Wednesday, March 21, 2007


The Ravin decision may be looked at in a manner that it has never been looked at before.
The 9th decision will go down in flames on the question of immunity. No doubt about it.
There will be a "splitting of hairs" on if he was at a school function.
The question: was he at school and then went to the relay or was he at home and went to the relay.
And the effect displaying the banner had on the school.
Hearing two gals who live here in Anchorage talk about what went on in the high school in Juneau when they were there; it seems things haven't changed a bit.
Move the capital.......
tlamb775 December 2, 2006 - 8:26pm
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tlamb775 March 20, 2007 - 1:00am
edit reply »

Important Questioning of the Petitioners:

JUSTICE GINSBURG: But it wasn't, it wasn't like an assembly, was it? As I understand it, the children were released from school, but they were not required to attend this event and they were not required to stand in front of the school on the opposite side. They weren't monitored by their teachers, so they -- and there were nonstudents in the crowd. So it's not like a school assembly.

MR. KNEEDLER: The students' present at the event, presence as the event, was like an assembly. Students may go into an assembly hall and not have to sit with their class. They were released from class, but they were not released from school or school supervision. There were teachers around there and the school could define what is the nature of our assembly at this public event and, just as in, in the auditorium a school could say there will be no political banners or, frankly, no banners about anything other than what the event is --

JUSTICE SCALIA: Were they required to go to this event and could they have skipped off and gone home without violating --

MR. KNEEDLER: They were not allowed to go home. They were required, they were required --
JUSTICE SCALIA: They were required to attend.

MR. KNEEDLER: They were required to be there if the classroom teacher decided to let them go out there, but they were under school supervision at that time.

JUSTICE SOUTER: Were they ever told what they were supposed to do in the sense did the school ever say, we are letting you out on the street to celebrate the Olympics and to do only that? Was, was there an object to this release from the school building that was ever conveyed?

MR. KNEEDLER: If I may, I don't think there's any question that he knew in advance that this was about the Olympics. That's why he made the sign. And they were released to go out and watch the torch go by. He hasn't raised any question of notice or due process concerns.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Kneedler.
Important Questioning of the Respondent:
MR. MERTZ: Mr. Chief Justice and may it please the Court: This is a case about free speech. It is not a case about drugs.

CHIEF JUSTICE ROBERTS: It's a case about money. Your client wants money from the principal personally for her actions in this case.

MR. MERTZ: He does have a damages claim against the school district and the principal, but that's by no means his chief object here. The overwhelming object is to assert his free speech --

JUSTICE KENNEDY: Well, would you waive damages against this principal who has devoted her life to the school, and you're seeking damages for her for this sophomoric sign that was held up?
MR. MERTZ: We are certainly willing to negotiate a minimum settlement of damages. That is not the object here.

CHIEF JUSTICE ROBERTS: But there's a broader issue of whether principals and teachers around the country have to fear that they're going to have to pay out of their personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school's educational mission.

MR. MERTZ: That is indeed a legitimate fear, Your Honor, and we believe the existing law takes care of it by requiring before qualified immunity can be breached that there be a demonstration that under the existing law at the time available to her --

CHIEF JUSTICE ROBERTS: And you think it was clearly established that she had to allow a student at a school- supervised function to hold a 15-foot banner saying "Bong Hits 4 Jesus"?
MR. MERTZ: I think it was clearly established at the time, Your Honor, that a principal could not engage in viewpoint censorship of a nondisruptive expression, under both Ninth Circuit law and this Court's law. The case had --

JUSTICE SOUTER: Does that, does that general statement that you just made apply to all circumstances in which a student-teacher relationship might be involved? For example, in the course of teaching a class in Shakespeare would your rule prevail?

MR. MERTZ: The rule on qualified immunity?

JUSTICE SOUTER: Yes, the general rule which the teacher is supposed clearly to have known here. For example, in the Shakespeare class, kid doesn't, doesn't say anything. He doesn't yell or scream or even raise his hand. He just holds a little sign in the Shakespeare class that says "Bong Hits 4 Jesus." As I understood the general rule that you said the teacher was bound to know here, the teacher I suppose would be required or the school would be required to tolerate that sign in the Shakespeare class; is that correct?

MR. MERTZ: I believe the analysis would be the Tinker analysis in terms of substantial disruption of the lesson.

JUSTICE SOUTER: Well, would there be a substantial disruption?

MR. MERTZ: It would all depend on the circumstances. My guess is that if it were simply passively --

JUSTICE SOUTER: If the kids look around and they say, well, so and so has got his bong sign again -- (Laughter.)

JUSTICE SOUTER: -- they then return, they then return to MacBeth. Does the -- does the, does the teacher have to, does the school have to tolerate that sign in the Shakespeare class?

MR. MERTZ: I believe that in circumstances where it is a substantial distraction --

JUSTICE GINSBURG: Can't it just say no signs when you're supposed to be learning?

MR. MERTZ: Your Honor, I think the answer is yes if they had a content-neutral rule prohibiting signs in school. I believe that would be --

CHIEF JUSTICE ROBERTS: But can't the school decide that it's part of its mission to try to prevent its student from engaging in drug use and so that it's going to have a viewpoint on drug use and that viewpoint is going to be that it's opposed to it and so that it takes a particular view with respect to signs that in their view seem to encourage drug use?

MR. MERTZ: Certainly it is within the school's mission to discourage drug use. Certainly it has many tools to allow it to get its own viewpoint -- certainly it can -- it does not need to provide a forum in the school itself for students with a contrary viewpoint. But when a student is basically on his own time, whether it's outside of school --

CHIEF JUSTICE ROBERTS: So your position would be different if this were in the student gym and they were having a discussion. There was a program to discourage drug use and he held up his sign; you would say it would be all right to take down the sign inside the school gym?

MR. MERTZ: No, I'm not so sure.

CHIEF JUSTICE ROBERTS: So it doesn't matter that this is outside. It matters on the content of the sign, not the location?

MR. MERTZ: Well, what matters is whether there is a substantial disruption of what the school is trying to achieve legitimately, whether it's a classroom lesson or a lesson on drug use.

JUSTICE SCALIA: Well, but the school has -- the school has a program, an anti -drug program that shows movies, it brings in policemen and social workers to preach against drug use and you're saying that -- never mind unfurling a banner. You're saying that it has to let students contradict this message it's trying to teach, to walk around, you know, with a button that says "Smoke Pot, It's Fun."

MR. MERTZ: I believe, Your Honor --

JUSTICE SCALIA: Does the school have to do that?

MR. MERTZ: I believe, Your Honor, that a nondisruptive pin, badge, whatever you want to call it, would have to be tolerated. However, they would not have to tolerate a student who interrupts a anti-drug presentation.

JUSTICE SCALIA: But the school, even though it is trying to teach one point of view, can allow students to come in and undermine that point of view, assuming that it's legitimate to teach that point of view? It can allow students to come in and undermine what it's trying to teach?

MR. MERTZ: I think that --

JUSTICE SCALIA: And that is not disruption in your view?

MR. MERTZ: I think they cannot prevent presentation of a contrary viewpoint as long as it is done in such a way that it doesn't interfere with the school's own presentation of its viewpoint.

JUSTICE KENNEDY: Can the student be allowed to wear a button that says "Rape Is Fun"?

MR. MERTZ: No, I don't think so --


MR. MERTZ: There is a distinction there.


MR. MERTZ: Because when you're talking about hate speech, speech that advocates violence, then you're in another category of speech. There has been general recognition --

JUSTICE SCALIA: Nonviolent crimes are okay, it's only violent crimes that you can't, you can not promote, right? Right?

MR. MERTZ: I think there is a --

JUSTICE SCALIA: "Extortion Is Profitable," that's okay?

MR. MERTZ: Well --

JUSTICE SCALIA: This is a very, very, with all respect, ridiculous line. I mean, I can understand you're saying you cannot promote things that are unlawful, but to say, oh, it's only violent, where do you get that line from, only violent unlawful acts?

MR. MERTZ: No, I'm not saying only violent unlawful acts. But this is a case where if you look at it in the context of what was going on in the State at the time, where there was an active public debate on marijuana policy, on marijuana for medical use, marijuana for personal use, so it's --

CHIEF JUSTICE ROBERTS: So it's a political -- even assuming it's a political issue, the question is whether the school has to say our classrooms, our field trips, our sponsored and supervised activities are a forum for that debate?

MR. MERTZ: I believe it does not have to if being a forum would disrupt the school's own educational program and --

CHIEF JUSTICE ROBERTS: And disruption does not include undermining the message they want to send? It has to be some type of physical disruption. But undermining the message they want to send, they can't make the judgment that that's not allowed?

MR. MERTZ: Preventing a contrary viewpoint from being expressed, that we --

JUSTICE BREYER: Yes, but you rephrased it that way, but what actually happened is the principal looks across the street, a 15-foot banner goes up at what's supposed to be a school event with everybody together in a single place, and it says a joke, it makes a joke out of drug use. The principal thinks of course adolescents and post-adolescents sometimes like to test limits, and if the kids go around having 15-foot banners making a joke out of drug use that really does make it a little tougher for me to convince the students at this school not to use drugs, and particularly putting up 15-foot banners. I don't know why everybody wants to get away from that because I think you would have had a very different case if in fact it had been a whisper or if it had been a serious effort to contest the drug laws. It wasn't either. It was a joke. It was a 15-foot banner. We have the message plus the means plus the school event.
Now, what's your response?

MR. MERTZ: My response, Your Honor, is that, first of all, a 14-foot banner.

JUSTICE BREYER: That's an excellent response, I think. (Laughter.)

MR. MERTZ: That was just a preliminary. In fact, what it was was a person displaying this banner in a quiet, passive manner that didn't interfere with anybody's observation.

JUSTICE BREYER: I conceive that interference consists of it's pretty hard to run a school where kids go around at public events publicly making a joke out of drugs. That's what his thought is. Now, I don't think he has to be able to read content discrimination, viewpoint discrimination, time-place. He doesn't know the law, the principal. His job is to run the school. And so I guess what I'm worried about is a rule that would -- is on your side, a rule that takes your side; we'll suddenly see people testing limits all over the place in the high schools. But a rule that against your side may really limit people's rights on free speech. That's what I'm struggling with. Now, I want some help there and I'm worried about the principal.

MR. MERTZ: I believe the answer is that the Tinker case as we understand it struck a very wise compromise between allowing school officials to have complete discretion to suppress student speech in order to maintain what they conceive of as their individual mission and the student's right to speak in a nondisruptive manner. The speaker -- the Tinker case has stood the test of time for 40, almost 30 years and, although --

JUSTICE SCALIA: Well, you can say that, but the subsequent cases seem to me to try to cut back on it. I mean, it stood the test of time in the sense that it hasn't been overruled, but --

MR. MERTZ: There have been some narrow exceptions to it in subsequent cases, of course, the Frazier and the Kuhlmeier cases. But the basic, the heart of it, the requirement that the school demonstrate that substantial disruption before it can engage in suppression of --

JUSTICE SCALIA: I think we're using disruption in two different senses here and we should probably separate the two. One sense is disrupting the class so that whatever is being taught can't be taught. But you're also using it in the sense of undermining a general message that the school is trying to get across: Obey the law, don't use drugs, whatever. Maybe we should have a different word for -- the first is disruption. Disruption is a, is a funny word for the second. Let's called it undermining instead. Now, you think both of them, however, are bad and both of them can be a basis for suppressing the speech?

MR. MERTZ: If I understand your question correctly, the second of them might better be called allowing competing viewpoints.

JUSTICE SCALIA: So you think undermining is perfectly okay? You would never consider undermining to be disruption and therefore bad?

MR. MERTZ: I think undermining in the sense of preventing impeding the school from delivering its own message --

JUSTICE SCALIA: Okay, but only that.

MR. MERTZ: -- would be substantial disruption.

JUSTICE SCALIA: Right after a class on drugs, he can be standing there in the hall and say: This class was ridiculous, drugs are good for you, I use them all the time, I urge all of you. That's perfectly okay? That's not undermining?

MR. MERTZ: I believe that is the kind of speech --
JUSTICE SCALIA: That's not disruption?

MR. MERTZ: -- that we must tolerate no matter how unwise it is.

JUSTICE GINSBURG: But couldn't the school, couldn't the school board have a time, place, or manner regulation that says you're not going to use the halls to proselytizer for your cause, whatever it may be?

MR. MERTZ: I believe that's correct.

JUSTICE GINSBURG: You could have reasonable rules of decorum for what goes on inside the school building.

MR. MERTZ: Right.

CHIEF JUSTICE ROBERTS: Does the school have to be completely neutral in that respect? Does it have to punish who says that was a good program, I'm not going to use drugs, and you shouldn't either, because he's taking position on a public issue?

MR. MERTZ: I think a content neutral, content neutrality is critical here, and if the school wants to allow anti-drug comments, messages, then it has an outside of the official forum --

CHIEF JUSTICE ROBERTS: Where does that notion that our schools have to be content neutral -- I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs. They have to be neutral on whether you should use drugs or not?

MR. MERTZ: Content neutrality goes to what speech is suppressed or punished. As far as the school delivering its own message, there is no requirement of equal time or that it be neutral. It's got its own viewpoint in the case of drugs, a viewpoint that almost all of us agree with, and it should be able to espouse

JUSTICE SCALIA: A school isn't an open forum. A school isn't there for everybody to teach the students whatever he wants. It's there for the teachers to instruct. And you're turning it into an open forum. If the school says, addresses one issue, everybody else has to be able to address that issue.

MR. MERTZ: I don't believe that's the case at all, Your Honor.

JUSTICE SCALIA: That's not my vision of what a school is.

MR. MERTZ: In the classroom delivering the prescribed messages, in the school assemblies, when the school wishes to present a particular message, that's one case. However, in the lunchroom, outside in recess, across the street, that is a quintessentially open forum where it would not be proper, I think, to tell students you may not mention this subject, you may not take this position.

JUSTICE KENNEDY: But do you concede that there was some right of school control for what was going on across the street?

MR. MERTZ: No. Actually our primary position on that is that he was in a public place at a public event among public people --

JUSTICE KENNEDY: If kids were throwing bottles and injuring passers by, the principal had no right or duty to go over there and stop it?

MR. MERTZ: Oh, I think if they were engaging in an act of hooliganism --

JUSTICE KENNEDY: Well, that's because the school has a right of control.

MR. MERTZ: There is a distinction here. This young man had not been in school today, had not been an campus, was not in any class that was released to --

CHIEF JUSTICE ROBERTS: Why did he go where he went?
MR. MERTZ: Pardon?

CHIEF JUSTICE ROBERTS: Why did he choose that location to unfurl his banner?

MR. MERTZ: He explained because it was the only place where he actually knew the route of the relay.

JUSTICE BREYER: But I mean, that's -- I have, I guess his note, you accept this with what the teacher said. The entire class went to view the relay. Individual students -- this is at 9:30 in the morning. They were not given the option of remaining in class, nor were they released to do as they pleased. They were to watch the relay with the rest of the student body, either just in front of the school or just across the street -- that's me, not them -- and then return directly to their classrooms, which I guess the school did. So it sounds like you're going to one place, stand together, behave yourselves, watch the relay, and the teachers will be there and take you back to class. Now is there something else in the record that suggests something different?

MR. MERTZ: There is a major dispute on that point, Your Honor. We presented several affidavits that showed individual teachers --

JUSTICE BREYER: Just tell me where to look. Where are the conflicting affidavits? I'm just reading from page 51 of the joint appendix. I didn't know there was a dispute.

MR. MERTZ: It would be on pages 32, 34, 36.

JUSTICE BREYER: Okay, I'll look at those. Another somewhat minor point. Can I ask you another point about the record? I'll read those.

MR. MERTZ: Okay. Can I finish the description of what actually happened? According to the students, for those who were released from class, there was no requirement for staying on campus, and many of them did not stay on campus. No requirement for --

JUSTICE BREYER: No, they went across the street.

MR. MERTZ: Some of them did. Some went down --

JUSTICE BREYER: Was there any -- there was no requirement, they didn't have to go across the street or stay on campus, they could wander off distantly.

MR. MERTZ: They could, and many of them did.


MR. MERTZ: And there was no requirement that they stay together, no requirement that they do anything in particular. They --

JUSTICE SCALIA: I had to watch -- not even watch the parade, no requirement they watch the parade? They were released in order to watch the parade.

MR. MERTZ: That was the intent, obviously, for those released.
JUSTICE SCALIA: The intent, it was the direction.

MR. MERTZ: But --

JUSTICE SCALIA: It was not only the intent, it was the direction.

MR. MERTZ: Actually it was not. According to these student affidavits, they were simply released and said, you can go watch --

JUSTICE GINSBURG: Was there any fact finding on that? You referred to affidavits.

MR. MERTZ: No. It was decided on cross motions for summary judgment in the district court, and there were no findings, actually no factual findings at all, and certainly nothing on that particular point.

JUSTICE BREYER: Can I ask you another record point, just so I know where to look?

JUSTICE BREYER: You've also asked for an injunction that would require expunging his 5-day suspension from his record.

MR. MERTZ: Correct.

JUSTICE BREYER: 10 days. Well, 10 or 5, unclear. I noticed the superintendent of schools on page 66A when he's reviewing this, what he says is, "Joseph contends that all his behavior is excusable because he was exercising his free of speech right. Even if I were to concede his speech across from the high school is protected, which I do not, the rest of his behavior warranted the suspension." And then he says, "And I'm cutting it from 10 days to 5. So given that, if you win, suppose you were to win, and you -- that it is protected and so forth -- then would you concede or not concede the suspension, the 5 days, it's over, it still stands, I don't care about the expungement or not?

MR. MERTZ: The -- whether it remains on the record, anything that remains on his record is obviously much more --

JUSTICE BREYER: No, but I'm asking that you think about it. I'm putting you on the spot.

MR. MERTZ: In that case, I missed the point of your --

JUSTICE BREYER: I want to know what the superintendent said. As I read it is, he says, look, I don't care if this was protected or not. I'll give you that. It's protected. But the rest of his behavior, the way he treated the principal, what he did, the reluctance, et cetera, et cetera, that warrants a suspension too, and I'm cutting it from 10 days to 5. So it sounds to me as I read it that the teacher is saying even if you're right, he's still suspended for 5 days. That's what the superintendent says. Now suppose you win your point that you're interested in winning, which you may not or you may. Are you still then going to pursue this case on the 5 days, that that should be erased?

MR. MERTZ: If the only thing left were discipline because he was tardy that day, was -- didn't divulge the names of the other people holding the banner, that sort of thing, we couldn't --


JUSTICE BREYER: You couldn't what? I didn't hear the last part of what you said. You just got to the point of --

MR. MERTZ: Of answering the question.

JUSTICE BREYER: Yes. What's the answer?

MR. MERTZ: Those things wouldn't manner anymore.

JUSTICE BREYER: So you would not pursue it?

MR. MERTZ: Correct.

CHIEF JUSTICE ROBERTS: Can we get back -- I'm sorry.


CHIEF JUSTICE ROBERTS: Can we get back to what the case is about. You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it's disruptive. But then under Frazier I can do something if it interferes with the basic mission, and under Kuhlmeier I've got this other thing. So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it.

MR. MERTZ: Mr. Chief Justice, there are two different time points we have to talk about. There's the heat of the moment out there on the street, but then later back in the office when she actually decided to levy the punishment after she had talked to him, after she heard why he did it and why he didn't do it, after she had had a chance to consult with the school district's counsel. At that point in the calmness of her office, then she should indeed have known it. And she did testify that she had taken a master's degree course in school law in which she studied Kuhlmeier and Frazier and Tinker. So --

CHIEF JUSTICE ROBERTS: And so it should be perfectly clear to her exactly what she could and couldn't do.


JUSTICE SCALIA: As it is to us, right? (Laughter.)

JUSTICE SOUTER: I mean, we have had a debate here for going on 50 minutes about what Tinker means, about the proper characterization of the behavior, the nonspeech behavior. The school's terms in dealing with the kids that morning. The meaning of the, of the statement. We've been debating this in this courtroom for going on an hour, and it seems to me however you come out, there is reasonable debate. Should the teacher have known, even in the, in the calm deliberative atmosphere of the school later, what the correct answer is?

MR. MERTZ: We believe at the very least she should have known that one cannot punish a nondisruptive holding of a sign because it said something you disagreed with.

JUSTICE KENNEDY: Of course I disagree with the characterization on disruptive. It was completely disruptive of the message, of the theme that the school wanted to promote. Completely disruptive of the reason for letting the students out to begin with. Completely disruptive of the school's image that they wanted to portray in sponsoring the Olympics.

MR. MERTZ: Well, they weren't sponsoring the Olympics, they weren't even sponsoring this event actually. They simply let the students out to watch it. That was --

JUSTICE KENNEDY: Some of the students were carrying the torch and the band was playing in the parade.

MR. MERTZ: A few of the student -- a few of the relay runners were from the school and had been allowed to skip school because of that, and the pep band played as it went by. I do not believe that made the torch relay a school event. The best that can be said for them is that they let the students watch it with the concurrence of individual teachers, and that that attendance was a school sanctioned attendance. Now whether that allows them to then engage in this kind of punishment for speech by a student who was not even among those released, who is standing --

JUSTICE GINSBURG: Now you said that in your brief, and I couldn't understand that somehow you got mileage out of his being truant that morning. Would the case have come out differently, would you be making any different argument if he got to school on time and was released with the rest of them? Does the case turn on the fact that he was late to school that day?

MR. MERTZ: We believe it would be a closer question, but the fact that he was not there in school today, and intentionally was not there today, turns this into a pure free speech case where you have a citizen in a public place in a public event who was not acting as a student.

JUSTICE GINSBURG: So he's not a school child, he would be playing hooky?

MR. MERTZ: Because he was playing hooky because he chose not to be there, because he was not part of the class.

JUSTICE GINSBURG: Even though the law required him to be there?
MR. MERTZ: That's right.

JUSTICE SCALIA: He wasn't playing hooky. He showed up late, that's all, right? I mean, he actually came and joined his classmates at an event that he knew was an event that the school told the classes to go to.

MR. MERTZ: He joined --

JUSTICE SCALIA: As far as I'm concerned, he just showed up late.

MR. MERTZ: He joined a public crowd on a private side -- public sidewalk in front of private homes. The crowd happened to have some other students in that school there.

JUSTICE GINSBURG: Where did he go immediately after? He went to the school building for whatever it was, the third period of the day.

MR. MERTZ: Yes. The principal instructed him to do so and he did.

JUSTICE KENNEDY: So under your view, if the principal sees something wrong in the crowd across the street, had to come up and say now, how many here are truants and how many here are -- I can't discipline you because you're a truant, you can go ahead and throw the bottle. (Laughter.)

MR. MERTZ: No, I don't think she needs to do that in the heat of the moment. But later on once she's discovered the true facts, then at that point I think she loses a basis for punishing him as a student if he was not there as a student.

JUSTICE SCALIA: Because you're both a truant and disrupter, you get off. (Laughter.)

JUSTICE SCALIA: Had you been just a disrupter, tough luck.

MR. MERTZ: Well, it may well be that he could have been punished for being truant, but of course that's not why we're here. He was punished for displaying, for the content of the sign he was displaying in a public place as a private citizen.

JUSTICE SCALIA: Who were the people that helped him hold up his flag? Were they not classmates of his?

MR. MERTZ: Most of them were classmates; at least one was not a student.

JUSTICE SCALIA: Did he not know that these classmates were there at a public event that was sponsored, not sponsored, but to which the school had directed the students to go?

MR. MERTZ: I'm sure he did know.

JUSTICE SCALIA: So it seems to me it's like joining a school trip at the zoo, you know. You -- you don't make it to the -- to the school, but you drive there yourself and then join the class as it's going through the zoo. It seems to me he's in school.

MR. MERTZ: A better analogy might be if he had gone on his own time to the zoo and was engaging in some expressive act, and there happened to be a school group there at the same time, could the teacher with that group then have disciplined him for what he was doing?

CHIEF JUSTICE ROBERTS: That gets back to the point I was trying to make earlier. He came here because it was the school event, the school sponsored activity. He could have gone anywhere along the route. He knew that it was coming by the school, he knew that they were going to be, the students were going to be released to see it. He went to join up with the school even if he were truant that day.

MR. MERTZ: No, Your Honor. I believe that's incorrect. There is nothing in the record that even suggests that he went there in order to join up with schoolmates or in order to be near the school. He says, in fact, he intentionally tried to avoid the school because he thought that that way he could avoid the school jurisdiction for his --

JUSTICE SCALIA: You think he could have been marked absent for the whole day because he didn't intend to be part of the school group afterwards? I mean, suppose there's a suspension of so much for half a day truancy, and so much more for a whole day's truancy. And he shows up and he says, oh, you can't -- you have to hold me for a whole day's truancy because I didn't intend to be in school. I was in school but I didn't intend to be there.

MR. MERTZ: I think it would all depend on whether he --

JUSTICE SCALIA: That doesn't make any sense to me. Does it depend on his intent, whether or not he intended to be a truant that afternoon?

MR. MERTZ: I think that would depend on the fact of whether he was a truant that afternoon.

JUSTICE SCALIA: He was either in school or he wasn't in school.

MR. MERTZ: In the morning he wasn't in school.

JUSTICE SCALIA: In the afternoon he either was or he wasn't.

MR. MERTZ: In the afternoon he was.

JUSTICE SCALIA: And the question is whether joining the school group, intentionally joining the school group, going there because the school group was there, whether that places him in school.

MR. MERTZ: As a hypothetical, if he were intentionally joining a school group, I would have to say that puts him within whatever jurisdiction the school has.

JUSTICE BREYER: Why does it matter? That is, why doesn't the -- you're suing the teacher or the principal and why wouldn't the issue be what that principal really reasonably thought the situation was? I mean, if a principal reasonably thought he was part of the school group, if the principal reasonably thought that this was a school outing, if the principal reasonably thought that students are staying together, why wouldn't that just be the ground on which you'd take the case, we should take it that way, because the principal reasonably thinks?

MR. MERTZ: As far as qualified immunity, I think that's correct, if she had a reasonable belief.

JUSTICE BREYER: But even on the merits?

MR. MERTZ: On the merits I don't think so, because if he was not in fact there as part of a school group --

JUSTICE BREYER: Even if the principal couldn't tell him to take down the manner even if she thought he was part of the school group reasonably, if he really wasn't?

MR. MERTZ: I do not believe there's anything in the law that allows a principal to convert a pure free speech exercise into a school exercise because it's --

JUSTICE SCALIA: I thought you were going to appeal to the calm of her office the next day. I thought that was going to be your answer to my question. Whatever she thought at the time, she didn't think it later.

JUSTICE GINSBURG: May I ask to you clarify one thing. I initiated this line of questioning when I said I was surprised that your brief made such a big deal that he was late to school. You would still be making the argument about the free speech right if he had diligently showed up for his math class first period in the morning, gone out with the others, and had his banner to unfurl when the torch came by?

MR. MERTZ: That is correct. We have two independent bases for defending him here. One is the pure free speech in a public place argument. That's the one that hinges on the fact that he was not among the released students. The other argument, which we believe in equally, is that even if it were a on-campus or on an extension of campus like a field trip, then under Tinker because it was not disruptive they cannot punish it.
My time is up. I thank the Court.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Mertz.

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