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Published in Print: July 18, 2007, as Ruling in ‘Bong Hits’ Case Seen as Leaving Protection For Students’ Free Speech

Ruling in ‘Bong Hits’ Case Seen as Leaving Protection For Students’ Free Speech

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The U.S. Supreme Court’s first major ruling in two decades on student speech was a decisive victory for schools and administrators in the case over a student’s display of a “Bong Hits 4 Jesus” banner. But the nuances in the justices’ opinions leave significant protection for more serious political and social expression by students.

How the court’s June 25 ruling plays out for the latest generation of student-speech disputes, including those stemming from the culture wars over religious expression and gay rights, may take years to figure out, legal experts say. It was only days, though, before lower courts took note of the decision in other student-speech disputes.

“The First Amendment is a little bit wounded right now, but it has survived,” Douglas K. Mertz, a cooperating lawyer with the American Civil Liberties Union, said right after the decision.

Mr. Mertz had argued before the Supreme Court on behalf of Joseph Frederick, who was a senior at Juneau-Douglas High School in January 2002 when he and other students unfurled the banner at an Olympic-torch relay outside the school in Juneau, Alaska.

Deborah Morse, then the principal of Juneau-Douglas High, was upset by the banner’s reference to drug paraphernalia. Ms. Morse asked Mr. Frederick and the others to drop the banner, according to court papers. When Mr. Frederick refused, he was suspended by the principal for 10 days, an action upheld by administrators and the board of the 5,000-student district.

Francisco M. Negrón Jr., the general counsel of the National School Boards Association, said the decision in Morse v. Frederick (Case No. 06-278) showed the court “is really recognizing the realities with which educators are faced.”

Key Opinion by Alito

“Educators and principals are happy that they won’t have to be second-guessed” in disciplining students over drug-related messages, said Mr. Negrón, whose association had filed a friend-of-the-court brief on the side of the Juneau district and Ms. Morse.

Education and the Supreme Court: The 2006-07 Term

The U.S. Supreme Court decided an unusually large number of cases involving public and private schools, teachers’ unions, and education organizations in the term that ended June 28.

Race in Public Schools
Parents Involved in Community Schools v. Seattle School District No. 1 (Case No. 05-908)
Meredith v. Jefferson County Board of Education (No. 05-915)

Ruled 5-4 to strike down two school districts’ race-conscious student assignment plans as a violation of the 14th Amendment’s equal-protection clause. The majority opinion by Chief Justice John G. Roberts Jr. said the districts did not meet their burden of showing that their interest in maintaining racial diversity justifies using racial classifications in making school assignments. Justice Anthony M. Kennedy provided the fifth vote in a concurring opinion in which he agreed to striking down the two plans at issue, but he would not go as far as the chief justice in limiting schools’ use of race. Justice Kennedy said that schools are free to address unequal education opportunities by devising race-conscious measures that address the problem in a general way and without treating each student differently based solely on an individualized focus on race.

Student Speech
Morse v. Frederick (No. 06-278)

Upheld the suspension of a student who displayed a banner with the message “Bong Hits 4 Jesus” at a parade that passed by the student’s high school. Five justices joined an opinion by Chief Justice Roberts that the parade was a school-sponsored event and the banner could be interpreted as advocating illegal drug use in contradiction of district policies that discouraged drug abuse. The majority opinion was tempered by a concurring opinion signed by Justices Kennedy and Samuel A. Alito Jr. that stressed the ruling was meant to be limited to speech advocating illegal drug use and was not meant to allow restrictions on student speech on political or social issues.

Athletics/Private School Speech
Tennessee Secondary School Athletic Association v. Brentwood Academy (No. 06-427)

Unanimously upheld a state high school athletic association’s rules against student recruiting, which were challenged on First Amendment free-speech grounds by a private school. The school had argued that the association’s enforcement of its rules inhibited the school’s ability to communicate with prospective students. Justice John Paul Stevens wrote for the court that an athletic group’s interest in enforcing its rules sometimes warrants curtailing the speech of its voluntary members.

Special Education
Winkelman v. Parma City School District (No. 05-983)

Ruled unanimously that parents have rights under the Individuals with Disabilities Education Act and thus may represent themselves in federal court without the assistance of a lawyer. The justices split 7-2 over the extent of those rights. Justice Kennedy, writing for the majority, said the IDEA grants parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free, appropriate public education for their child. The partial dissenters would only allow parents to represent themselves when they sought reimbursement for private school expenses or for procedural claims.

Teachers’ Unions
Davenport v. Washington Education Association (No. 05-1589)

Ruled unanimously that a state does not violate the First Amendment when it requires public-employee unions, such as the teachers’ union in Washington state, to get the consent of nonmembers before spending their representation fees for election-related purposes. Justice Antonin Scalia wrote for the court that Washington state’s so-called opt-in requirement was a “reasonable, viewpoint-neutral limitation” on the power of public-sector unions to acquire and spend the money of government employees.

Impact Aid Act
Zuni Public School District No. 89 v. Department of Education (No. 05-1508)

Voted 5-4 to uphold the U.S. secretary of education’s method for calculating when states may offset federal aid to school districts that educate children living on or near federal lands and installations. Under the Impact Aid Act, states with equalized funding systems may offset a portion of the amount that districts receive in federal impact aid. The court, in an opinion by Justice Stephen G. Breyer, backed the secretary’s methodology of taking student-enrollment data into account in figuring the top and bottom 5 percent of districts by wealth, which are then disregarded in the equalization analysis.

Challenge to Faith-Based Initiative
Hein v. Freedom From Religion Foundation (No. 06-157)

Ruled 5-4 that taxpayers did not have legal standing to challenge under the First Amendment’s establishment-of-religion clause certain spending and activities by the Bush administration for its Faith-Based and Community Initiatives. The challenged activities included the formation of offices for such initiatives in the White House and other federal agencies, including the Department of Education, as well as administration-sponsored speeches and conferences that promoted the efficacy of faith-based programs in providing social services. No opinion commanded a majority, but the plurality opinion by Justice Alito said that a taxpayer’s interest in seeing that executive-branch funds were spent in accordance with the U.S. Constitution was too attenuated to result in a personal injury that would give rise to legal standing.

While the judgment in the case was 6-3, a five-justice majority emphasized that schools have the authority to regulate drug-related messages on public school campuses.

“The special characteristics of the school environment, and the governmental interest in stopping student drug abuse … allow schools to restrict student expression that they reasonably regard as promoting illegal drug use,” Chief Justice John G. Roberts Jr. said in the majority opinion.

The chief justice rejected Mr. Frederick’s argument that the case did not involve school speech at all because the banner was displayed on a sidewalk across from Juneau-Douglas High. He noted that students had been released from class during school hours to see the Olympic-torch relay passing by their school, under the supervision of teachers and administrators.

His opinion was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr.

Justice Alito wrote a significant concurring opinion, joined by Justice Kennedy, that helped narrow the majority’s holding by stressing the context of the banner’s perceived drug message.

Justice Alito said he joined the decision on the understanding that it “provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

Justice Stephen G. Breyer filed an opinion in which he concurred in the outcome. He said he would have ruled for the district purely on the basis of the principal’s immunity, and he would have avoided the First Amendment question.

Justice John Paul Stevens, writing a dissent joined by Justices David H. Souter and Ruth Bader Ginsburg, said that while the banner was a “nonsense” message, “the court does serious violence to the First Amendment in upholding—indeed lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed.”

But Justice Stevens’ opinion agreed with the majority that the principal did not deserve to face personal liability in the case, as the appellate court had ruled.

Kenneth W. Starr, the former U.S. solicitor general who represented Ms. Morse and the Juneau school district before the Supreme Court, said he agreed that Justice Alito’s concurrence narrowed the decision’s free-speech implications.

“Justices Alito and Kennedy expressed very strong pro-student-speech views,” Mr. Starr said in an interview. “That means that another [student-speech] case might be decided differently.”

Widely disparate groups that had filed friend-of-the-court briefs on Mr. Frederick’s side agreed.

“There appears to be a clear majority in favor of student religious speech being protected in schools,” said Casey Mattox, a lawyer with the Christian Legal Society, in Springfield, Va., which often fights public school restrictions on student religious expression.

Gay-rights groups had also supported Mr. Morse, and they were in unison with religious-rights groups in welcoming the narrowness of the decision.

“It feels to me like this decision would provide absolutely no justification to limit speech about sexual-orientation issues” in public schools, said Jon W. Davidson, the legal director of the Lambda Legal Defense and Education Fund, in New York City.

Tigger and a T-Shirt

In his majority opinion, Chief Justice Roberts repeated the famous line from the court’s 1969 decision in Tinker v. Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

That case upheld students’ right to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

Early this month, a state trial judge in California cited the Morse decision’s “reconfirming” of Tinker in a preliminary ruling halting a strict school dress code that had ensnared a young student wearing the Winnie the Pooh character Tigger on her socks, as well as students wearing pink ribbons for breast-cancer awareness and a T-shirt reading “Jesus Freak.”

“Certain clothing prohibited by the attire policy … did convey a particularized message subject to First Amendment protection,” Judge Raymond A. Guadagni said about the Napa Valley Unified School District’s policy.

And on June 29, the Supreme Court declined to hear an appeal from school administrators over the discipline of Zachary Guiles, a Vermont student who had worn an anti-President Bush T-shirt to school in 2004. A federal appeals court had sided with the student.

Despite the potential similarities, the justices declined to return the appeal from administrators in Marineau v. Guiles (No. 06-757) to the lower court for reconsideration in light of the Morse decision.

PHOTO: Douglas Mertz, a lawyer for former student Joseph Frederick, stands next to the banner at the center of the Supreme Court case.
—Brian Wallace/Juneau Empire/AP

Vol. 26, Issue 43, Pages 27-28

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