I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most . . . of all, his belief in you, the students of Bethel, is firm.
Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds.
Jeff is a man who will go to the very end -- even the climax, for each and every one of you.
So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best our high school can be.
After taking the Tinker case involving wearing armbands to protest the Vietnam War, the Supreme Court's choices for school cases in this context have left a bit to be desired. It might be said that they took fairly asinine cases, except for the school newspaper case, one involving deletion of various stories with personal details of a sensitive nature. One wonders how they got that far.
The cases, to be clear, involve general concerns above and beyond the asinine nature of the speech involved. For instance, Bethel concerned the power of public schools to regulate non-viewpoint based speech to uphold a proper manner of speaking for students. The cheerleader case will provide some clarity about speech "off" the campus, to the extent that includes the Internet (which can be viewed on campus). And, the other case dealt with promotion of illegal drug use and some clarity on what a "school event" entails.
A middle school student can wear an armband; making sure they don't make sexual innuendo during school election campaigns is a fair cop. The opinion as a whole basically said that a school can do that even without it needing to be the level of disruption that was the test in Tinker. Justice Marshall briefly dissented to note there was no disruption, but would use of expletives do that? Would that be allowed too? Suggests the limits of the rule.
Stevens had a longer dissent and a major theme for him was the due process concern that the student did not really have fair notice that the speech would violate school policy. On that, the fact two lower courts went the other way helped convince him to go the other way, speech being involved warranting care. The majority (Brennan concurred to be a bit more careful; he included text of the speech) thought it rather obvious.
The lawyer for the student during oral argument had a bit of a rough time, including not sounding very comfortable at times arguing the case. He only has one case listed on Oyez.com. (As an aside, he was suspended for a year about fifteen years later. And, he had issues later on too, see here, where it appears his expertise was patent law?) It is one of those times where that website's recently added "wisdom of the stairs" feature of adding new answers to certain questions raised at argument comes to mind.
A basic sentiment taken from the oral argument and opinion (but it wasn't just Burger) that the speech was sophomoric, not to be taken seriously. An important thing to underline here is the basic principle at stake. You could not basically leave the sentiment that what was at issue here was a stupid kid's asinine speech. You have to firmly (pun intentional) push back on this. The student was chosen for his ability to address the sentiments of his fellow classmates. High school students, even if the majority wants to talk about some being fourteen year old. High school students that are taught various things with sexual connotations.
(A telling point. What is the breadth of the school's power here? What if a comparable speech was used in a personal essay during composition class or something? A teacher telling the student that it was improper, write something else, would be a lot different than suspending the student, perhaps for reading it to the class.)
The speech was not just given; it was shown to three teachers. Their reaction was mixed; the implication that it was a clear statement that he violated the rules is suspect, especially given what is at stake. It was a political speech, a core concern of the First Amendment. At least one justice was dubious that it was political. But, what else is it?
It was a campaign speech. Is it the content? Campaign speeches repeatedly are personality based, not about "the issues" or something. Is it the off color humor? Such speeches traditionally -- see Abraham Lincoln (hey, when it was Hustler's ad about Falwell's mom having incest with him historical greats of political humor were cited) -- had that too. Like people in the past and present, speech makers are chosen for knowing their audience. Stevens is right to underline the contemporary community standards issue.
If the content is asinine, what about suspending him for three days (!) for giving it?! This brings to mind an answer that the advocate had trouble giving a clear answer to, to the annoyance (sorta justified) of the justice who asked. What if the school said this exact speech was not allowed? Well, basically, he said the Court did not decide if that speech was protected. So, he was loathe to grant that it would be okay for the school to disallow it. The question tried to avoid the back-up issue, treated rather summarily by the Court, that it wasn't clear the rules were violated.
One thing -- and that's brought out here too -- that comes up in these cases is the concern about "making a federal case of it." I would be sympathetic. Schools are trying their best here and this was not some blatantly arbitrary move on their part. But (sad tone), there is a problem. This isn't the case of a student knowing from past experience that this sort of thing was not allowed. At least, that doesn't come out in the opinions. It isn't the exact speech. If some other sexually suggestive speech or something was not allowed, it would be fair warning.
But, that didn't happen here.
The principle doesn't go away because many might deem his speech as asinine. We are talking about high school students. They will at times have asinine, sophomoric speeches. There are ways to address that, including talking to him afterwards, and making clear that in the future this sort of thing would not be allowed. The question tried to avoid the due process concern, but also emphasizes free speech concerns. We try there to avoid overbreadth. To avoid days of suspension, the student will be extra careful, even in borderline cases. Note again two levels of courts and multiple justices disagreed that the speech was clearly over the line.
It was noted that education is about teaching values. Again, the oral argument should firmly agree with that, and use it for one's own purposes. This was suggested -- the appropriate path was by persuasion. But, I think the person could have done so more firmly. The teachers' persuasion did not do it, but in some other case a student would follow teacher role modeling. And, again, after the fact the school can use this as an example of what was deemed improper political rhetoric.
The justices might wonder why this stupid speech is even in the courts, but it is, and they had an obligation to take the basic issues seriously. Because that is the reason a case is taken -- not merely for the specific case, but to decide wider questions of law. Mere error correction is generally not the job of the Supreme Court, especially when taking a case for full review with specific constitutional questions with broad scope.
At least, that is how I would have focused the argument if given the chance. As to the actual decision, I'm sympathetic with both Brennan (concurring) and Stevens (dissenting), thinking Marshall (dissenting) is a bit too limited. The majority had a point too, but was a bit too dismissive of the other side, especially the due process concern. Note that Blackmun only concurs in result without an opinion.
A previous case said a ten day suspension was not trivial. A couple days (the third day dropped) is to me not quite trivial either. Again, if the case actually came to me, I am inclined to hold that the school could bar such a speech in an official assembly, but free speech and due process was violated by the way they did it. The case very well might be close. Close enough that damages would not be warranted except maybe in some minimal way. And, the opinion can again make the point that the school is allowed to regulate this sort of thing differently than armbands.
Let's see what the current, tainted, Court hands down tomorrow.
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