Rights at Stake in Free-Speech Case
Student-banner fight may shape law on discipline, administrator's liability.
Despite the less-than-weighty incident at its core—the display of a homemade banner emblazoned with “Bong Hits 4 Jesus”—a case that the U.S. Supreme Court will take up next week carries potentially far-reaching consequences for student speech, and for the legal protections of public school educators.
From a sea of controversies over student speech—on T-shirts, in classroom assignments, on Web pages, and in other forms that have conveyed political, religious, or arguably violent or offensive messages—the justices have chosen to review the case of an Alaska high school student who was disciplined for exhibiting the banner. It was a fleeting statement that its creator describes as lacking in any particular meaning other than to provoke.
“The phrase ‘Bong Hits 4 Jesus’—to me, it’s absurdly funny,” said 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. “What the banner says is, ‘I have the right to free speech, and I’m asserting it.’ ”
“Of course,” he added in a conference call with reporters this month, “I knew there was a possibility that some people would not take it well.”
Deborah Morse, then the principal of Juneau-Douglas High, in Juneau, was one such person. 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 school board of the 5,000-student district.
“We didn’t view the sign as serious speech on a political topic,” said Peggy Cowan, the Juneau superintendent, who was an assistant superintendent at the time.
Ms. Morse’s actions share the spotlight in the case. After Mr. Frederick sued over the suspension, a federal district court sided with the principal and the district. But a federal appeals court held that Mr. Frederick’s banner was protected speech under the Supreme Court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District, which ruled in favor of students who wore black armbands to protest the Vietnam War.
The three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also held unanimously that the principal was not entitled to immunity from the student’s lawsuit because her actions violated Mr. Frederick’s rights under clearly settled law on student speech.
That part of the 9th Circuit ruling has alarmed school groups, which contend that applying conflicting legal rulings on student expression is far from easy on a day-to-day basis.
“Refusing to grant immunity to school administrators despite the lack of clarity over free-speech rights will have a deleterious impact” on districts and school administrators, says a friend-of-the-court brief filed on the side of Ms. Morse and the Juneau district by the American Association of School Administrators, the National Association of Secondary School Principals, and the National School Boards Association.
Public or School Speech?
Mr. Frederick will not be in Washington when the justices hear arguments on March 19 in Morse v. Frederick (Case No. 06-278). After graduating from Juneau-Douglas High in 2002, he attended college at Stephen F. Austin State University in Texas and then at the University of Idaho, where, he said, he is a few credits short of graduating.
He recently took a job in China, teaching English and studying Chinese history and the Mandarin Chinese language.
Mr. Frederick said he was intent on testing the limits of free speech when he created his “Bong Hits 4 Jesus” banner using duct tape for the lettering on a long strip of paper. He acknowledged having had various run-ins with administrators during his high school years. He said he once declined to stand for the Pledge of Allegiance, instead remaining seated and turning his back to the flag.
On the morning five years ago that the torch relay for the Winter Olympics in Salt Lake City was going to parade by Juneau-Douglas High, Mr. Frederick never reported to school. He said his car was stuck in snow.
But he arrived outside the school in time for the torch entourage. He stayed on the sidewalk across the street from Juneau-Douglas High, and with the help of several other students, held up the banner just as the torch passed, in the hope of getting on the local TV news.
Mr. Frederick said he had first seen the phrase “Bong Hits 4 Jesus” imprinted on a snowboard, and he was not seeking to convey any message about either marijuana or Christianity.
“It was supposed to be subjectively interpreted,” he said. “I was not promoting drugs.”
Ms. Morse initially suspended Mr. Frederick and another student for five days. Mr. Frederick contends that when he quoted Thomas Jefferson on free expression to her, the principal doubled his suspension. The district says in court papers he was suspended for 10 days because he was “defiant and uncooperative,” and he refused to divulge who else was holding up the banner.
The American Civil Liberties Union, which represents Mr. Frederick, says its first argument is that the banner should not be seen as student speech, since it was shown on a public sidewalk.
“This is an incident of pure free speech by a young adult, having nothing to do with the school,” said Douglas K. Mertz of Juneau, who will argue Mr. Frederick’s case. “The district wants to be able to punish off-campus speech.”
But the district and Ms. Morse contend that the Olympic-torch relay just outside the school was akin to a field trip, where administrators supervise students.
Both the federal district court and the 9th Circuit court analyzed the case as a student-speech case.
The district court judge held that the banner’s message could be prohibited by the school under the Supreme Court’s 1986 ruling in Bethel School District v. Fraser, which upheld the discipline of a student who had made a speech laced with sexual innuendo at a student assembly because such speech would undermine the school’s basic educational mission.
The district judge said the “Bong Hits 4 Jesus” banner “directly contravened” the district’s policies aimed at drug-abuse prevention.
The 9th Circuit court reversed the decision. It narrowly interpreted Fraser to apply to sexually oriented speech, and said that analyzed under Tinker, Mr. Frederick’s banner could not be prohibited because it did not cause substantial disruption to school.
“Under Tinker, a school cannot censor or punish students’ speech merely because the students advocate a position contrary to government policy,” the appeals court said in its ruling last year.
Administrators should be able to restrict messages about illegal drugs, the Juneau district and some of its allies in the case stress.
The banner’s “slang marijuana reference was part of an antisocial publicity stunt designed to draw attention away from an important” school activity, says the brief for the district and Ms. Morse. They are being represented by Kenneth W. Starr, the former U.S. solicitor general under President George H.W. Bush and the Whitewater independent counsel who investigated President Clinton.
The AASA, the NASSP, and the NSBA, which all back the district, emphasize that schools must be able to maintain “safe and effective learning environments to carry out their educational mission.”
Thus, their brief says, schools should be able to regulate “messages that are threatening or hurtful to [students] or otherwise at odds with academic and citizenship-building work of the schools.”
The brief cites lower-court rulings that have upheld administrators in disciplining students for such actions as wearing a Marilyn Manson T-shirt, because it promoted antisocial behavior. They also say they need to regulate student speech in cyberspace, such as a parody profile of a school principal that was created off-campus.
In addition, the three groups would give little protection to what they deem “low value” speech, saying Mr. Frederick’s “display of Jabberwocky” should receive “little or no First Amendment protection.”
Lawyers for Mr. Frederick say that school authorities are virtually seeking to overturn Tinker.
“There is an extraordinarily broad claim of authority asserted by school officials in this case,” said Steven R. Shapiro, the national legal director of the ACLU.
Mr. Frederick has attracted friend-of-the-court briefs from several conservative legal organizations that often represent students in student-expression cases involving efforts to pray or to wear and distribute religious messages in public schools.
Those groups, including the American Center for Law and Justice, the Alliance Defense Fund, the Christian Legal Society, and the Rutherford Institute, are concerned that a ruling giving school authorities more control over speech would affect student religious expression.
The Alliance Defense Fund is representing a former California high school student who was disciplined for wearing a T-shirt that said “Homosexuality is shameful.”
The group suggests administrators go too far when they restrict expression merely because it might be perceived as derogatory toward a group of students based on their race, religion, or sexual orientation.
“There is no right not to be offended,” the group’s brief says.
On the matter of personal legal liability for educators, the 9th Circuit appeals court held that Ms. Morse, then the Juneau-Douglas High principal, was not entitled to what is known as “qualified immunity” for her actions in disciplining Mr. Frederick. That type of immunity applies to public school officials when their conduct does not violate clearly established rights.
“When Frederick unfurled his pro-marijuana banner, an experienced educator made a reasonable, on-the-spot judgment to enforce her school board’s long-standing, commonplace rule” against advocating illegal drug use, Mr. Starr says in his brief.
The appellate court’s denial of qualified immunity means that a “conscientious school administrator … is now saddled with the prospect of a potentially ruinous damages award,” Mr. Starr adds.
The Bush administration, which will also argue in the Supreme Court on the side of the district and Ms. Morse, says in its brief that even if the banner was protected speech, the former principal was entitled to immunity. The law on what messages were protected was not clearly established because of legal uncertainty over reconciling the Supreme Court’s Fraser decision with the Tinker ruling, the brief by U.S. Solicitor General Paul D. Clement says.
The ACLU responds that qualified immunity is meant to shelter officials who make “reasonable mistakes,” but that Ms. Morse should have known that Mr. Frederick’s banner was protected speech. For one thing, both the ACLU and the 9th Circuit court noted, the principal had taken a graduate course in school law that had covered Tinker, Fraser, and other relevant speech cases.
“Principal Morse seized Frederick’s banner and punished him because she disagreed with the position he advocated,” the ACLU brief says. “That action contravenes the First Amendment, and Principal Morse should be held accountable.”
Vol. 26, Issue 27, Pages 1, 28-29Published in Print: March 9, 2007, as Rights at Stake in Free-Speech Case