Published Online: April 18, 2006
Published in Print: April 19, 2006, as District’s Discipline Over Drug Banner Violated Student’s Rights, Court Says

Law Update

District’s Discipline Over Drug Banner Violated Student’s Rights, Court Says

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A banner that a Juneau, Alaska, student raised across the street from his high school may have had a pro-drug slogan, as school officials contend, but the principal violated the student’s right to free speech when she snatched the banner away and later suspended him for 10 days, a federal appeals court has ruled.

Joseph Frederick was 18 in 2002, when he stood on the sidewalk opposite Juneau-Douglas High School and held up the “Bong Hits 4 Jesus” banner. He stood among other, sometimes boisterous students as runners carrying the Olympic torch passed by as part of a community event.

Mr. Frederick said afterward that he thought the banner’s message was meaningless and humorous, and that he wanted to attract the attention of television cameras.

Principal Deborah Morse said she grabbed the banner because it contradicted the school’s anti-drug messages, according to court papers in Mr. Frederick’s lawsuit against Ms. Morse and the 5,300-student Juneau school district.

But on March 10, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously for Mr. Frederick.

U.S. Circuit Judge Andrew J. Kleinfeld said that the case falls squarely under the U.S. Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District, which upheld students’ right to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

The judge distinguished Mr. Frederick’s case from Bethel School District No. 403 v. Fraser, a 1986 Supreme Court decision that backed school officials’ authority to punish a student’s speech at a school assembly that was laced with sexual innuendo, because the speech, in the Supreme Court’s words, “would undermine the school’s basic educational mission.”

Mr. Frederick’s speech was not “vulgar, lewd, and obscene” and did not cause the crowd’s disruptive behavior, Judge Kleinfeld said.

“There has to be some limit on the school’s authority to define its mission in order to keep Fraser consistent with the bedrock principle of Tinker that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the judge wrote.

The court also held that the principal could be held personally liable in the lawsuit.

In a notice on its Web site, the Juneau district said the decision would make it “much more difficult” to enforce its policies restricting student speech that advocates illegal drug and alcohol use. The district has petitioned the 9th Circuit court to rehear the case before a larger panel of judges.

Vol. 25, Issue 32, Page 13

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