A Stitch in Haste

Rumor has it that Ken Starr, who is -- yet again -- mouthpiecing against liberty, this time at Supreme Court oral arguments in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case), dismissed the Ninth Circuit Court of Appeals decision upholding the students' First Amendment rights as "unforgivingly libertarian." (His brief used the term "uncompromisingly libertarian vision.")

May I never, ever, be forgiven by Ken Starr. For anything.

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I haven't blogged about Morse v. Frederick, mainly because it is such a sloppy case, both in terms of the facts of the incident and the politics surrounding it. To (utterly apolitical) me, it seems quite simple really: The only clearly recognized exception to a student's right to free speech is if such speech disrupts the educational environment that is the raison d'être of a school in the first place. Compare Tinker v. Des Moines, 393 U.S. 503 (1969) (students have a First Amendment right to wear black armbands to protest the Vietnam War) with Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) (school district permissibly sanctioned a student for a disruptive, sexually explicit speech at a school assembly).

The banner was not even on school grounds, let alone "disruptive to the educational mission." So why is this even a case, other than the fact that this particular school principal and this particular student had a history of animosity, and the "barbaric yawp" (not my term) of the banner message itself.

It is neither illegal not improper to advocate the repeal of a law -- see generally, "Prohibition." One wonders what would have been the school principal's reaction had the year been 2002 (i.e., before Lawrence v. Texas) and the banner had read "Butt Sex 4 Jesus." At least there the school might have had an obscenity argument within the ambit of Bethel. But "Bong Hits 4 Jesus"? I ask again: Why is this even a case?

I guess I'm just too unforgivingly libertarian to understand all the fuss.

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A good primer on Morse v. Frederick at SCOTUSblog.

Heard about the "Tigger Socks" case?

Toni Kay Scott, 14, was sent to an in-school suspension program called Students With Attitude Problems last year for violating a dress code, according to a lawsuit against the Napa Valley Unified School District and Redwood Middle School.

She had donned socks with the Tigger character from the Winnie the Pooh cartoons on them, along with a denim skirt and a brown shirt with a pink border.

But the school's policy requires students to wear clothes with solid colors in blue, white, green, yellow, khaki, gray, brown and black. Permitted fabrics are cotton twill, corduroy and chino. No denim is allowed.

The lawsuit, filed Monday in Napa County Superior Court by The American Civil Liberties Union and a law firm on the girl's behalf, alleges that the dress code is unconstitutionally vague and too restrictive.

Granted, this teenager has clashed with administrators over the dress code before. Nevertheless, if I were a parent I'd be pretty happy if the worst "attitude problem" that my 14-year old daughter had was insisting on wearing Tigger socks.

As for the law and lawsuit: I'm a great believer in striking down laws that are unconstitutionally vague, but I don't see that here. If anything, the dress code isn't vague enough — it apparently doesn't even accommodate the most de minimis exceptions, such as socks.

On the "too restrictive" front: It seems to me that if a student has a right — and she does — to wear a black armband, then she must also have a right to wear whatever socks she likes — so long as such socks do not "undermine the school's basic educational mission" — anyone care to argue that Tigger "undermines" anything?

I also wonder whether this is a good fact pattern to revisit the notion of — dare I say it? — "rational basis with bite." Let's assume for the moment that this were not even a First Amendment case (is wearing socks "expressive conduct?"). The dress code would still have to satisfy "mere rationality" — the school must demonstrate that the dress code, this specific code, is rationally related to a legitimate government interest.

Fine. Let's start by assuming that "preventing gang violence" is indeed a legitimate government interest. How is "no stripes" or "these eight colors only" or "these four fabrics only" or "no cartoon characters" rationally related to that government interest — or any other? Of course it isn't.

If the school has a particularized reason to believe that a particular garment or color has become a gang symbol, then perhaps — perhaps — they could ban it on school grounds. If skimpy beach wear can be shown to be detrimental to the classroom environment, then perhaps — perhaps — the school should be allowed to ban it.

But banning Tigger socks? That's a long way from rational.

I love the First Amendment, but I also yearn for a return to meaningful rational basis review and would love to see a judge simply strike down the ban as just plain irrational.

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Speaking of irrational: U.K. headmaster bans student neckties as a safety hazard. So a Tigger tie would be a double penalty?

Here are my hasty stitches on today's ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case).

--Best as I can tell after a quick skim, the majority opinion and concurrences completely ignore the pesky little fact that Frederick was over 18 at the time of the incident. Therefore, any portion of the decision or concurrences that rely on Tinker's* (or any other case's) distinction between the rights of students and the rights of adults is per se invalid as applied to Frederick, who was an adult at the time. The facts that Frederick skipped school that day and that the event was off school grounds only exacerbate the absurdity of Chief Justice Roberts' reasoning. (UPDATE: Thomas dismisses this pesky fact as "inconsequential" in a footnote.)

--The gist of Roberts' opinion seems to be that "fighting drug use" is a sufficiently compelling governmental interest to censor free speech (again, of an adult student not in attendance at the time, off school grounds and displaying what could possibly be deemed a political message). If that (terrifying) assertion is the case, then it is certainly also the case that, when the issue of ubiquitous random drug testing of students finally reaches the Supreme Court, it will scrap the whole Vernonia**/Earls*** paradigm requiring at least some pretense of a special need (e.g., "athletes on drugs get injured, so we must test athletes") and simply allow unlimited suspicionless drug testing of students in any and all situations. If the drug war, to this Court, trumps the First Amendment, then surely it also trumps the Fourth Amendment. It's a slam dunk.

--Alito's concurrence, meanwhile, posits that no reasonable person could infer a political statement behind the term "Bong Hits 4 Jesus." That's a mighty bold pronouncement — and not one that suggests a philosophy of judicial restraint (as in "the opposite of judicial activism").

--Be sure to read Thomas' concurrence, which argues that students (again, apparently including adult students) have no First Amendment rights, period. Never, no way, no how. Remind me again why libertarians like him?

The case is Morse v. Frederick, No. 06-278 (June 25, 2007) (PDF - 60 pages).

More thoughts at Zero Boss, SCOTUSblog, Quizlaw.

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*Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)
**Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)
***Board of Education of Pottawatomie County v. Earls, 536 U.S. 822 (2002)

Or is it?


(Via Abuse of Discretion.)

That didn't take long:

As in Morse, the student in the pending case was not disciplined for conduct that was merely "offensive," or merely in conflict with some view of the school's "educational mission."

That is one of three favorable, and invalid, citations in the "pending case" to Morse v. Frederick, No. 06-278 (June 25, 2007) (a/k/a the "Bong Hits 4 Jesus" case).

The "pending case" was as follows:

This case arose out of an Internet transmission by an eighth-grader at Weedsport Middle School, in the Weedsport Central School District in upstate New York. In April 2001, the pupil, Aaron Wisniewski ("Aaron"), was using AOL Instant Messaging ("IM") software on his parents' home computer.
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Aaron's IM icon was a small drawing of a pistol firing a bullet at a person's head, above which were dots representing splattered blood. Beneath the drawing appeared the words "Kill Mr. VanderMolen." Philip VanderMolen was Aaron's English teacher at the time.
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The icon was not sent to VanderMolen or any other school official.

More importantly, the IM exchanges took place entirely off school grounds -- a pesky fact also insolently ignored by the Morse majority.

More importantly, this appellate court seems to have completely blanked out the all-important point that Morse's carve-out of First Amendment rights for students applies only in the context of advocating illegal drug use. The decision is totally unambiguous on this. That was the whole hook upon which Chief Justice Roberts hung his "No Rights 4 You" reasoning.

And while advocating violence is certainly no more "political" than advocating illegal drug use, the fact remains: If it's not about drugs, then Morse is inapposite. (Incidentally, all parties in the IM case essentially agreed that the icon was a crude and offensive joke, not a bona fide threat.)

If a minor commits an offense on school grounds, then the school should be permitted to discipline him accordingly. If he commits an offense off school grounds, however, then the school should have no jurisdiction at all, and should instead yield to law enforcement. Tinker's "schoolhouse gate" should swing both ways.

The case is Wisniewski v. Bd. of Ed. of Weedsport Central School Dist., No. 06-3394-cv (2nd Cir., July 5, 2007) (PDF - 16 pages). (Via How Appealing; see also DODT.)

To review: Ever since the Supreme Court's landmark decision in Tinker v. Des Moines, 393 U.S. 503 (1969), the broad question regarding students' constitutional liberties has been which rights they do and do not bring "past the schoolhouse gate."

Now, however, we are seeing not only an increasing presumption that the answer is "few or none" (supposed quasi-libertarian Clarence Thomas is adamant that the answer is "less than none"), but also a new, increasingly frequent encroachment by school officials before the schoolhouse gate -- the belief that students' liberties may be curtailed, and their conduct punished, for actions off school grounds and beyond the "educational environment."

The apex of this arrogant educratic presumptuousness was of course the recent decision in Morse v. Frederick, No. 06-278 (2007), which held that an adult student, not enrolled in school that day and not on school grounds, could be punished for engaging in expressive conduct on a public street. The mind reels.

But one should not let Morse eclipse another, more frequent manifestation of this new theory of abridging rights "before the schoolhouse gate" --

A Burlington [Connecticut] teenager has sued two top school officials, saying they violated her constitutional rights by removing her as class secretary because she used offensive slang to refer to administrators on an Internet blog.
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[The principal] removed Doninger as the class of 2008 secretary and banned her from running for re-election after discovering the teen called unnamed school administrators "douchbags" (sic) on an online journal.

Avery Doninger posted the message to www.livejournal.com, which is not associated with the school, from a home computer.
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While Doninger apologized and reported the incident to her mother, she refused to resign. Niehoff then "administratively removed" her from the post, the lawsuit states.
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[The principal said] last May that school leadership positions are a privilege, not a right.

The "rights versus privileges" distinction is an extra-constitutional canard often used (and abused) by government officials post facto to obscure the question of whether their actions were rational or arbitrary.

It's quite simple really: When a law-abiding person is penalized for lawful conduct merely because some public officeholder is offended by it, that's a constitutional violation; "rights versus privileges" has nothing to do with it. When the lawful conduct is speech, then the constitutional violation is even more egregious and damnable.

A thin-skinned wimp who can't take being called a "douchbag" [sic] every so often has no business being a principal in the first place. Neither does a jackboot who refuses to acknowledge that her authority does not extend "past the schoolhouse gate."

Some scary stories from here and there.

ITEM: Inadequately trained police in Lawrenceville, Georgia, took it upon themselves to seize a truck adorned with graphic abortion-related images, and arrest its driver, under a "vulgarity" law that is almost certainly facially unconstitutional on vagueness grounds. Operation Rescue, which owns the truck, is (quite rightly) considering suing the police for violation of constitutional rights.

ITEM: Inadequately trained police in Madison, Wisconsin, arrested a high school chemistry teacher over his anonymous comment on a blog:

[James] Buss, a former president of the teacher's union, allegedly wrote that teacher salaries made him sick because they are lazy and work only five hours a day. He praised the teen gunmen who killed 12 students and a teacher before committing suicide in the April 1999 attack at Columbine High School. "They knew how to deal with the overpaid teacher union thugs. One shot at a time!" he wrote, adding they should be remembered as heroes.

It is generally believed that the comment (posted at a conservative website) was sarcastic. Released from jail after only one hour, Buss still faces disciplinary action by the school district and charges for "disorderly conduct and unlawful use of computerized communication systems." Unlawful — how? The test for whether the First Amendment protects such speech is "imminent lawlessness."* Does that comment sound imminently lawless? The ACLU of Wisconsin has suggested (quite rightly) that "it's pretty clear it would be a mistake to charge." (LATE UPDATE: The prosescutor agrees and has dropped the case.)

ITEM: Speaking of blogs, inadequately trained officials of Manalaplan, New Jersey have filed a frivolous subpoena on Google seeking the identity of a pseudonymous Blogspot blogger, as well as "any emails, blog drafts, and other information Google has about the blogger." The town (i.e., its politicians and bureaucrats) suspects that a defendant the town is suing for malpractice is the blogger in question. Which invites the deeply profound First Amendment question, "So what?"

"Bloggers, as well as everyone else, have a First Amendment right to speak anonymously," said [Electronic Frontier Foundation ] Staff Attorney Matt Zimmerman. "Litigants don't get a blank check to pry into the private lives of critics when they say things the litigants don't like. The fact that it is the government trying to abuse the discovery process makes this attempted invasion of privacy all the more repugnant."

Quite rightly put. More details here.

ITEM: Remember Morse v. Frederick**, (a/k/a the "Bong Hits 4 Jesus" case)? Remember how its plurality opinion, and Justice Alito's concurrence, both specifically and explicitly limited the holding — that students' First Amendment rights could be forfeited, even off the school grounds, if the speech was clearly disruptive to the school's educational mission — to the context of advocating illegal drug use?

Well, some inadequately trained appellate judges don't seem to remember it very well, at least not that last "illegal drug use" part:

Enrique Ponce, kept a diary in which he described creating a pseudo-Nazi group, committing several incidents of violence against homosexual and minority students and planning Columbine-type shootings at several schools. The plan, according to the diary, would be carried out on a graduation day several years later.

The sophomore described the notebook to another student, who reported it to a teacher. The sophomore eventually was questioned by an assistant principal and said the notebook was a work of fiction. The sophomore's mother, citing her own creative writing experience, also maintained the notebook was fiction.

The assistant principal was not persuaded and determined that the sophomore posed a "terroristic threat" to other students. He suspended the student for three days and recommended he be placed in the school's alternative education program. The assistant principal also reported the notebook to the El Paso Police Department, which arrested the student. After reviewing the case, however, prosecutors declined to press charges.

There's that pesky "imminent lawlessness" test again.

Cut to the chase:

On appeal, the unanimous three-judge panel of the 5th Circuit reversed the district court, saying it was "follow(ing) the lead" of the Court in Morse. As the appeals court interpreted Morse — and in particular Justice Alito's concurrence — the substantial-disruption test of Tinker[‡] does not apply if the speech at issue "potentially foments" harm to students. Indeed, the appeals court held, such speech falls entirely outside the protection of the First Amendment.

So, extending Morse in a way it was expressly not to be extended, school administrators may now replace "imminent lawlessness" or even "substantial disruption" with "potentially foments harm." Stated differently, students now have essentially no First Amendment rights, on either side of the schoolhouse gate, whenever the word "harm" can be invoked by an educator — whether credibly or not, plausibly or not, reasonably or not, urgently or not.

The case is Ponce v. Socorro Independent School Dist., No. 06-50709 (5th. Cir., November 20, 2007). (PDF - 12 pages). Related post here.

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*Brandenburg v. Ohio, 395 U.S. 444 (1969).

**No. 06-278 (June 25, 2007).

‡Tinker v. Des Moines, 393 U.S. 503 (1969)

Now available — the Stitch in Haste Podcast!

The idea will be to record a quick commentary, no more than weekly (and typically less than weekly) and never longer than 20 minutes, either about something I don't feel like covering in a full-blown blogpost, or something that I have already covered in the blog and don't feel like revisiting. Eventually I might include responses to comments, interviews, roundtable discussions, etc.*

Still undergoing some technological refinements (e.g., the noise filter didn't work very well this time). Please be patient.

Episode #001:

A discussion of the student free speech case Doninger v. Niehoff and what role Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus case") should — or should not — play in deciding it. (Background on the Doninger appeal here; my previous post on it here.)

Listen here, at the podcast page or subscribe via iTunes.

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*Oh that a man's reach should exceed his grasp, or what's the Internet for?"
--Robert Browning (sorta kinda)

The latest round in the "Be Happy, Not Gay" t-shirt wars —

"Be Happy, Not Gay" is only tepidly negative; "derogatory" or "demeaning" seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says "Be Happy, Not Gay" would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere.

"As one would expect"? Why should anyone ever expect a single "incident of harassment of homosexual students"? And I suppose the killing of Lawrence King was also "highly speculative" and "only tepidly negative."

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The framework that Judge Posner lays out for analyzing this case is actually quite reasonable:

Taking the case law as a whole we don't think a school is required to prove that unless the speech at issue is forbidden serious consequences will in fact ensue. That could rarely be proved.
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But what is "substantial disruption"? Must it amount to "disorder or disturbance"? Must classwork be disrupted and if so how severely? We know from Morse* that the Supreme Court will let a school ban speech — even speech outside the school premises — that encourages the use of illegal drugs, without the school's having to prove a causal relation between the speech and drug use. We know too that avoiding violence, if that is what "disorder or disturbance" connotes, is not a school's only substantial concern. Violence was not the issue in Morse, or in Fraser**, the lewd-speech case. In fact one of the concerns expressed by the Supreme Court in Morse was with the psychological effects of drugs. Imagine the psychological effects if the plaintiff wore a T-shirt on which was written "blacks have lower IQs than whites" or "a woman's place is in the home."

The whole point of the Day of Silence is that anti-gay bigotry often, perhaps usually, results not in "disorder or disturbance" but in intimidation. Intimidation that disrupts the school environment for them. Gay students insulted, teased, taunted or harassed (or worse) often suffer in silence.

From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption — the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test.

That should have been the end of the opinion and of the "Be Happy, Not Gay" t-shirt.

But alas, this is Richard Posner and these are gays who are being targeted, so of course there is going to be an "on the other hand" —

The expression "Be Happy, Not Gay" is a play on words, since "gay" used to be an approximate synonym for "happy" but now has been appropriated to designate homosexual orientation. One cannot even be certain that it is a "derogatory" comment; for "not gay" is a synonym for "straight," yet the school has told us that it would not object to a T-shirt that said "Be Happy, Be Straight." It wouldn't object because to advocate X is not necessarily to disparage Y. If you say "drink Pepsi" you may be showing your preference for Pepsi over Coke, but you are not necessarily deriding Coke. It would be odd to call "Be Happy, Drink Pepsi" a derogatory comment about Coke.

Bigoted antipathy toward gays is comparable to preferring Pepsi over Coke? Posner himself can't help but acknowledge the sheer idiocy of such an analogy and promptly abandons it. Still, two paragraphs later, we get the hopelessly-disconnected-from-reality "tepidly negative" passage at the top of this post.

The controlling case for this fact pattern is clearly Fraser, which — while crafted in the context of lewd and offensive speech — set a straightforward, robust test for curtailing student speech on school grounds:

In upholding the students' right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker***, this Court was careful to note that the case did "not concern speech or action that intrudes upon the work of the schools or the rights of other students."

Posner, somehow, actually cites Fraser as a counterargument against the school banning the bigot-shirts: since "Be Happy, Not Gay" is not lewd speech, Fraser must not apply. How convenient.

The case is Nuxoll v. Indian Prairie School District #204, No. 08-1050 (7th Cir., April 23, 2008) (PDF - 20 pages). More thoughts at Decision of the Day, Good As You.

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The Day of Silence, incidentally, is tomorrow.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)
**Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
***Tinker v. Des Moines School Dist., 393 U.S. 503 (1969)

A quick addendum to my last post on Judge Posner's bizarre, sad -- and wrong -- opinion today in the "Be Happy, Not Gay" t-shirt case, Nuxoll v. Indian Prairie School District #204:

The plaintiff calls Justice Alito's concurrence the "controlling" opinion in Morse* because Justices Alito and Kennedy were part of a five-Justice majority, so that their votes were crucial to the decision. But they joined the majority opinion, not just the decision, and by doing so they made it a majority opinion and not merely, as the plaintiff believes (as does the Fifth Circuit), a plurality opinion.

Lawyers' quibbles. As I explained in the first Stitch in Haste Podcast, it doesn't really matter whether one calls Chief Justice Roberts' ruling in Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case) a "majority opinion" or a "plurality opinion." What matters is that Justice Alito made it unambiguously clear in his concurrence that Morse was not to be extended to any fact pattern other than purely apolitical speech advocating illegal drug use. Any extension of Morse to such fact patterns -- including "Be Happy, Not Gay" t-shirts -- is plain error.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)