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Published in Print: December 13, 2006, as Justices to Hear Student Free-Speech Case

Justices to Hear Student Free-Speech Case

‘Bong Hits 4 Jesus’ banner could be basis for a landmark ruling.

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A case on student freedom of speech that the U.S. Supreme Court has agreed to decide in its current term is potentially far-reaching, not least because it is the court’s first foray into this area of school law in the Internet era.

In accepting the appeal by the Juneau, Alaska, school district, the justices will decide whether a principal violated the First Amendment rights of a student who displayed a pro-marijuana banner at a school-sponsored parade across the street from the student’s high school. The court could clarify whether public school officials may bar students from displaying messages promoting the use of illegal substances, including at school-supervised events away from campus.

And while the speech at issue in Morse v. Frederick (Case No. 06-278) was not itself high-tech, the court’s eventual decision may also bear on school administrators’ authority to regulate other off-campus speech, such as by students on the Internet.

“All these kids are creating Web sites about their school districts, from funny to threatening ones,” said Christopher B. Gilbert, a lawyer at Bracewell & Giuliani, a Houston law firm that represents many districts. “School districts want the Supreme Court to talk about what effect the speech has to have on the school’s program before the school can actually take action based on this speech.”

The justices accepted the case on Dec. 1, after considering it at five separate private conferences since October—an unusual pattern of internal debate on a case.

In January 2002, Joseph Frederick, who was then 18, was in a crowd with other students and onlookers watching a community parade in advance of the Winter Olympics in Salt Lake City that year. They were standing on a sidewalk across the street from the school he attended, Juneau-Douglas High School. As runners carrying the Olympic torch passed by, with television cameras swiveling toward them, Mr. Frederick and some other students held up a banner that read “Bong Hits 4 Jesus.”

Principal Deborah Morse, who was supervising the students with other school faculty, saw the banner and snatched it away from Mr. Frederick, according to court papers. The principal later suspended the student for 10 days.

Ms. 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 the principal and the 5,300-student Juneau school district.

Mr. Frederick said in court papers that he quoted Thomas Jefferson on free speech as Ms. Morse confiscated the banner. He said after the incident that the banner’s message was meaningless and humorous, and that he wanted to attract the attention of the TV cameras.

Last March, 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. (See table below.)

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 disorder that occurred in the crowd before he unfurled the banner, the judge 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,” Judge Kleinfeld wrote.

The 9th Circuit court also found that the principal could be held personally liable in the lawsuit.

‘Silly Commentary’?

In its Supreme Court appeal, the Juneau district said the 9th Circuit decision would make it more difficult to enforce its policies restricting student speech that advocates illegal drug and alcohol use.

Student Expression and the U.S. Supreme Court

The U.S. Supreme Court has agreed to hear a case this term involving a student who was disciplined for displaying a banner declaring “Bong Hits 4 Jesus” at a school sponsored event. Educators—and lower counts—generally look to three rulings by the high court on student expression in the public schools for guidance:

TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969)

The court ruled 7-2 to strike down the Iowa school district’s policy of prohibiting students from wearing black armbands to school to protest the Vietnam War. The students had a First Amendment right to wear the armbands so long as school was not substantially disrupted, the court held. Justice Abe Fortas’ opinion included the famous language that public school students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

BETHEL SCHOOL DISTRICT NO. 403 V. FRASER (1986)

The justices ruled 7-2 that a Washington state school district did not violate the First Amendment rights of a high school student when they disciplined him for giving a speech that was full of sexual innuendo at a student assembly. Chief Justice Warren E. Burger’s opinion for five members of the majority said that for school officials to permit students to engage in “vulgar and lewd speech” such as that at issue “would undermine the school’s basic educational mission.”

HAZELWOOD SCHOOL DISTRICT V. KUHLMEIER (1988)

In a 5-3 decision, the court ruled in favor of a Missouri principal who read a high school newspaper in advance of publication and ordered the deletion of articles on divorce and teenage pregnancy. Justice Byron R. White said for the majority that school officials do not violate the First Amendment when they exercise editorial control over the content of student speech in school-sponsored expressive activities as long as their actions are related to legitimate pedagogical concerns.

“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.

The National School Boards Association had urged the Supreme Court to accept the case.

The appeal “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.

Legal experts said the justices’ eventual decision in the case could affect school districts in several practical areas.

One is the ability of districts to regulate student speech that occurs or originates off campus but in some way affects the school.

A more profound issue, if the banner is considered to be school speech, is a student’s right to comment on marijuana use, in the face of a school anti-drug policy.

The 9th Circuit court said that “it is not easy to distinguish speech about marijuana from political speech in the context of a state where referenda regarding marijuana legalization repeatedly occur and a controversial state court decision on the topic had recently issued.”

“This perspective certainly elevates the student’s speech to something more than silly commentary—possibly to the political speech that is protected under Tinker,” said Joseph C. Beckham, a lawyer and education professor at Florida State University, in Tallahassee.

Several legal experts said the Supreme Court’s decisions in recent years upholding schools’ authority to test certain students for use of illegal drugs provides an inviting avenue for the conservative majority of the justices to support the Juneau district.

“If the banner had said ‘Song Hits 4 Jesus’ rather than ‘Bong Hits 4 Jesus,’ I think the student would win this case no matter what doctrinal frame the court adopted,” said Jamin B. Raskin, a law professor at American University, in Washington, and the author of We the Students, a textbook for young people on their rights.

Mr. Raskin said that for the conservative justices, the “cleanest way to treat this case is that the parade was a direct extension of campus as a result of the presence of school personnel, and that the Tinker principle does not [allow students to] advocate drug use.”

The court could find that the sidewalk was a traditional public forum for speech, Mr. Raskin said, and that “the school has no authority over what students say. This is voluntary extracurricular speech which the school could no more censor than it could a student’s op-ed article in The New York Times.”

Review of Faith Initiative

In another appeal accepted Dec. 1, the justices agreed to decide whether the First Amendment can be the basis for a taxpayer group’s challenge to the Bush administration’s faith-based initiative, which promotes the inclusion of religious organizations in government social-services programs.

A group of Madison, Wis., taxpayers is challenging the legality of the use of congressional appropriations by the White House Office of Faith-Based and Community Initiatives, which President Bush established by executive order after Congress rebuffed his initiative in 2001.

The lawsuit also challenges the faith-based centers that the White House established in several federal agencies, including the Department of Education.

In the federal district court in Madison, the taxpayers claimed that the agencies have run national and regional conferences that have catered to faith-based organizations because of their religious orientation, in violation of the Establishment Clause.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 2-1 last January that taxpayers may sue over a violation of the First Amendment’s prohibition on a government establishment of religion, even if Congress hasn’t specifically allocated money for the challenged program or activity. ("Legal Challenge to Faith-Based Initiative Is Revived," Jan. 25, 2006.)

But the Bush administration, in its appeal to the Supreme Court, said the appellate court’s decision would create “a roving license for any individual citizen to challenge any action of the executive with which he disagrees, as violative of the establishment clause.” The case is Hein v. Freedom From Religion Foundation Inc. (No. 06-157).

The justices have put both cases on a fast track and will likely hear oral arguments in them in February.

Vol. 26, Issue 15, Pages 19-20

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