazier and in Kuhlmeier, and there are a couple of aspects of Tinker that I think are worthy of note.

One, that there was no written policy there, so there was an issue of standardless discretion being exercised.

And also–

Ruth Bader Ginsburg:

But it may have made a difference in Tinker.

If the school had a policy, defend our troops in Vietnam, would that have brought this into the category that you are now carving out?

Ruth Bader Ginsburg:

You said that Tinker had no policy, but suppose the school did have a policy, patriotism, we support our troops, no bad speech about the war in Vietnam.

Should Tinker have come out the other way?

Kenneth W. Starr:

–No, it should not, because there… I think there are concerns with respect to what this Court has identified it is trying to, even in the public school setting, quite apart from the university setting, to cast a pall of orthodoxy to prevent the discussion of ideas.

What is happening here of course in this case, it can be decided very narrowly, that drugs, alcohol and tobacco just have no place in the schools.

And–

Anthony M. Kennedy:

Yes, but the rule you proposed, I thought, in response to my question is that the school has wide discretion to define its educational mission and it can restrict speech that’s inconsistent with that mission.

Kenneth W. Starr:

–And that’s what this Court in–

Anthony M. Kennedy:

And it seems to me that’s much broader than Tinker.

Now you said, well, there is an exception for political speech.

Well, but then you’re right with Justice Ginsburg’s hypothetical, let’s suppose that they have a particular view on a political issue, No Child Left Behind, or foreign intervention and so forth.

Kenneth W. Starr:

–Justice Kennedy, the words that you articulated are essentially quotes of Frazier and Kuhlmeier, so there is a broadening of the lens and a restoration, frankly, of greater school discretion in those two cases than one might see in Tinker.

They of course drew, as you well know, from Justice Black’s warning in dissent of Tinker that the Federal courts, Federal judiciary should not be extending itself unduly into the work of the school boards’–

Antonin Scalia:

Why do we have to get into the question of what the school board’s policy is and what things they can make its policy?

Surely it can be the… it must be the policy of any school to discourage breaking of the law.

I mean, suppose this banner had said kill somebody, and there was no explicit regulation of the school that said you should not, you should not foster murder.

Wouldn’t that be suppressible?

Kenneth W. Starr:

–Of course.

That is not–

Antonin Scalia:

Of course it would, so–

Kenneth W. Starr:

–The answer is yes.

Antonin Scalia:

–Why can’t we decide this case on that narrow enough ground, that any school whether it has expressed the policy or not, can suppress speech that advocates violation of the law?

Kenneth W. Starr:

I think it can, but it raises some interesting potential hypothetical questions, what about listening to the voice of Martin Luther King Junior, conscientious objection and so forth.

I don’t think the Court needs to stray into those areas because here we have a written policy which does in fact respond to concerns about the exercise of standardless discretion.

Antonin Scalia:

Does it have–

John Paul Stevens:

Let me just clear up one thing to be 100 percent sure I understand your position.

It does… the message is the critical part of this case.

If it was a totally neutral message on a 15-foot sign, that would be okay.

You’re not saying 15-foot signs are disruptive?

Kenneth W. Starr:

Not inherently disruptive, but in fact… the answer is yes.

We’re not saying that–

John Paul Stevens:

And so we’re focusing on the message and that’s the whole crux of the case.

Kenneth W. Starr:

–That’s why this case is here because of the message.

Stephen G. Breyer:

Well, why is that?

Why?

I mean suppose you go on a school trip, and the teacher says on the school trip, I don’t want people unfurling 15 foot banners.

I don’t care what they are about.

Kenneth W. Starr:

It may very well be.

Stephen G. Breyer:

We are going to visit the state capital and we are not marching down the street with 15 foot banners.

I mean, does the First Amendment say the teacher can’t say that?

Kenneth W. Starr:

It does not.

But the Juneau school board and 5520, Justice Breyer, allows… in fact it has a Tinker statement in the first paragraph of 5520, which is also, you will not be advocating drugs.

And so there is essentially a culture of liberty in Juneau.

You don’t have to–

Stephen G. Breyer:

You just said suppose… why should I not say that?

I mean I’m not going to do it, necessarily.

But why could I not say, would it be wrong in an opinion to say a school board can on a school trip tell the students they can’t unfurl 15 foot banners?

Is that a correct statement of the law or not?

In your opinion.

Kenneth W. Starr:

–In my opinion it is a correct statement of the law.

But in response to Justice Stevens’ question, the message here is in fact critical because what we know about this case is that, and you’re here of course to respond to this case, which has to do with a message that the message interpreter, Deborah Morse, who by the way–

John Paul Stevens:

It’s also critical here to your case that it was a school event.

If it, if this had have been two blocks down the street there would have been no objection.

Kenneth W. Starr:

–If Mr. Frederick had seen fit to go down Glacier Avenue to J and J’s, a popular hangout, there would have been no high school jurisdiction.

There may have been elementary school… but yes.

He could have gone, Justice Stevens, to the State capital or anywhere along the ten mile route.

Ruth Bader Ginsburg:

Suppose it were Saturday instead of a weekday.

Kenneth W. Starr:

I beg your pardon.

Ruth Bader Ginsburg:

Suppose it were Saturday, not a school day.

And the school children were not required to show up at the Olympic event but were encouraged to and the same thing happened.

Would it make a difference that it wasn’t in the course of a regular school day?

Kenneth W. Starr:

No.

I think it still, under your hypothetical would be school sponsored.

But there might be a more difficult showing of disruption or inconsistency with the educational mission.

That is what this Court articulated in Frazier and again in Kuhlmeier that the school is able under our policies of federalism and value of federalism and democratic theory to fashion its educational mission subject to constitutional safeguards.

And that mission of preventing the schools from being infected with pro-drug messages continues wherever there is school jurisdiction, and that would include on a Saturday field trip or other kind of activity and I think that–

Antonin Scalia:

–Mr. Starr, you… you responded to Justice Breyer that you think the school could just prohibit the unfurling of 15 foot banners on a trip.

Could it prohibit the wearing of black armbands on a trip?

Kenneth W. Starr:

–I don’t believe so.

Antonin Scalia:

And if not… if not, what’s the difference?

Kenneth W. Starr:

Because of the potential for disruption, disorderliness in the event and the judgment that is entrusted to–

David H. Souter:

But don’t we have to be more specific about the context in determining whether there’s disruption?

If it’s a school trip to an art museum, unfurling a 15 foot banner in front of the pictures is clearly going to be disruptive of the object of the trip.

Unfurling a banner in a classroom is going to be disruptive to the teaching of Shakespeare or whatever is supposed to be going on in there.

What we have here is the unfurling of a banner on a sidewalk in a crowd with kids throwing snowballs waiting for some… somebody to run by with a TV camera nearby.

And there is a real question as to whether, it seems to me, as to whether it is in a kind of practical, real world sense, disruptive of anything.

And if there is such a question, shouldn’t the answer favor the right to, to make the speech as opposed to favor the right to suppress it?

Kenneth W. Starr:

–Your Honor, the answer is no.

We do think that if the test that this Court has articulated which we embrace, looks not simply to “disruption” but inconsistency with what this Court has focused… this Court’s language, the basic educational mission, then surely–

David H. Souter:

All right.

Let me, let me follow, actually ask you the same question on… on that.

Because in response to Justice Scalia’s question you said certainly that the school has got the right to have a policy that forbids violating the law and calling for violations of the law.

Accepting that as a premise, don’t we need, before the school may suppress the speech, don’t we need at least a statement which is clearly inconsistent with that policy?

And if that is so, is Bong Hits 4 Jesus inconsistent with it?

It sounds like just a kid’s provocative statement to me.

Kenneth W. Starr:

–Your Honor, with all due respect, the key is to allow the school official to interpret the message as long as that interpretation is reasonable.

You might disagree with that just as Justice Brennan disagreed with whether Matt Frazier’s speech was all that terrible.

But he said even though it wasn’t all that terrible I nonetheless defer to the interpretation of school officials.

That’s what our educational system is about.

Ruth Bader Ginsburg:

But those were the words and characterizing them as offensive/but here one could look at these words and say it’s just nonsense.

Or one could say it’s like mares-eat-oats.

Ruth Bader Ginsburg:

It isn’t clear that this is “smoke pot”.

Kenneth W. Starr:

Your Honor, again, Deborah Morse, a conscientious principal, interpreted the message in light of the subculture of the school where drug use is a serious problem.

And it was on the spot judgment.

We believe that judgment was reasonable as opposed to a judgment reached in judicial chambers, but we know that that was also the judgment of the superintendent and district judge–

John Paul Stevens:

Is that a judgment clear enough as a matter of law, or is there possible debate as to whether that’s a reasonable interpretation of the message?

Let’s assume it was an ambiguous message.

Would we have to accept her interpretation on summary judgment?

Kenneth W. Starr:

–Yes, I believe you do.

And… well, that’s of course a question for the district judge.

And here the judge analyzed the facts in terms of what the individual was trying to say and determined that that is a reasonable interpretation and that is all that is required under this Court’s law.

I’d like to reserve the remainder of my time.

Thank you.

John G. Roberts, Jr.:

Thank you, Counsel.

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court.

The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the use of illegal drugs.

As this Court observed in Earls, the nationwide drug… drug epidemic makes the war against drugs a pressing concern in every school.

Anthony M. Kennedy:

And is that the rationale on which you wish us to decide this case, nothing more broad?

Edwin S. Kneedler:

The Court need not decide anything more broadly than that.

Anthony M. Kennedy:

I’m asking what your recommendation is to what our rule should be this case.

Edwin S. Kneedler:

Well, I think this is a manifestation of the principle articulated in Earls and repeated in Hazelwood that a, school does not have to tolerate a message that is inconsistent with its basic educational–

Samuel A. Alito, Jr.:

Well, that’s a very… 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, of… of getting rid of speech that’s inconsistent with educational missions.

Edwin S. Kneedler:

–That’s why I think there would, there would be, it would make a lot of sense for the Court to articulate a rule that had to do with encouraging illegal conduct and particularly–

Stephen G. Breyer:

Well, why go into this?

I mean, that’s what I actually, seriously don’t understand.

Suppose the rule has the following rule: by the way, on our field trips you can carry around 15 foot banners.

They can say anything.

Except they can’t talk about drugs and they can’t talk about sex and they can’t talk about… I don’t know.

Or I’d say three things.

Would that be constitutional?

Edwin S. Kneedler:

–Well… I think, I think a school could certainly prohibit the display of banners on a school trip or in a school assembly.

Stephen G. Breyer:

Suppose that this particular person had whispered to his next door neighbor,

“Bong Hits 4 Jesus, heh heh heh. “

you know.

Supposed that’s what had happened?

[Laughter]

Edwin S. Kneedler:

And that may well… that may well be different.

And that’s why I–

Stephen G. Breyer:

No.

What would be different… that’s what I… what a principal that has to act quickly sees across the street at a school meeting, a big banner go up making a joke out of drug use.

So the principal acts.

Now, are we supposed to divide that into little bitsy parts?

Because as soon as we do we are going to get a rather interesting, complicated and very difficult set of constitutional rules.

But you want us to do that.

Edwin S. Kneedler:

–No.

I do not.

I think… I think the point that you make that a principal sees the banner across the street and sees the word bong hits, and… and at the very moment when the Olympic torch was about to arrive, I think it was.

She made a quick judgment and an entirely reasonable one that the display of the slang words bong hits–

Anthony M. Kennedy:

Well, then you’re not arguing for the broad educational mission, which is what you said at the first.

Kenneth W. Starr:

Well, there are several gradations that the Court could take: Advocacy of illegal conduct generally; more specifically advocacy of illegal drugs.

But I believe… I think it’s important to recognize that this Court’s precedents recognize… recognize several different justifications for restricting student speech.

In Tinker itself which dealt with political speech, the Court was careful to point out that even then, if the speech could be shown to present a threat of a material disruption to the class work, and I think this would answer your question, Mr. Chief Justice, if the teacher wants to teach Shakespeare, the teacher doesn’t have to turn over the class to political speech.

Samuel A. Alito, Jr.:

But that’s a viewpoint-neutral regulation.

This isn’t, the principal didn’t say this was a viewpoint-neutral regulation, did she?

Edwin S. Kneedler:

–No.

No.

And… and, and just to finish, in Tinker even with a viewpoint concern, the Court said if you could show material disruption, and… and the Court made that clear in Tinker, by, by its comparison to several lower court decisions where wearing buttons had been prohibited because they had caused disruption.

And the third category in Tinker itself was where there would be an intrusion upon the rights of other students to be secure and be let alone.

That’s Tinker dealing with political speech.

But in Frazier and Hazelwood the Court identified additional categories of speech that could be governed by the school, and this is in footnote 4 of Hazelwood.

Edwin S. Kneedler:

The Court made clear that the ability to regulate those categories of speech goes beyond the question of whether there would be disruption or whether there would be–

John G. Roberts, Jr.:

So… so you think that the, not a 15 foot banner but a very discrete button that says “legalize marijuana”, although it might be covered as not being disruptive under Tinker, it could be inconsistent with the school’s mission and prohibited on that basis?

Edwin S. Kneedler:

–Well, I think… I think if, if the button is legalize marijuana during a referendum in the State, then that, that might be the category of political speech that could not be regulated.

Ruth Bader Ginsburg:

And at… at this very rally, I mean I thought your brief said that it’s okay to work for change in existing law which such a sign would be, but it is not okay to violate the law.

And no one was smoking pot in that crowd.

Edwin S. Kneedler:

But… but the, what was happening was a sign that was reasonably construed to encourage the use of illegal drugs.

David H. Souter:

All right.

Given the fact that this is a First Amendment case, isn’t a court forced into the position if it’s going to be consistent with what else we have said, even at the final appellate level, of giving pretty careful scrutiny to the statement itself in determining whether it may be suppressed or punished?

And if we do that, is it such a reasonable construction that this is an… an incitement to illegal drug use?

I mean it’s a statement which makes, makes the drug law look a little ridiculous, I think, but I’m not sure that that is very distinguishable from a statement saying

“you ought to change the drug law. “

Edwin S. Kneedler:

Well, I… I… I think in, in this Court’s decisions dealing with public schools, this Court has, has a consistent theme as to give deference to the judgments by the educators.

Public schools–

David H. Souter:

Do we have to give… let me ask you this.

And maybe this is the, as far as we can go with it here.

Is that the answer to the question here about what the statement means?

Edwin S. Kneedler:

–Yes.

David H. Souter:

In other words, if we give deference your argument wins.

But if we don’t give deference, then does anybody really know what the statement means?

Edwin S. Kneedler:

I don’t think the question is what Mr. Frederick intended.

The question is what a reasonable observer would think.

And the words “bong hits” are slang that would be particularly, have a particular characteristic of getting across to other student, and they suggest a casual tolerance and encouragement of–

John Paul Stevens:

What if the sign said “bong hits should be legal”?

Edwin S. Kneedler:

–I, I think that would be a judgment call.

I think the, I think the casual use–

John Paul Stevens:

Under your view wouldn’t the principal’s judgment always prevail?

Edwin S. Kneedler:

–Well it has to be a reasonable judgment and this is, this is reflected in Frazier.

John Paul Stevens:

Is that a question of fact or a question of law?

Edwin S. Kneedler:

Pardon me?

John Paul Stevens:

Is whether it’s a reasonable judgment–

Edwin S. Kneedler:

I think ultimately it’s a question of law, whether it’s a reasonable judgment.

Anthony M. Kennedy:

This, this… this parade had a theme to celebrate the Olympics, with… the high school kids are carrying the torch, the band is in it.

And suppose the banner said vote for, vote Republican, vote Democrat.

And he wants to be on the TV with that.

Could this, the principal make him take that sign out of the ground in that it’s inconsistent with the whole theme of, of, of the parade?

Something like our Kurle case?

Edwin S. Kneedler:

Yes.

I… I mean, I think for this reason.

This was essentially an outdoor assembly, where the… whether the students were assembled to watch a particular different, just as in an indoor assembly.

Anthony M. Kennedy:

Is that different from the rationale you’ve put.

Edwin S. Kneedler:

Yes.

Again, that’s why I don’t think there’s any one single rule that governs all cases.

This, this I think falls under the Frazier standard, where the Court said that, that schools have a duty to inculcate matters of civility and to prepare students for citizenship, and not violating the law is an important part of that and teachers’ act in loco parentis.

They act as guardians and they should be able to do, as this Court says in Earls, what a reasonable guardian would do.

That would mean don’t allow people to encourage lawbreaking.

Ruth Bader Ginsburg:

But it wasn’t, it wasn’t like an assembly, was it?

As I understand it, the children were released from school, but they were not required to attend this event and they were not required to stand in front of the school on the opposite side.

They weren’t monitored by their teachers, so they… and there were nonstudents in the crowd.

So it’s not like a school assembly.

Edwin S. Kneedler:

The students’ present at the event, presence as the event, was like an assembly.

Students may go into an assembly hall and not have to sit with their class.

They were released from class, but they were not released from school or school supervision.

There were teachers around there and the school could define what is the nature of our assembly at this public event and, just as in, in the auditorium a school could say there will be no political banners or, frankly, no banners about anything other than what the event is–

Antonin Scalia:

Were they required to go to this event and could they have skipped off and gone home without violating–

Edwin S. Kneedler:

–They were not allowed to go home.

They were required, they were required–

Antonin Scalia:

–They were required to attend.

Edwin S. Kneedler:

–They were required to be there if the classroom teacher decided to let them go out there, but they were under school supervision at that time.

David H. Souter:

Were they ever told what they were supposed to do in the sense did the school ever say, we are letting you out on the street to celebrate the Olympics and to do only that?

Was, was there an object to this release from the school building that was ever conveyed?

Edwin S. Kneedler:

If I may, I don’t think there’s any question that he knew in advance that this was about the Olympics.

That’s why he made the sign.

And they were released to go out and watch the torch go by.

He hasn’t raised any question of notice or due process concerns.

John G. Roberts, Jr.:

Thank you, Mr. Kneedler.

Edwin S. Kneedler:

Thank you.

John G. Roberts, Jr.:

Mr. Mertz.

Douglas K. Mertz:

Mr. Chief Justice and may it please the Court: This is a case about free speech.

It is not a case about drugs.

John G. Roberts, Jr.:

It’s a case about money.

Your client wants money from the principal personally for her actions in this case.

Douglas K. Mertz:

He does have a damages claim against the school district and the principal, but that’s by no means his chief object here.

The overwhelming object is to assert his free speech–

Anthony M. Kennedy:

Well, would you waive damages against this principal who has devoted her life to the school, and you’re seeking damages for her for this sophomoric sign that was held up?

Douglas K. Mertz:

–We are certainly willing to negotiate a minimum settlement of damages.

That is not the object here.

John G. Roberts, Jr.:

But there’s a broader issue of whether 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.

Douglas K. Mertz:

That is indeed a legitimate fear, Your Honor, and we believe the existing law takes care of it by requiring before qualified immunity can be breached that there be a demonstration that under the existing law at the time available to her–

John G. Roberts, Jr.:

And you think it was clearly established that she had to allow a student at a school-supervised function to hold a 15-foot banner saying 4 Jesus> [“]?

Douglas K. Mertz:

–I think it was clearly established at the time, Your Honor, that a principal could not engage in viewpoint censorship of a nondisruptive expression, under both Ninth Circuit law and this Court’s law.

The case had–

David H. Souter:

Does that, does that general statement that you just made apply to all circumstances in which a student-teacher relationship might be involved?

For example, in the course of teaching a class in Shakespeare would your rule prevail?

Douglas K. Mertz:

–The rule on qualified immunity?

David H. Souter:

Yes, the general rule which the teacher is supposed clearly to have known here.

For example, in the Shakespeare class, kid doesn’t, doesn’t say anything.

He doesn’t yell or scream or even raise his hand.

He just holds a little sign in the Shakespeare class that says 4 Jesus> [“].

As I understood the general rule that you said the teacher was bound to know here, the teacher I suppose would be required or the school would be required to tolerate that sign in the Shakespeare class; is that correct?

Douglas K. Mertz:

I believe the analysis would be the Tinker analysis in terms of substantial disruption of the lesson.

David H. Souter:

Well, would there be a substantial disruption?

Douglas K. Mertz:

It would all depend on the circumstances.

My guess is that if it were simply passively–

David H. Souter:

If the kids look around and they say, well, so and so has got his bong sign again–

[Laughter]

–they then return, they then return to MacBeth.

Does the… does the, does the teacher have to, does the school have to tolerate that sign in the Shakespeare class?

Douglas K. Mertz:

–I believe that in circumstances where it is a substantial distraction–

Ruth Bader Ginsburg:

Can’t it just say no signs when you’re supposed to be learning?

Douglas K. Mertz:

–Your Honor, I think the answer is yes if they had a content-neutral rule prohibiting signs in school.

I believe that would be–

John G. Roberts, Jr.:

But can’t the school decide that it’s part of its mission to try to prevent its student from engaging in drug use and so that it’s going to have a viewpoint on drug use and that viewpoint is going to be that it’s opposed to it and so that it takes a particular view with respect to signs that in their view seem to encourage drug use?

Douglas K. Mertz:

–Certainly it is within the school’s mission to discourage drug use.

Certainly it has many tools to allow it to get its own viewpoint… certainly it can… it does not need to provide a forum in the school itself for students with a contrary viewpoint.

But when a student is basically on his own time, whether it’s outside of school–

John G. Roberts, Jr.:

So your position would be different if this were in the student gym and they were having a discussion.

There was a program to discourage drug use and he held up his sign; you would say it would be all right to take down the sign inside the school gym?

Douglas K. Mertz:

–No, I’m not so sure.

John G. Roberts, Jr.:

So it doesn’t matter that this is outside.

It matters on the content of the sign, not the location?

Douglas K. Mertz:

Well, what matters is whether there is a substantial disruption of what the school is trying to achieve legitimately, whether it’s a classroom lesson or a lesson on drug use.

Antonin Scalia:

Well, but the school has… the school has a program, an anti-drug program that shows movies, it brings in policemen and social workers to preach against drug use and you’re saying that… never mind unfurling a banner.

You’re saying that it has to let students contradict this message it’s trying to teach, to walk around, you know, with a button that says “Smoke Pot, It’s Fun”.

Douglas K. Mertz:

I believe, Your Honor–

Antonin Scalia:

Does the school have to do that?

Douglas K. Mertz:

–I believe, Your Honor, that a nondisruptive pin, badge, whatever you want to call it, would have to be tolerated.

However, they would not have to tolerate a student who interrupts a anti-drug presentation.

Antonin Scalia:

But the school, even though it is trying to teach one point of view, can allow students to come in and undermine that point of view, assuming that it’s legitimate to teach that point of view?

It can allow students to come in and undermine what it’s trying to teach?

Douglas K. Mertz:

I think that–

Antonin Scalia:

And that is not disruption in your view?

Douglas K. Mertz:

–I think they cannot prevent presentation of a contrary viewpoint as long as it is done in such a way that it doesn’t interfere with the school’s own presentation of its viewpoint.

Anthony M. Kennedy:

Can the student be allowed to wear a button that says “Rape Is Fun”?

Douglas K. Mertz:

No, I don’t think so–

Anthony M. Kennedy:

Why?

Douglas K. Mertz:

–There is a distinction there.

Anthony M. Kennedy:

Why?

Douglas K. Mertz:

Because when you’re talking about hate speech, speech that advocates violence, then you’re in another category of speech.

There has been general recognition–

Antonin Scalia:

Nonviolent crimes are okay, it’s only violent crimes that you can’t, you can not promote, right?

Right?

Douglas K. Mertz:

–I think there is a–

Antonin Scalia:

“Extortion Is Profitable”, that’s okay?

Douglas K. Mertz:

–Well–

Antonin Scalia:

This is a very, very, with all respect, ridiculous line.

I mean, I can understand you’re saying you cannot promote things that are unlawful, but to say, oh, it’s only violent, where do you get that line from, only violent unlawful acts?

Douglas K. Mertz:

–No, I’m not saying only violent unlawful acts.

But this is a case where if you look at it in the context of what was going on in the State at the time, where there was an active public debate on marijuana policy, on marijuana for medical use, marijuana for personal use, so it’s–

John G. Roberts, Jr.:

So it’s a political… even assuming it’s a political issue, the question is whether the school has to say our classrooms, our field trips, our sponsored and supervised activities are a forum for that debate?

Douglas K. Mertz:

–I believe it does not have to if being a forum would disrupt the school’s own educational program and–

John G. Roberts, Jr.:

And disruption does not include undermining the message they want to send?

It has to be some type of physical disruption.

But undermining the message they want to send, they can’t make the judgment that that’s not allowed?

Douglas K. Mertz:

–Preventing a contrary viewpoint from being expressed, that we–

Stephen G. Breyer:

Yes, but you rephrased it that way, but what actually happened is the principal looks across the street, a 15-foot banner goes up at what’s supposed to be a school event with everybody together in a single place, and it says a joke, it makes a joke out of drug use.

The principal thinks of course adolescents and post-adolescents sometimes like to test limits, and if the kids go around having 15-foot banners making a joke out of drug use that really does make it a little tougher for me to convince the students at this school not to use drugs, and particularly putting up 15-foot banners.

I don’t know why everybody wants to get away from that because I think you would have had a very different case if in fact it had been a whisper or if it had been a serious effort to contest the drug laws.

It wasn’t either.

It was a joke.

It was a 15-foot banner.

Stephen G. Breyer:

We have the message plus the means plus the school event.

Now, what’s your response?

Douglas K. Mertz:

–My response, Your Honor, is that, first of all, a 14-foot banner.

Stephen G. Breyer:

That’s an excellent response, I think.

[Laughter]

Douglas K. Mertz:

That was just a preliminary.

In fact, what it was was a person displaying this banner in a quiet, passive manner that didn’t interfere with anybody’s observation.

Stephen G. Breyer:

I conceive that interference consists of it’s pretty hard to run a school where kids go around at public events publicly making a joke out of drugs.

That’s what his thought is.

Now, I don’t think he has to be able to read content discrimination, viewpoint discrimination, time-place.

He doesn’t know the law, the principal.

His job is to run the school.

And so I guess what I’m worried about is a rule that would… is on your side, a rule that takes your side; we’ll suddenly see people testing limits all over the place in the high schools.

But a rule that against your side may really limit people’s rights on free speech.

That’s what I’m struggling with.

Now, I want some help there and I’m worried about the principal.

Douglas K. Mertz:

I believe the answer is that the Tinker case as we understand it struck a very wise compromise between allowing school officials to have complete discretion to suppress student speech in order to maintain what they conceive of as their individual mission and the student’s right to speak in a nondisruptive manner.

The speaker… the Tinker case has stood the test of time for 40, almost 30 years and, although–

Antonin Scalia:

Well, you can say that, but the subsequent cases seem to me to try to cut back on it.

I mean, it stood the test of time in the sense that it hasn’t been overruled, but–

Douglas K. Mertz:

–There have been some narrow exceptions to it in subsequent cases, of course, the Frazier and the Kuhlmeier cases.

But the basic, the heart of it, the requirement that the school demonstrate that substantial disruption before it can engage in suppression of–

Antonin Scalia:

–I think we’re using disruption in two different senses here and we should probably separate the two.

One sense is disrupting the class so that whatever is being taught can’t be taught.

But you’re also using it in the sense of undermining a general message that the school is trying to get across: Obey the law, don’t use drugs, whatever.

Maybe we should have a different word for… the first is disruption.

Disruption is a, is a funny word for the second.

Let’s called it undermining instead.

Now, you think both of them, however, are bad and both of them can be a basis for suppressing the speech?

Douglas K. Mertz:

–If I understand your question correctly, the second of them might better be called allowing competing viewpoints.

Antonin Scalia:

So you think undermining is perfectly okay?

You would never consider undermining to be disruption and therefore bad?

Douglas K. Mertz:

I think undermining in the sense of preventing impeding the school from delivering its–

own message–

Antonin Scalia:

Okay, but only that.

Douglas K. Mertz:

–would be substantial disruption.

Antonin Scalia:

Right after a class on drugs, he can be standing there in the hall and say: This class was ridiculous, drugs are good for you, I use them all the time, I urge all of you.

That’s perfectly okay?

That’s not undermining?

Douglas K. Mertz:

I believe that is the kind of speech–

Antonin Scalia:

That’s not disruption?

Douglas K. Mertz:

–that we must tolerate no matter how unwise it is.

Ruth Bader Ginsburg:

But couldn’t the school, couldn’t the school board have a time, place, or manner regulation that says you’re not going to use the halls to proselytizer for your cause, whatever it may be?

Douglas K. Mertz:

I believe that’s correct.

Ruth Bader Ginsburg:

You could have reasonable rules of decorum for what goes on inside the school building.

Douglas K. Mertz:

Right.

John G. Roberts, Jr.:

Does the school have to be completely neutral in that respect?

Does it have to punish who says that was a good program, I’m not going to use drugs, and you shouldn’t either, because he’s taking position on a public issue?

Douglas K. Mertz:

I think a content neutral, content neutrality is critical here, and if the school wants to allow anti-drug comments, messages, then it has an outside of the official forum–

John G. Roberts, Jr.:

Where does that notion that our schools have to be content neutral… I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs.

They have to be neutral on whether you should use drugs or not?

Douglas K. Mertz:

–Content neutrality goes to what speech is suppressed or punished.

As far as the school delivering its own message, there is no requirement of equal time or that it be neutral.

It’s got its own viewpoint in the case of drugs, a viewpoint that almost all of us agree with, and it should be able to espouse–

Antonin Scalia:

A school isn’t an open forum.

A school isn’t there for everybody to teach the students whatever he wants.

It’s there for the teachers to instruct.

And you’re turning it into an open forum.

If the school says, addresses one issue, everybody else has to be able to address that issue.

Douglas K. Mertz:

–I don’t believe that’s the case at all, Your Honor.

Antonin Scalia:

That’s not my vision of what a school is.

Douglas K. Mertz:

In the classroom delivering the prescribed messages, in the school assemblies, when the school wishes to present a particular message, that’s one case.

However, in the lunchroom, outside in recess, across the street, that is a quintessentially open forum where it would not be proper, I think, to tell students you may not mention this subject, you may not take this position.

Anthony M. Kennedy:

But do you concede that there was some right of school control for what was going on across the street?

Douglas K. Mertz:

No.

Actually our primary position on that is that he was in a public place at a public event among public people–

Anthony M. Kennedy:

If kids were throwing bottles and injuring passers by, the principal had no right or duty to go over there and stop it?

Douglas K. Mertz:

–Oh, I think if they were engaging in an act of hooliganism–

Anthony M. Kennedy:

Well, that’s because the school has a right of control.

Douglas K. Mertz:

–There is a distinction here.

This young man had not been in school today, had not been an campus, was not in any class that was released to–

John G. Roberts, Jr.:

Why did he go where he went?

Douglas K. Mertz:

–Pardon?

John G. Roberts, Jr.:

Why did he choose that location to unfurl his banner?

Douglas K. Mertz:

He explained because it was the only place where he actually knew the route of the relay.

Stephen G. Breyer:

But I mean, that’s… I have, I guess his note, you accept this with what the teacher said.

The entire class went to view the relay.

Individual students… this is at 9:30 in the morning.

They were not given the option of remaining in class, nor were they released to do as they pleased.

They were to watch the relay with the rest of the student body, either just in front of the school or just across the street… that’s me, not them… and then return directly to their classrooms, which I guess the school did.

So it sounds like you’re going to one place, stand together, behave yourselves, watch the relay, and the teachers will be there and take you back to class.

Now is there something else in the record that suggests something different?

Douglas K. Mertz:

There is a major dispute on that point, Your Honor.

We presented several affidavits that showed individual teachers–

Stephen G. Breyer:

Just tell me where to look.

Where are the conflicting affidavits?

I’m just reading from page 51 of the joint appendix.

I didn’t know there was a dispute.

Douglas K. Mertz:

–It would be on pages 32, 34, 36.

Stephen G. Breyer:

Okay, I’ll look at those.

Stephen G. Breyer:

Another somewhat minor point.

Can I ask you another point about the record?

I’ll read those.

Douglas K. Mertz:

Okay.

Can I finish the description of what actually happened?

According to the students, for those who were released from class, there was no requirement for staying on campus, and many of them did not stay on campus.

No requirement for–

Stephen G. Breyer:

No, they went across the street.

Douglas K. Mertz:

–Some of them did.

Some went down–

Stephen G. Breyer:

Was there any… there was no requirement, they didn’t have to go across the street or stay on campus, they could wander off distantly.

Douglas K. Mertz:

–They could, and many of them did.

Stephen G. Breyer:

Okay.

Douglas K. Mertz:

And there was no requirement that they stay together, no requirement that they do anything in particular.

They–

Antonin Scalia:

I had to watch… not even watch the parade, no requirement they watch the parade?

They were released in order to watch the parade.

Douglas K. Mertz:

–That was the intent, obviously, for those released.

Antonin Scalia:

The intent, it was the direction.

Douglas K. Mertz:

But–

Antonin Scalia:

It was not only the intent, it was the direction.

Douglas K. Mertz:

–Actually it was not.

According to these student affidavits, they were simply released and said, you can go watch–

Ruth Bader Ginsburg:

Was there any fact finding on that?

You referred to affidavits.

Douglas K. Mertz:

–No.

It was decided on cross motions for summary judgment in the district court, and there were no findings, actually no factual findings at all, and certainly nothing on that particular point.

Stephen G. Breyer:

Can I ask you another record point, just so I know where to look?

Douglas K. Mertz:

Yes.

Stephen G. Breyer:

You’ve also asked for an injunction that would require expunging his 5-day suspension from his record.

Douglas K. Mertz:

Correct.

Stephen G. Breyer:

10 days.

Well, 10 or 5, unclear.

I noticed the superintendent of schools on page 66A when he’s reviewing this, what he says is,

“Joseph contends that all his behavior is excusable because he was exercising his free of speech right. “

“Even if I were to concede his speech across from the high school is protected, which I do not, the rest of his behavior warranted the suspension. “

And then he says,

“And I’m cutting it from 10 days to 5. “

“So given that, if you win, suppose you were to win, and you… that it is protected and so forth… then would you concede or not concede the suspension, the 5 days, it’s over, it still stands, I don’t care about the expungement or not? “

Douglas K. Mertz:

The… whether it remains on the record, anything that remains on his record is obviously much more–

Stephen G. Breyer:

No, but I’m asking that you think about it.

I’m putting you on the spot.

Douglas K. Mertz:

–In that case, I missed the point of your–

Stephen G. Breyer:

I want to know what the superintendent said.

As I read it is, he says, look, I don’t care if this was protected or not.

I’ll give you that.

It’s protected.

But the rest of his behavior, the way he treated the principal, what he did, the reluctance, et cetera, et cetera, that warrants a suspension too, and I’m cutting it from 10 days to 5.

So it sounds to me as I read it that the teacher is saying even if you’re right, he’s still suspended for 5 days.

That’s what the superintendent says.

Now suppose you win your point that you’re interested in winning, which you may not or you may.

Are you still then going to pursue this case on the 5 days, that that should be erased?

Douglas K. Mertz:

–If the only thing left were discipline because he was tardy that day, was… didn’t divulge the names of the other people holding the banner, that sort of thing, we couldn’t–

John G. Roberts, Jr.:

I think it’s–

Stephen G. Breyer:

You couldn’t what?

I didn’t hear the last part of what you said.

You just got to the point of–

Douglas K. Mertz:

–Of answering the question.

Stephen G. Breyer:

–Yes.

What’s the answer?

Douglas K. Mertz:

Those things wouldn’t manner anymore.

Stephen G. Breyer:

So you would not pursue it?

Douglas K. Mertz:

Correct.

John G. Roberts, Jr.:

–Can we get back… I’m sorry.

Antonin Scalia:

Go ahead.

John G. Roberts, Jr.:

Can we get back to what the case is about.

You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it’s disruptive.

But then under Frazier I can do something if it interferes with the basic mission, and under Kuhlmeier I’ve got this other thing.

So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it.

Douglas K. Mertz:

Mr. Chief Justice, there are two different time points we have to talk about.

There’s the heat of the moment out there on the street, but then later back in the office when she actually decided to levy the punishment after she had talked to him, after she heard why he did it and why he didn’t do it, after she had had a chance to consult with the school district’s counsel.

At that point in the calmness of her office, then she should indeed have known it.

And she did testify that she had taken a master’s degree course in school law in which she studied Kuhlmeier and Frazier and Tinker.

So–

John G. Roberts, Jr.:

And so it should be perfectly clear to her exactly what she could and couldn’t do.

Douglas K. Mertz:

–Yes.

Antonin Scalia:

As it is to us, right?

[Laughter]

David H. Souter:

I mean, we have had a debate here for going on 50 minutes about what Tinker means, about the proper characterization of the behavior, the nonspeech behavior.

The school’s terms in dealing with the kids that morning.

The meaning of the, of the statement.

We’ve been debating this in this courtroom for going on an hour, and it seems to me however you come out, there is reasonable debate.

Should the teacher have known, even in the, in the calm deliberative atmosphere of the school later, what the correct answer is?

Douglas K. Mertz:

We believe at the very least she should have known that one cannot punish a nondisruptive holding of a sign because it said something you disagreed with.

Anthony M. Kennedy:

Of course I disagree with the characterization on disruptive.

It was completely disruptive of the message, of the theme that the school wanted to promote.

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.

Douglas K. Mertz:

Well, they weren’t sponsoring the Olympics, they weren’t even sponsoring this event actually.

They simply let the students out to watch it.

Douglas K. Mertz:

That was–

Anthony M. Kennedy:

Some of the students were carrying the torch and the band was playing in the parade.

Douglas K. Mertz:

–A few of the student… a few of the relay runners were from the school and had been allowed to skip school because of that, and the pep band played as it went by.

I do not believe that made the torch relay a school event.

The best that can be said for them is that they let the students watch it with the concurrence of individual teachers, and that that attendance was a school sanctioned attendance.

Now whether that allows them to then engage in this kind of punishment for speech by a student who was not even among those released, who is standing–

Ruth Bader Ginsburg:

Now you said that in your brief, and I couldn’t understand that somehow you got mileage out of his being truant that morning.

Would the case have come out differently, would you be making any different argument if he got to school on time and was released with the rest of them?

Does the case turn on the fact that he was late to school that day?

Douglas K. Mertz:

–We believe it would be a closer question, but the fact that he was not there in school today, and intentionally was not there today, turns this into a pure free speech case where you have a citizen in a public place in a public event who was not acting as a student.

Ruth Bader Ginsburg:

So he’s not a school child, he would be playing hooky?

Douglas K. Mertz:

Because he was playing hooky because he chose not to be there, because he was not part of the class.

Ruth Bader Ginsburg:

Even though the law required him to be there?

Douglas K. Mertz:

That’s right.

Antonin Scalia:

He wasn’t playing hooky.

He showed up late, that’s all, right?

I mean, he actually came and joined his classmates at an event that he knew was an event that the school told the classes to go to.

Douglas K. Mertz:

He joined–

Antonin Scalia:

As far as I’m concerned, he just showed up late.

Douglas K. Mertz:

–He joined a public crowd on a private side… public sidewalk in front of private homes.

The crowd happened to have some other students in that school there.

Ruth Bader Ginsburg:

Where did he go immediately after?

He went to the school building for whatever it was, the third period of the day.

Douglas K. Mertz:

Yes.

The principal instructed him to do so and he did.

Anthony M. Kennedy:

So under your view, if the principal sees something wrong in the crowd across the street, had to come up and say now, how many here are truants and how many here are… I can’t discipline you because you’re a truant, you can go ahead and throw the–

bottle.

[Laughter]

Douglas K. Mertz:

No, I don’t think she needs to do that in the heat of the moment.

But later on once she’s discovered the true facts, then at that point I think she loses a basis for punishing him as a student if he was not there as a student.

Antonin Scalia:

Because you’re both a truant and disrupter, you get off.

[Laughter]

Had you been just a disrupter, tough luck.

Douglas K. Mertz:

Well, it may well be that he could have been punished for being truant, but of course that’s not why we’re here.

He was punished for displaying, for the content of the sign he was displaying in a public place as a private citizen.

Antonin Scalia:

Who were the people that helped him hold up his flag?

Were they not classmates of his?

Douglas K. Mertz:

Most of them were classmates; at least one was not a student.

Antonin Scalia:

Did he not know that these classmates were there at a public event that was sponsored, not sponsored, but to which the school had–

directed the students to go?

Douglas K. Mertz:

I’m sure he did know.

Antonin Scalia:

So it seems to me it’s like joining a school trip at the zoo, you know.

You… you don’t make it to the… to the school, but you drive there yourself and then join the class as it’s going through the zoo.

It seems to me he’s in school.

Douglas K. Mertz:

A better analogy might be if he had gone on his own time to the zoo and was engaging in some expressive act, and there happened to be a school group there at the same time, could the teacher with that group then have disciplined him for what he was doing?

John G. Roberts, Jr.:

That gets back to the point I was trying to make earlier.

He came here because it was the school event, the school sponsored activity.

He could have gone anywhere along the route.

He knew that it was coming by the school, he knew that they were going to be, the students were going to be released to see it.

He went to join up with the school even if he were truant that day.

Douglas K. Mertz:

No, Your Honor.

I believe that’s incorrect.

There is nothing in the record that even suggests that he went there in order to join up with schoolmates or in order to be near the school.

He says, in fact, he intentionally tried to avoid the school because he thought that that way he could avoid the school jurisdiction for his–

Antonin Scalia:

You think he could have been marked absent for the whole day because he didn’t intend to be part of the school group afterwards?

I mean, suppose there’s a suspension of so much for half a day truancy, and so much more for a whole day’s truancy.

And he shows up and he says, oh, you can’t… you have to hold me for a whole day’s truancy because I didn’t intend to be in school.

I was in school but I didn’t intend to be there.

Douglas K. Mertz:

–I think it would all depend on whether he–

Antonin Scalia:

That doesn’t make any sense to me.

Antonin Scalia:

Does it depend on his intent, whether or not he intended to be a truant that afternoon?

Douglas K. Mertz:

–I think that would depend on the fact of whether he was a truant that afternoon.

Antonin Scalia:

He was either in school or he wasn’t in school.

Douglas K. Mertz:

In the morning he wasn’t in school.

Antonin Scalia:

In the afternoon he either was or he wasn’t.

Douglas K. Mertz:

In the afternoon he was.

Antonin Scalia:

And the question is whether joining the school group, intentionally joining the school group, going there because the school group was there, whether that places him in school.

Douglas K. Mertz:

As a hypothetical, if he were intentionally joining a school group, I would have to say that puts him within whatever jurisdiction the school has.

Stephen G. Breyer:

Why does it matter?

That is, why doesn’t the… you’re suing the teacher or the principal and why wouldn’t the issue be what that principal really reasonably thought the situation was?

I mean, if a principal reasonably thought he was part of the school group, if the principal reasonably thought that this was a school outing, if the principal reasonably thought that students are staying together, why wouldn’t that just be the ground on which you’d take the case, we should take it that way, because the principal reasonably thinks?

Douglas K. Mertz:

As far as qualified immunity, I think that’s correct, if she had a reasonable belief.

Stephen G. Breyer:

But even on the merits?

Douglas K. Mertz:

On the merits I don’t think so, because if he was not in fact there as part of a school group–

Stephen G. Breyer:

Even if the principal couldn’t tell him to take down the manner even if she thought he was part of the school group reasonably, if he really wasn’t?

Douglas K. Mertz:

–I do not believe there’s anything in the law that allows a principal to convert a pure free speech exercise into a school exercise because it’s–

Antonin Scalia:

I thought you were going to appeal to the calm of her office the next day.

I thought that was going to be your answer to my question.

Whatever she thought at the time, she didn’t think it later.

Ruth Bader Ginsburg:

May I ask to you clarify one thing.

I initiated this line of questioning when I said I was surprised that your brief made such a big deal that he was late to school.

You would still be making the argument about the free speech right if he had diligently showed up for his math class first period in the morning, gone out with the others, and had his banner to unfurl when the torch came by?

Douglas K. Mertz:

–That is correct.

We have two independent bases for defending him here.

One is the pure free speech in a public place argument.

That’s the one that hinges on the fact that he was not among the released students.

The other argument, which we believe in equally, is that even if it were a on-campus or on an extension of campus like a field trip, then under Tinker because it was not disruptive they cannot punish it.

My time is up.

I thank the Court.

John G. Roberts, Jr.:

Thank you, Mr. Mertz.

John G. Roberts, Jr.:

Mr. Starr, you have a minute remaining.

Kenneth W. Starr:

For the reasons that have been discussed, under no circumstances should Deborah Morse, a conscientious principal, be subjected to the possibility of punitive damages or compensatory damages.

A very brief factual point.

In light of the richness of the discussion with respect to the facts, I would guide the Court to page 109 of the joint appendix.

This is Deborah Morse’s interrogatory answer and there she sets forth the facts, and that bleeds into the law.

To promote drugs… and this is our fundamental suggestion and submission.

To promote drugs is utterly inconsistent with the basic educational mission of the school, and for this Court to suggest to the contrary would really be quite inconsistent with much of its drug jurisprudence, Bernonia and Earls.

The opinion of the Court in Earls 2002 is especially powerful with respect to the scourge of drugs and their dangers.

More broadly, the Court does not need to go more broadly, but the Court has spoken more broadly with respect to the need to defer to school officials in identifying the educational mission.

But we know that there are in fact constitutional limits.

Those limits are captured in Tinker.

A passive pure political speech that reflects on the part of the school board a standardless discretionary effort to squelch any kind of controversial discussion, that casts a pall of orthodoxy over the classroom.

We are light years away from that.

I thank the Court.

John G. Roberts, Jr.:

Thank you counsel, the case is submitted.