from Jim Ho (a friend of mine who is an appellate lawyer at Gibson, Dunn & Crutcher) to Justice Stevens' opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1:

"There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' Ante, at 40. This sentence reminds me of Anatole France’s observation: '[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.' The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools." Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Stevens, J., dissenting).

"Martha Lum ... desired to attend the Rosedale Consolidated High School .... [A]n order had been issued by the Board of Trustees, ... excluding her from attending the school solely on the ground that she was of Chinese descent and not a member of the white or Caucasian race, ... made in pursuance to instructions from the State Superintendent of Education of Mississippi .... The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and therefore not entitled to attend the schools provided by law in the State of Mississippi for children of the white or Caucasian race.... The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.... The decision is within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment." Gong Lum v. Rice, 275 U.S. 78 (1927).

Without doubt the overwhelming majority of nonwhite children barred from better schools by de jure segregation were black; nonetheless, Jim is quite right to observe that even in the Supreme Court's opinions the "only black schoolchildren" is an overstatement. (Note, incidentally, that the Jefferson County, Kentucky policy that the Court struck down in Parents Involved in Community Schools treated Asian-American students the same as whites for purposes of the race-based enrollment caps and floors; the Seattle policy treated them the same as blacks for purposes of the enrollment caps and floors.)

Jason Harrow (SCOTUSblog) tells us how unusual Justice Kennedy's 97% batting average is. (Kennedy was in the minority in only 2 of the 71 cases he participated in this Term.)

Even Justice O’Connor, whom some used to refer to as the “most powerful woman in the world” due to her position in the center of the Court for many years, never had a Term like this. Her most successful Term was OT03, when she was in the minority five times and wrote two dissents; still, in that Term, 4 of her 5 dissenting votes were cast in 5-4 cases (there were 19 5-4’s in OT03).....

One must look way back in the Court's history to find any single Term where one Justice had comparable success. Justice Kennedy's two dissenting votes tied Justice Brennan’s output in October Term 1968; with a larger caseload back then, though, Justice Brennan’s feat that Term is arguably more impressive. Still, one must go further back to Justice Byron White’s October Term 1964 to find a circumstance where a Justice bested Kennedy and dissented only once over the course of a full Term, with no extenuating circumstances such as justice turnover (which can lead to misleading numbers).

The bottom line is that, by most measures, Justice Kennedy’s October Term 2006 has been the most successful Term by a single justice in roughly 40 years.

Is this the first time any Justice has had such a tally? SCOTUSblog's SuperStatPack also reports that he was in the dissent in only 2 of the 71 cases in which he participated — is that, too, a record, at least in recent years?

Note that the 24 5-4 cases came out with Kennedy joining the four conservatives 13 times, the four liberals 6 times, and no easily identifiable bloc 5 times. Thanks again to Jim Ho of Gibson, Dunn & Crutcher for first raising this point to me, when Kennedy was merely 16 for 16.

Justice Thomas's concurrence in Morse argues that the First Amendment doesn't restrict public school authorities' power over student speech. But while the opinion focuses only on the issue at hand -- speech in K-12 schools -- a good deal of the arguments there would apply equally to speech in colleges and universities.

Justice Thomas's argument is basically structured as follows; my remarks regarding to how this argument applies to universities appear in italic.

1. Original meaning: "[T]he history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." This also extends to the First Amendment as applied to the states by the Fourteenth Amendment, which was enacted in 1868. I'm not an expert on the history of speech restrictions in universities, but my tentative understanding is that the First Amendment was not seen as constraining such restrictions, at least until the 1950s or later.

In particular,

a. "Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800's, no one doubted the government's ability to educate and discipline children as private schools did." Public colleges and universities likewise developed after private ones, and in some measure as alternatives for private ones.

b. "Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled 'a core of common values' in students and taught them self-control.... Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong [including] idleness, talking, profanity, and slovenliness[]." [Footnote: "Even at the college level, strict obedience was required of students: 'The English model fostered absolute institutional control of students by faculty both inside and outside the classroom. At all the early American schools, students lived and worked under a vast array of rules and restrictions. This one-sided relationship between the student and the college mirrored the situation at English schools where the emphasis on hierarchical authority stemmed from medieval Christian theology and the unique legal privileges afforded the university corporation.'"] The footnote expressly suggests this reasoning historically applied to college students.

c. In particular, public schools were seen as operating "in loco parentis," which is to say in place of the parents and with the rights that parents have to constrain and discipline their children. [Footnote: "My discussion is limited to elementary and secondary education. In these settings, courts have applied the doctrine of in loco parentis regardless of the student's age. Therefore, the fact that Frederick was 18 and not a minor under Alaska law is inconsequential."] The footnote expressly limits the argument to K-12 schools, but I'm not sure the logic can be so limited: As I understand it, colleges were also understood as operating in loco parentis, partly because throughout much of America's early history the age of majority was 21 rather than 18.

2. "To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech."

a. In particular, this is because "Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934) ('California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course ...')." Again, this expressly relies on a university case; and its logic applies even more to public universities than to public schools -- no-one is legally requiring anyone to go to a public university or to any university at all, while children are legally required to go to at least some public K-12 school.

b. "If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process." This too applies fully to universities, though of course substituting pupils (and in some measure their families) for parents.

c. The main alternative to this approach—the Tinker standard for when student speech is to be protected—is too subjective and malleable. This may well not apply to universities. The current rule, as applied by the few Supreme Court cases on university student speech and by the many more lower court cases, seems to be that student speech (outside class and class assignments) is fully protected, subject of course to the usual caveats applicable in all speech contexts. Such a rule would be pretty clear; the question is whether Justice Black would think that it's right.

d. It's important to maintain "the traditional authority of teachers to maintain order in public schools. 'Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.'" This too may not apply to universities. First, my sense is that broad public and elite opinion agrees that outright "disorder" is not as serious problem at universities as it is in K-12 schools. Second, my sense is that the same broad opinion takes the view that some amount of verbal defiance and even disrespect (outside the classroom) is healthy at universities, even if it's dangerous at K-12 schools. If Justice Thomas shares these views, and sees these pragmatic judgments as relevant, he may thus conclude that a different rule should apply for university students than or K-12 students.

e. "To elevate [student] impertinence [uttering at a school event what is either '[g]ibberish' or an open call to use illegal drugs] to the status of constitutional protection would be farcical and would indeed be to 'surrender control of the American public school system to public school students.'" Again, this might not apply to universities, for much the same reasons as those I mentioned under 2.d.

So the bottom line: If Justice Thomas continues to focus on original meaning in free speech cases, or if he relies on the theory that those who "seek[] education offered by the State" must accept the requirements imposed by the State, then it seems likely that he would say that the First Amendment doesn't bar public universities from imposing speech restrictions on their students.

On the other hand, if Justice Thomas takes a more functional or pragmatic approach, focusing on the role of universities in public debate, and the role of public debate in universities, then he may take the view that university student speech is fully protected. (Of course, if I'm mistaken, and there is an 1800s and early 1900s tradition of protecting university student speech, either as a constitutional matter or at least as a matter of firmly embedded practice -- consider Justice Thomas's defense of anonymous speech in McIntyre v. Ohio Elections Commission, which was based on the tradition of anonymous political speech around the time of the Framing -- then Justice Thomas may also reach a pro-protection result on original meaning grounds, focusing on the meaning of free speech at the time the Fourteenth Amendment was enacted.)

I noted a while back that Justice Thomas in many ways resembles Justice Hugo Black, who served on the Court from the late 1930s to the early 1970s. Justice Black was mostly seen as a liberal Justice, and Thomas as a conservative, but both shared a distinctive style that sometimes made them mavericks: Both generally took the view that constitutional provisions should be interpreted the way they were understood when the provisions were written. Both preferred clear, bright-line rules to tests that required more judgment in their application. And both were much more willing than their colleagues to reconsider settled precedent.

This is particularly clear in Justice Thomas's concurrence in the K-12 school speech case, Morse v. Frederick: He was the only Justice willing to reverse Tinker v. Des Moines Independent School District, the 1969 case in which the Court first expressly held that government-run K-12 schools generally may not restrict student speech. (The flag salute case, West Virginia Board of Education v. Barnette, held in 1943 that schools may not require students to salute the flag; but as of Tinker, it wasn't clear whether Barnette was limited to the unusual circumstance of compulsory affirmation of belief.) He rested most of his argument on what he argued was the original meaning of the First Amendment, as applied to the states through the Fourteenth. And he also stressed that the Tinker standard, coupled with the modifications added since then (including by the majority in Morse itself), was too subjective to be a workable and principled rule of law.

And interestingly, in this case Justice Thomas's bottom line as well as his decisionmaking style matched Justice Black's: Justice Black was the one Justice in Tinker who would have held that government-run K-12 schools have a free hand in restricting student speech.

comments at National Review Online on Morse v. Frederick (paragraph break added):

The Court basically holds that schools can restrict speech about drugs because drugs are really harmful and really illegal.

All of this is no doubt true, but here's the rub: Virtually all restrictive speech policies (including over-broad anti-harassment rules or anti-bullying policies that are often used to shut down religious speech on political or sexual issues) are justified by the prevention of serious mental or physical harm to young people and by reference to other laws and regulations. All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics.

Advocating illegal activity? Administrators justify censoring tee-shirts or other forms of speech by reference to state anti-discrimination statutes, anti-bullying regulations, and hate crimes laws all the time. What about impairing the cognitive or psychological development of young people? If you don't think schools can't trot out literally hundreds of psychiatrists who would argue that moral disapproval impairs the development of young people engaged in various forms of sexual activity, then I have a particularly nice bridge I'd like to sell you. It's big and spans the East River.

At its base, this opinion dramatically expands the scope of state authority over the speech of school children. Tie the speech in question to any form of "advocacy of illegal behavior," and the student will face long odds, even if his or her speech was non-disruptive, not school-sponsored, and not profane.

If the speech contradicts a message that state or federal officials require schools to advance, then the odds grow even longer. If the school caps it off by trotting out some mental health care specialists who talk about the "profound harm" to delicate young minds or the risk of violence caused by the dissenting speech, then you might as well start drafting your appeal.

And what does this all have to do with universities, you ask? In every single free speech case I've ever argued, the university's first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder. In fact, I would be surprised if the "Bong Hits" case is not raised in at least two pending Alliance Defense Fund university speech cases. We shall see if the courts will continue to distinguish between secondary school and universities -- especially in the face of serious institutional pressure to blur the differences.

I'm not sure how much of a risk there is of slippage from K-12 student speech to university student speech; courts have generally drawn a pretty firm line between the two. But I wouldn't say there's no risk, especially given that parts of Justice Thomas's concurring opinion (on which I hope to have more in the coming days) would support giving public university administrators a free hand just as Justice Thomas would support giving K-12 school administrators a free hand. Justice Thomas is just one vote, and I expect that there would in any event be at least five votes for upholding university speech codes and the like -- but I can't say that I'm entirely positive.

I do think, as I've suggested in an earlier post that there is a good deal of risk of slippage from pro-drug speech to other kinds of speech by K-12 students.

I much appreciate Orin's response to my Morse v. Frederick post. Here is what strikes me as the heart of his claim, responding to point 2 of my post:

[Under Alito's approach, t]he speech is only unprotected if it advocates illegal drug use and can't reasonably be read as commenting about a political or social topic. Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic....

Eugene next suggests that urging someone to violate the law is implicitly speech about a political topic. If you urge someone to break the rules, you must implicitly be arguing that the rule is bad. That makes some sense in theory, but it's not how I recollect high school. Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority. That's what press reports suggest this case was all about; unfurling the banner was "a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic. It's not the only way to interpret the banner in this case, but I think it's a plausible interpretation.

The trouble, it seems to me, is that under Justice Alito's test as Orin (quite plausibly) reads it, the rule is not that the speech is unprotected if "a plausible interpretation" of the speech is "break [the rule] just for the thrill of opposing authority." Rather, the speech is unprotected only if this is the only plausible interpretation — if the speech "can't reasonably be read as commenting about a political or social topic."

So under Orin's reading, "BONG HiTS 4 JESUS" should be protected so long as it can reasonably be read as commenting about whether marijuana use is good (a "social topic") or whether marijuana criminalization is good (a "political ... topic"). And it seems to me that it can be so reasonably read (even if it can reasonably be read as just a prank).

It's true that sometimes if you urge someone to break the rules, or praise conduct that breaks the rules, that can't reasonably be read as an implicit argument that the rules are bad. "Give your classmates wedgies" is probably not a protest against battery law, or an assertion that Nietzschean supermen shouldn't be bound by such law — perhaps one can say that it must either be a joke or a call to violate a rule without any commentary on the rule's soundness (though I'm not completely positive even about that). I take it this, though, that this is largely because there's no reasonable debate about whether wedgies are good, or should be allowed at school. Everyone agrees that battery should be against the rules; praise of such battery is thus unlikely to be an endorsement of the battery, or a claim that the anti-battery rules are bad.

But it seems to me that "[take] bong hits," "bong hits [are a good thing]," and "[we take] bong hits" — the three reasonable interpretations of the sign set forth by the majority, which Justice Alito joined and didn't try to limit on this score — aren't within this category. There is a lot of disagreement about whether marijuana use is good, and about whether marijuana law is bad. It seems to me that these three interpretations of the slogan (all treated as reasonable interpretations by the majority) can therefore be read as commenting on the soundness and wisdom of marijuana use, and of marijuana law. It thus seems to me that we can't say the poster "can't reasonably be read as commenting about a political or social topic." So if Justice Alito's test is read as Orin suggests, the test would indeed be internally consistent — but it would be inconsistent with Justice Alito's conclusion that the speech here is unprotected.