COURT HEARS ARGUMENTS ON STUDENT SPEECH

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," Mr. Starr, a former
solicitor general, told the justices 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 antidrug message
is not one of them.

That was Mr. 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 Mr. 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, the high school principal, 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.

Mr. 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?"
Chief Justice Roberts asked Mr. Starr.

The question was particularly interesting because Mr. 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, Mr. 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, Chief Justice Roberts took issue with a suggestion by the
student's lawyer, Douglas K. Mertz, that schools that seek to
inculcate an antidrug message must permit students, outside the
formal classroom setting, to offer competing views. "Content
neutrality is critical here," Mr. 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."

Mr. Mertz clarified his point. "There is no requirement of equal time
or that it be neutral," he said. The school should be able to express
a viewpoint, he continued, but "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."

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 Mr.
Starr's argument time and presented the Bush administration's
position in support of the school, said the torch event was the
equivalent of a school assembly, with students attending under their
teachers' supervision and under the school's jurisdiction.

Mr. 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 Mr. 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," Justice Kennedy said, adding: "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."

As in many other cases, Justice 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 United States Court of Appeals for the Third Circuit that
struck down a Pennsylvania school district's speech code.

In that case, Saxe v. State College Area School District, Judge Alito
said the policy "strikes at the heart of moral and political
discourse -- the lifeblood of constitutional self-government (and
democratic education) and the core concern of the First Amendment."
His opinion was based on an interpretation of the Tinker precedent
that was notably more robust than that put forward on Monday by Mr.
Starr and Mr. Kneedler and, seemingly, by Chief Justice Roberts.

During the argument, Justice Alito interrupted Mr. Kneedler as the
deputy solicitor general was asserting that a school "does not have
to tolerate a message that is inconsistent" with is basic educational mission.

"I find that a very, very disturbing argument," Justice Alito said,
"because schools have 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
getting rid of speech that's inconsistent with educational missions."

In response, Mr. Kneedler said that for that reason, "it would make a
lot of sense" for the court to issue a narrow ruling limited to
student advocacy of illegal conduct in general or drug use in particular.

This was Mr. Starr's third argument in a high-profile Supreme Court
case since the last chapter of his public career, as the independent
counsel in the various investigations of President Bill Clinton. He
appeared before the court in the 2003 case that challenged the
McCain-Feingold campaign finance law and the next year in case on the
recitation of the phrase "under God" in the Pledge of Allegiance.