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Supreme Court Today

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The transcript of oral argument in Morse v. Frederick, the "Bong Hits 4 Jesus" case, is available on the Court's site. Interestingly, both former SG Starr, for the principal, and current DSG Kneedler, for amicus US, spend their entire arguments on the position that the principal was correct to discipline the student, not mentioning the more easily defended position that she is covered by qualified immunity. When plaintiff's counsel gets up, he has barely begun before Chief Justice Roberts and Justice Kennedy pounce on that point. Even Justice Souter, who had grilled Starr and Kneedler with apparent sympathy for plaintiff's position on the merits, is skeptical that the law was so clear that the principal should have known it. See pages 49-50.  On page 47, Justice Breyer notes that Frederick may not have been disciplined for his banner at all. The superintendent reduced the suspension from 10 days to 5, stating that assuming the banner was protected speech, Frederick still deserved 5 for other misconduct.

In other action, the Court accepted no new cases today. Among the denials were a couple of cases of interest from SCOTUSblog's "reasonable chance" list. Houk v. Joseph, No. 06-961 dealt with the continuing problem how issues of state law interact with federal requirements such as proof beyond a reasonable doubt. The Court also turned down Goetz v. John B., No. 06-901, doubtless disappointing Beach Boys fans. This is a Medicaid case, but the issue involved a court-appointed special master who was allegedly more of an advocate for the plaintiffs than a neutral adjudicator. That never happens in prison litigation, does it?

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Freedom of speech and schools is a very messy topic. I don't envy anyone trying to figure out what the correct standards are.

One thing, however, seems clear is that other students are, in a sense, a forced audience. Thus, it would seem to me that school officials would have more leeway in restricting speech. Where that gets hard, though, is viewpoint based discrimination. Can a confederate flag be banned, whereas a "Che Guevara" t-shirt is ok? Can students be punished for quoting "The Bell Curve", Leonard Jefferies' "Ice People" nonsense or quoting the Bible with respect to homosexuality. It's hard not to think that in today's world, some speech will be better than others . . . .

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