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Supreme Court Accepts Case on Student Free Speech

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The U.S. Supreme Court today agreed to decide a potentially significant case on student freedom of speech. The justices accepted an appeal by an Alaska school district in a case over whether it can discipline a student who displayed a pro-drug banner at a school-sponsored event.

The court accepted the appeal in Morse v. Frederick (Case No. 06-278) after considering it at five separate private conferences since October, a somewhat unusual pattern of internal debate over a particular case.

The high court will review a federal appeals court ruling from earlier this year that a high school principal in Juneau violated the student’s First Amendment right to free speech when she snatched the banner away and later suspended him for 10 days.

The case stems from an incident that took place in 2002, when Joseph Frederick, then 18, 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 of this year, 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 fell squarely under the 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 9th Circuit court also held that the principal could be held personally liable in the lawsuit.

Arguments in February

In its appeal to the Supreme Court, the Juneau district said the decision would make it more difficult to enforce its policies restricting student speech that advocates illegal drug and alcohol use.

“School officials are now faced with a confusing, if not alarming, message,” the district’s brief said. “They are responsible for teaching students about the dangers of illegal drugs. But they also must tolerate pro-drug messages in the face of threats of draconian civil-damages lawsuits. This is wildly wrong. And this court should say so.”

Kenneth W. Starr, a former U.S. solicitor general and the special counsel in the Whitewater investigation during the Clinton administration, is representing the Juneau district in the case.

The National School Boards Association also filed a brief urging the Supreme Court to accept the case.

The case “presents this court with a critical opportunity to review the scope of student free speech rights in the nation’s public schools, which it has not done in 20 years,” said the NSBA brief, which was joined by the American Association of School Administrators.

The court ordered an expedited briefing schedule for the case, and indicated it will be argued in late February.

Vol. 26

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