SubscribeAt the outset, we reject Fredericks argument that this is not a school speech caseas has every other authority to address the question. See App. 2223 (Principal Morse); App. to Pet. for Cert. 63a (superintendent); id., at 69a (school board); id., at 34a35a (District Court); 439 F. 3d, at 1117 (Ninth Circuit). The event occurred during normal school hours. It was sanctioned by Principal Morse as an approved social event or class trip, App. 22 23, and the school districts rules expressly provide that pupils in approved social events and class trips are subject to district rules for student conduct. App. to Pet. for Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school. Id., at 63a. There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, see Porter v. Ascension Parish School Bd., 393 F. 3d 608, 615, n. 22 (CA5 2004), but not on these facts.
Justice Stewart recognized this in his concurring opinion in Flast, when he said that every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution, and thus distinguished the case from one in which a taxpayer sought only to air a generalized grievance in federal court. 392 U. S.,How is there a substantive difference between congress giving tax dollars to churches and congress giving tax dollars to the president to give to churches?
at 114.
In Frederick, what's up with Justice Thomas? On page 28 of the pdf, he drops this bomb: "In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools." Is he really saying, "Nya nya nya, I can't hear your Tinker."Yes, in his concurring opinion Justice Thomas is essentially declaring that he is in agreement with Justice Black's dissenting opinion in Tinker (i.e. that public school students completely lack First Amendment rights while at school). Ouch.
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. The Court’s feeble effort to divine its hidden meaning is strong evidence of that. Ante,at 7 (positing that the banner might mean, alternatively, “ ‘[Take] bong hits,’ ” “ ‘bong hits [are a good thing],’ ” or “ ‘[we take] bong hits’ ”).Former independent counsel Ken Starr, whose law firm represented the school principal, called it a narrow ruling that 'should not be read more broadly.'But based on the margins, it looks like the majority is saying that anything the school thinks is unpopular and/or interfering with the school's mission is fair game.
Taking issue with that, Steven R. Shapiro, national legal director of the American Civil Liberties Union, said, 'It is difficult to know what its impact will be in other cases involving unpopular speech.'
It is no answer to say that these cases can be distinguished from Brown because Brown involved invidious racial classifications whereas the racial classifications here are benign. See post, at 62. How does one tell when a racial classification is invidious? The segregationists in Brown argued that their racial classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p. 83 (“It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools”); Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p. 82–83 (“Ourmany hours of research and investigation have led only to confirmation of our view that segregation by race in Virginia’s public schools at this time not only does not offend the Constitution of the United States butserves to provide a better education for living for the children of bothraces”); Tr. of Oral Arg. in Davis v. County School Board, O. T. 1952, No. 3, p. 71 (“[T]o make such a transition, would undo what we havebeen doing, and which we propose to continue to do for the uplift and advancement of the education of both races. It would stop this march of progress, this onward sweep”). It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others.Bemoaning Seattle's deprivation of their ability to engage in social engineering is not a reasonable critique of the opinion or its Constitutional basis.
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JUSTICE BREYER’s good intentions, which I do not doubt, have the shelf life of JUSTICE BREYER’s tenure. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decision making on the assumption that their intentions will forever remain as good as JUSTICE BREYER’s. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961)(“If men were angels, no government would be necessary”). Indeed, the racial theories endorsed by the Seattle school board [ed: Your so-called "best in the country"] should cause the dissenters to question whether local school boards should be entrusted with the power to make decisions on the basis of race. The Seattle school district’s Website formerly contained the following definition of “cultural racism”: “Those aspects of society that overtly and covertly attribute value and normality to white people and whiteness, and devalue, stereotype, and label people of color as ‘other,’ different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collectiveideology, defining one form of English as standard . . . .” See Harrell, School Web Site Removed: Examples of Racism Sparked Controversy,Seattle Post-Intelligencer, June 2, 2006, p. B1. After the site was removed, the district offered the comforting clarification that the site was not intended “ ‘to hold onto unsuccessful concepts such as melting pot or colorblind mentality.’”More recently, the school district sent a delegation of high school students to a “White Privilege Conference.” See Equity and Race Relations White Privilege Conference, https://www.seattleschools.org/area/equityandrace/whiteprivilegeconference.xml. One conference participant described “white privilege” as “an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious. White Privilege is like aninvisible weightless knapsack of special provisions, maps, passports,codebooks, visas, clothes, tools, and blank checks.” See White Privilege Conference, Questions and Answers, http://www.uccs.edu/~wpc/faqs.htm; see generally Westneat, School District’s Obsessed with Race,Seattle Times, Apr. 1, 2007, p. B1 (describing racial issues in Seattleschools).
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Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow. The plans before us base school assignment decisions on students’ race. Because “[o]ur Constitution is color-blind,and neither knows nor tolerates classes among citizens,” such race-based decisionmaking is unconstitutional.
School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools;drawing attendance zones with general recognition of thedemographics of neighborhoods; allocating resources forspecial programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candorand with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impacta given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.There are other ways to achieve the solution sought that are constitutionally permissible. Though the other ways may be more less efficient or more time and resource consuming, they have the virtue of not engaging in state-based classifications that run afoul of the Constitution.
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The argument ignores the dangers presented by individual classifications, dangers that are not as pressingwhen the same ends are achieved by more indirect means. When the government classifies an individual by race, itmust first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society.
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The decision today should not prevent school districtsfrom continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some influenced by government, some not—neighborhoods in our communitiesdo not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.
the Louisville school district’s interest in remedying its past de jure segregation did vanish the day the District Court found that Louisville had eliminated thevestiges of its historic de jure segregation. See Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, at 360 (WD Ky. 2000). (57)Sounds like the end of an era. So then we arrive at the Wygant standard. You write:
in Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 274 (1986), the plurality noted: “This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.”This, of course, is in many ways a clarification of the various desegregation decisions going back to Brown, but it's a clear standard that the majority depends on quite heavily. It's the source of this de jure/de facto test for segregation.
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The previous threads are interesting in light of the new opinions, so check them out.
posted by dios at 10:19 AM on June 25, 2007