HIGH COURT TAKES UP 'BONG HITS'

WASHINGTON -- Kenneth W. Starr had a strategy for convincing the
Supreme Court that an Alaska high school principal and school board
did not violate a student's free-speech rights by punishing him for
displaying the words "Bong Hits 4 Jesus" on a 14-foot-long banner
across the street from school as the 2002 Olympic torch parade went
by.

"Illegal drugs and the glorification of the drug culture are
profoundly serious problems for our nation," Starr, a former solicitor
general, told the justices in a solemn tone in the opening moments of
his argument on Monday.

In other words, his approach was to present the free-speech case as a
drug case and argue that whatever rights students may have under the
First Amendment to express themselves, speaking in oblique or even in
arguably humorous dissent from a school's official anti-drug message
is not one of them.

That was Starr's story, and he stuck with it, through a series of
hypothetical questions from the justices and on into a one-minute
rebuttal at the end of the lively hour. While Starr may not prevail on
the full breadth of his argument, his strategy appeared on the verge
of succeeding well enough to shield his clients, the Juneau School
Board and Deborah Morse, then the principal at the high school, from
having to pay damages to the student, Joseph Frederick.

A majority of the court seemed willing to create what would amount to
a drug exception to students' First Amendment rights, much as the
court has in recent years permitted widespread drug testing of
students, even those not personally suspected of using drugs, under a
relaxed view of the Fourth Amendment prohibition against unreasonable
searches.

Starr's biggest ally on the court was the man who once worked as his
deputy in the solicitor general's office, Chief Justice John G.
Roberts Jr. The chief justice intervened frequently throughout both
sides of the argument, making clear his view that schools need not
tolerate student expression that undermines what they define as their
educational mission.

"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?" Roberts
asked Starr.

The question was particularly interesting because Starr had just
sought to reassure the court that his argument was not limitless. The
court's leading precedent on student speech, a 1969 decision called
Tinker v. Des Moines School District, "articulates a baseline of
political speech" that students have a presumptive right to engage in,
Starr said.

That was too far to the middle for the chief justice. "Presumably, the
teacher's agenda is a little bit different and includes things like
teaching Shakespeare or the Pythagorean theorem," he said, adding that
"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 that speech."

And later, Roberts took issue with a suggestion by the student's
lawyer, Douglas K. Mertz, that schools that seek to inculcate an
anti-drug message must permit students, outside the formal classroom
setting, to offer competing views. "Content neutrality is critical
here," Mertz said.

"Where does that notion that our schools have to be content neutral"
come from, the chief justice wanted to know. He added, "I thought we
wanted our schools to teach something, including something besides
just basic elements, including character formation and not to use drugs."

One issue in this case, Morse v. Frederick, No. 06-278, was the nature
of the event at which the student unfurled his provocative banner.
Edwin S. Kneedler, a deputy solicitor general who shared Starr's
argument time and presented the Bush administration's position in
support of the school, said the Olympic torch event was the equivalent
of a school assembly, with students attending under the supervision of
their teachers and under the jurisdiction of the school.

Mertz said it was basically a public event in a public place. In that
context, he argued, the sign was not disruptive.

The distinction matters, because under the Tinker precedent, student
speech can lose its protected status if it is unduly disruptive.

Justice Anthony M. Kennedy took issue with Mertz's characterization of
the display as not being disruptive.

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

As in many other cases, Kennedy's vote may prove crucial to the
outcome. This case presents a particular challenge for him. While he
is perhaps the most speech-protective of the justices, he is also
highly pro-government on issues involving illegal drugs.

Justice Samuel A. Alito Jr. asked a series of questions suggesting
that his sympathies lay with the student rather than the school. That
would be consistent with a decision he wrote six years ago as a judge
on the 3rd U.S. Circuit Court of Appeals that struck down a
Pennsylvania school district's speech code.

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JUSTICES' REACTIONS

School officials could "suppress all sorts of political speech and
speech expressing fundamental values of the students under the banner
of getting rid of speech that's inconsistent with the educational mission."

. Justice Samuel A. Alito Jr.

"If the design had been 'Bong "Stinks" for Jesus,' would the reaction
have been the same?"

. Justice Ruth Bader Ginsburg

"It's political speech. I don't see what it disrupts."

. Justice David Souter

"If kids go around having 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."

. Justice Stephen Breyer

"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."

. Chief Justice John Roberts Jr.