Deputy Solicitor General Edwin Kneedler argues the school's side of the case on behalf of the Bush administration. Justice Samuel Alito finds it "very, very disturbing" that schools can define their "educational missions so broadly" that they can limit important student speech. He's worried about the evangelical groups, who sit, improbably, at the stoners' table in the cafeteria today. These groups worry, not unreasonably, that the targets of most school suppression of politically incorrect speech are religious students sporting pro-Jesus or anti-gay T-shirts.
Souter again insists that the "bong hits" statement itself should be scrutinized for its meaning. The way Cheech and Chong might strive to seek meaning in a Hanson song. * But Kneedler responds that the only person who can determine the banner's meaning is the educator who banned it. "But won't the principal always prevail?" asks Justice John Paul Stevens. Um, yes. That seems to be the point.
By the time Douglas Mertz gets up to argue on the students' side, it looks like he's already won, if for no other reason than the justices appear horrified by the limitless power the schools are asserting. But somehow he manages to trigger a second, more terrifying episode of paranoia in them. "This is a case about free speech, not drugs," he opens, but Roberts clocks him with: "This is a case about money. Your client wants money from the principal for her actions." Then Kennedy jumps in to ask what kind of kid would go after "a teacher who has devoted her life to this school, and you're seeking damages from her for a sophomoric sign."
Scalia begins to bogart the argument at this point and asks whether a school that held an anti-drug rally in the gym would have to permit a student to wear a button that says, "Smoke pot. It's fun." Mertz repeats that student protest can't be "disruptive." Scalia retorts that "undermining what the school is trying to teach" is pretty disruptive. Kennedy asks about a student sporting a button that says, "Rape is fun." Mertz says students may not advocate violent crime. This sets Scalia off again. "So, they can only advocate non-violent crime?" he snorts. "Like, 'Extortion is profitable?' " He adds that "this is a very, very, with all due respect, ridiculous line."
Now they all start to bicker about disputed questions of fact. Like whether it matters that the students were given time off to watch the Olympic torch, or that Frederick still wants the record of his suspension expunged, or that Frederick played hooky so that he could hold up his banner, yet specifically went to a spot directly next to the school to join his classmates (thus reaping the benefits of skipping school while still attending school for the purposes of annoying the school administrators). Ginsburg's eyes are getting redder by the minute. Ken Starr is now eating everything in sight.
It's hard to imagine that the students of America will be better served by giving their educators the ultimate gateway drug: the apparently limitless power to define their "educational mission" in any way they please in order to suppress any and all student speech that doesn't conform. That kind of power strikes me as more addictive, and even more dangerous, than any drug.