Bong Hits Continued

JUSTICE ALITO:

While Justice Thomas's concurrence complained the official opinion in Bong Hits was not extreme enough, Justice Alito concurs, but expresses very different reservations.

Far from Thomas's reservation the court did not go far enough to shut up students who might want to question official dogma, Alito expresses relief the opinion was as narrow as it was.

He questions the justification of protecting the school's "Essential mission" because it allows public schools to define, "Their educational missions as including the inculcation of whatever political and social values are held by the members of these groups."

And that disturbs him. He notes, "The 'education mission' argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with he viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment."

He also expresses some horror at the image Thomas so loves as the teacher and principal as being a substitute parent: "They are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students' parents. It is a dangerous fiction to pretend that parents simply delegate their authority--including their authority to determine what their children may say and hear--to school authorities."

Couldn't have said it better myself, and this Justice goes on to demolish Thomas's love it or leave it argument: "Most parents, realistically, have no choice but to send their children to a public school."

He also notes the physical danger students in public schools face. In this, he sounds as if he has watched the fourth season of The Wire, with some attention.

But then the personal history of a good Catholic who believes in authority above personal freedom, who sees dissent as dangerous takes hold. He knows where he has to wind up in this argument and he spins off, out of control to say that speech, anti authoritarian speech can lead to physical violence. "Illegal drug use presents grave and in many ways unique threat to the physical safety of students," as if unfurling a banner could lead directly to drug use, heroin abuse and sudden death.

JUSTICE BREYER:

Concuring in the opinion, but with complaint, is the Justice Breyer, who did not like the idea of an unruly student going unpunished, but like Justice Alito, he sees the problem with killing off the First Amendment in the process.

It's that old Thoreau thing, "As if you could kill time without injuring Eternity."

He notes that if Frederick's banner had read "LEGALIZE BONG HITS," it would have been speech advocating change in drug laws and that would clearly have been expressing a political opinion which even Justice Roberts might have had to admit is protected speech. He asks, "What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve pain? What about deprecating commentary about an anti drug film shown in school?"

He notes a precedent (West Virginia Bd. of Ed v Barnette) which found students did not have to recite The Pledge of Allegiance at school. The students were free to express their dissent in silence. This sounds like a very enlightened opinion, especially considering it was rendered in 1943, during World War II. I'll have to read that one.

Breyer is disturbed about the image of a student at school being punished for expressing opinions at odds with the indoctrination promulgated by authorities, because, as we can all imagine, this looks too much like what we were imagining life in the Soviet Union or Nazi Germany was like--where to question authority meant swift retribution. After all, we take pride in the idea that while Hitler Youth was busy shouting "Zeig! Heil!" and extending their arms to their Fuhrer, American children were free to sit in their chairs with their arms folded.

But like the rest of the conservative bench, Breyer has to get to the position of supporting authority, the principal and smashing the student under his thumb: The path Breyer takes to his promised land of authority in command and dissent suppressed is a different one. He says,look it's the misbehavior that's the problem. And a principal has the right under the principal of Qualified Immunity.

Qualified Immunity means that an official acting in the capacity of executing the demands of her office views a student's act as "Beyond the pale," then she is protected from being sued by that student when she exercises her power.

The reasons for this protection are obvious to anyone who has seen the fourth season of The Wire, which demonstrates how students in inner city schools can destroy any chance of any student to get an education by behavior aimed at preventing any real education from occurring in a classroom.

But he goes too far in saying we cannot expect principals and teachers to be jurists, and we cannot expect them to know when they have violated a student's right to free speech.

This is not all that arcane a concept. If we can expect the average citizen to understand the right to free speech, can we not expect those who teach our Constitution to our children to have a basic working knowledge of the First Amendment?

Is this whole episode not a "Teachable Moment?" of potentially more value to students than anything they might have learned at that pep rally for, what is in the end, a commercial enterprise, the Olympics, Inc?

Can you imagine the classroom discussions which might have happened after this protest, which could have encompassed the ideas embodies in the First Amendment, where they came from, how they've been interpreted, including Justice Oliver Wendel Holmes' famous and misleading assertion, "You are not free to shout 'Fire' in a crowded theater,"?

But none of these justices were inclined to imagine the potential value of discussing a dissenting opinion, the history of non violent consent, Gandhi, Martin Luther King, Civil Rights lunch counter protests, marches on Washington, the role of anti government policy peace movements in bringing an end to the war in Viet Nam.

That Alaskan principal failed her students, her school and her community because she reacted emotionally rather than rationally and with her mind. She had had her pretty little pep rally with her marching band and her cheerleaders sullied by those rambunctious boys who were sick to death of the goody two shoes cheerleader crowd. They spat on her parade and she spat back.