Ethical or legal analysis always begins with establishing the "Facts" of the case. Of course, facts, as I learned in college, are slippery and mutable things, but we try.
Morse v Frederick began one afternoon outside an Alaska high school, when the principal released the student body to line a street in front of the school to cheer the passing of the Olympic torch which was being carried past as a promotion for the Olympic games and TV news was expected. Among several students, Joseph Frederick, unfurled a 14 foot banner, on the far side of the street, bearing the immortal words, "Bong Hits for Jesus," as the torchbearers and camera crews passed by. Prior to this action, friends associated with him had become "rambunctious, throwing plastic cola bottles and snowballs an scuffling with their classmates."ed
Involved in this event were the high school band and cheerleaders. One can only imagine, the pep rally aspect to this, where all the students and teachers should have been beaming grins and chanting cheers and feeling full of school spirits and having other wholesome emotions.
The principal crossed the street and tore down the banner, summoned Frederick to her office and suspended him for 10 days. He failed to report to the principal's office on time and displayed a "belligerent" and "defiant" and "disruptive" behavior when he finally reported.
So there are several possible offenses attributed to the student:
1. That he unfurled a banner facing his fellow students and did not take it down when directed by the principle.
2. That he created a disruption to a school activity.
3. That he was defiant.
4 . That he was belligerant.
5. That he undermined school discipline, the authority of the teachers and the principal.
6. That he encouraged illegal drug use with his banner.
The court found for the principal.
Writing for the majority was Chief Justice Roberts, but Justice Thomas saw enough in this case which disturbed him to write his own concurring opinion, as did Justices Alito with Kennedy and separately, concurring Justice Breyer.
The dissent was written by Justice Stevens.
Joseph Frederick had argued his right to free speech had been violated and asked for damages and asked that his suspension be expunged from his record.
Now for a brief summary of each justice's reasoning. After this, we can spend some time examing, in detail, the reasoning of each and what it tells us about each justice.
But keep the main goal in mind: If I am successful in my analysis, I will convince you each justice began with an emotional response to this case, rooted in their own childhood and school experiences and in their own attachment to the idea of authority.
Jutice Roberts:
1/Rather than take on the problem of whether or not the student's muzzling had been a violation of his right to free speech, Roberts bases his opinion on whether or not the student's speech had advocated a forbidden action: use of the illegal drug, marijuana.
He goes on at length, in a very emotive way, to beat the drum about how harmful drugs are, especially in vulnerable adolescents and how expressing a view favoring the juse of marijuana threatens a core mission of the school, to indoctrinate the student body against drug use.
He says Frederick was at the very least, "Celebrating" mariuana use, which is forbidden in a school. Diluting this message with protest is unacceptable. The state dogma is marijuana, like all illegal drugs, are horrible and any dissent from this dogma is punishable by the state, at least in school. School teachers and principals are allowed to create an environment in which no opposition is tolerated.
2/ He spends some time rejecting Frederick's claim he was not actually in school, but across the street, which is a trivial point and their are rules which define behavior on class field trips, so this is a paper tiger and Roberts takes great joy in showing how wrong Frederick is about this, as if being wrong on this minor point somehow undermines Frederick being right about the First Ammendment.
3/ Roberts then addresses the issue of whether or not Frederick's banner was "Disruptive," because there are precedents which address this as a pretext for forbidding acts of student dissent which is disruptive. (Tinker and Fraser.) And, Roberts decides this act was disruptive, because, mainly, it questioned authority.
He refers to Tinker, a case in which students protesting the War in Vietnam were disciplined for wearing armbands and were protected by the First Ammendment because the justices in that case said that students did not have full adult rights when students were in school. He refers to Fraser because in that case the student had given a sexually provocative speech at a school assembly and the court said that school is a special environment where the Constitutional right to free speech may be abridged. And if the students speech interfered with that work, it is okay to forbid it.
Justice Thomas
1/ Invokes a long and strangely selective, one might say fantasy about the history of education in the United States, which began with private schools and only gradually evolved into a system of publica schools. In this bygone lost paradise, the teacher ruled supreme, was a parent substitute who could beat children physically and the teacher taught and the students accepted what they were taught without question, without opposition and totally happily. The unruly passions of children were tamed and the children came to accept virtue and to internalize it. "Public schools were not places for freewheeling debates or exporation of competing ideas." And that, Thomas says, was a good thing. "Teachers instilled these values not only by presenting ideas but also through strict discpline...Rules of etiquette were enforced and courteous behavior. To meet their educational objectives, schools required absolute obedience...In short, teachers commanded and students obeyed."
And this, Justice Thomas says, is how schools ought to be.
Courts have upheld this vision of the state's role in education: "Courts routinely preserved the rights of teaches to punish speech that the school or teacher thought was contrary to the interests of the school."
2/ He suggests parents who find this sort of atomosphere antithetical to what real education means, the fostering of the ability to question, to criticize, to argue without malice or hostility, well, "They can send their children to private schools or home school them."
With the next post, we'll examine the Alito, Kennedy and Breyer opinions.
And once all these opinions have been summarized, I'll have something to say about them.
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