CHIEF JUSTICE ROBERTS PLAYS GAMES WITH BROWN VS. BOARD OF EDUCATION

Chief Justice John Roberts tries to use the reasoning of Brown vs. Board of Education as his lawyerly clever, sleight-of-hand weapon, against those who would have America's schools racially integrated. He claims then-Chief Justice Earl Warren ruled in Brown that schools may never take into a student's race in striving for a racially diverse student body.

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin . . . For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation . . . , the way "to achieve a system of determining admission to the public schools on a non racial basis," is to stop assigning sutents on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Does Roberts' argument stand and pass the laugh test? He argues that when a school district finds itself with a racially unbalanced student body resulting from economic or social factors other than having been caused by state or Jim Crow laws, it can not assign students to various schools on the basis of their race for the purpose of leveling the racial playing field.

Comments Samuel Bagenstos, Professor of Law, Washington University Law School:

"Chief Justice Roberts gives us no reason to believe that a rule of formal governmental race-blindness, that entrenches and enforces the results of private racial discrimination, will “stop discrimination on the basis of race.” He gives us nothing more than the platitude that when the government takes race into account it “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.” (Here he quotes from a 1993 opinion involving racial gerrymandering in redistricting.) Chief Justice Roberts is making an awfully doubtful empirical assertion here, without providing any empirical evidence. And the normative premise that school districts must take private discrimination as they find it, with their hands tied from responding to it, seems to me totally unjustifiable. Remember that here we are dealing with school districts that voluntarily chose to adopt integration plans—this isn’t a case involving court-ordered integration."

Justice John Paul Stevens in his short but meaningful dissent also takes aim at Roberts' "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" platitude:

"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." . . . 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. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions."

DO HIGH SCHOOL STUDENTS' RIGHTS OF FREE SPEECH STOP AT THE SCHOOL HOUSE GATE?

One of the major decisions of the U.S. Supreme Court for this term is Morse vs. Frederick, a case that tests a student's right to free speech in a high school setting.

Writes Chief Justice Roberts:

"At a school-sanctioned and school supervised setting, a high school principal saw some of her students unfurl a large banner convey a message she reasonably regarded as promoting illegal drug use. . . We hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it."

But to understand the case and see if Roberts got it right, we need to know what the banner said. "BONG HiTS 4 JESUS." That was it. According to the school superintendent, the poster "is a reference to a means of smoking marijuana." Furthermore, the superintendent concedes the student "was displaying a fairly silly message . . ." But the message was "promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the [event]."

The question is whether "BONG HiTS 4 JESUS" should be read as "promoting illegal drug usage," as both the school principal, school superintendent and Chief Justice Roberts seem to think.

Or is it free speech, uttered by a student, that does not promote anything, much less "illegal drug usage," and protected under the First Amendment?

Justice Stevens writes a stinging and well-reasoned dissent to Roberts, and the other four who joined the Chief Justice in the Court's decision (Scalia, Alito, Kennedy and Thomas). Stevens bases his dissent on the famous case in 1969, Tinker vs. Des Moines Independent Community School District, where students showed up at school with black armbands to protest the VietNam War. Tinker ruled that students do not lose their right of free speech when they enter the school house door. Stevens even brings up a quote of Justice Alito from a case decided when Alito was on the Third Circuit Court of Appeals, in which Alito then defended a student's right to free speech in school provided the speech was not disruptive:

"[R]egulation of student speech is generally permissible only when the speech would substantially disrupt of interfere with the work of the school or the rights of other students . . . Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance."

Stevens takes a common sense look at the message of the poster and finds it obscure and nonsensical:

"But it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively - and not very reasonably - thinks is tantamount to express advocacy. . . . To the extent the Court independently finds that 'BONG HiTS 4 JESUS" objectively amounts to the advocacy of illegal drug use - in other words, that it can most reasonably be interpreted as such - that conclusion practically refutes itself. This is a nonsense message, not advocacy."

Stevens finds the Roberts decision itself nonsensical because the Court seems to be ruling that any message regarding drug use is prohibited and not protected by the First Amendment if someone else subjectively perceives the message as encouraging illegal drug use:

"Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message."

Stevens ends his dissenting opinion with a call to open dialog and speech not matter how controversial the topic:

"In the national debate about a serious issue, it is the expression of the minority's viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular."