Law & Courts

Speech Ruling Backs Schools But Protects Student Political Expression

By Mark Walsh — June 25, 2007 8 min read

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 said.

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

Douglas Mertz, the attorney for former Juneau-Douglas High School student Joseph Frederick, stands next to his client's "Bong Hits 4 Jesus" banner June 25, in Juneau, Alaska.

Deborah Morse, then the principal of Juneau-Douglas High, in Juneau, 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 school board of the 5,000-student district.

Because the case was decided narrowly, Mr. Mertz said, the decision in Morse v. Frederick (Case No. 06-278) was as good an adverse ruling as free-speech advocates could hope for.

“If you look at the majority decision, and what the other justices said about it, it is very clear it only got a majority because it was restrained to speech by a student at school or school function promoting illegal drugs, and nothing more,” Mr. Mertz said. “They were very careful to say this does not include political speech.”

Francisco M. Negron Jr., the general counsel of the National School Boards Association, said the decision was a ratification of “good governance” because the administrator in the case was applying a school board policy against pro-drug messages.

“This was not a case where the school principal acted arbitrarily,” said Mr. Negron, whose association had filed a friend-of-the-court brief on the side of the Juneau district and Ms. Morse. “The principal acted within the contours of a school board policy.”

He added that he read the opinions of the justices as backing administrators as they sought to create a school environment aimed at promoting the welfare of students.

Key Opinion by Alito

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 for the court.

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 were released from class during school hours to see the Olympic-torch relay passing by their school, with teachers and administrators dispersed among the students and retaining supervision over them.

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

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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.

“I join the opinion of the court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue,” he said, such as speech on the wisdom of the “war on drugs” or on legalizing marijuana for medicinal use.

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

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

Mr. Starr added that he believed that the court had actually moved away from the strong pro-school approach of the Supreme Court since its landmark 1969 decision in Tinker v. Des Moines Independent School District that upheld students’ right to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

In its 1986 decision in Bethel School District v. Fraser, the court backed school officials’ authority to discipline a student’s speech at an assembly because it was laced with sexual innuendo. In its 1988 ruling in Hazelwood v. Kuhlmeier—the court’s last major ruling on student speech—the justices gave school administrators broader authority to exercise editorial control over speech that could be interpreted as school-sponsored.

“I think this is a much more pro-First Amendment court than was the court of yesteryear,” Mr. Starr said.

Although Mr. Starr represented the school district and the principal, he referred with respect to friend-of-the-court briefs filed on behalf of Mr. Frederick by several conservative Christian legal organizations, which had expressed concerns that a decision for the district might prompt administrators to restrict student religious expression.

The groups’ briefs “well articulated the dangers to our system of free expression of undue power of school officials,” Mr. Starr said.

Weighing Tinker, Bethel

In his majority opinion, Chief Justice Roberts repeated the Tinker decision’s famous line that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But he also referred to language from the Bethel decision stating that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”

Justice Clarence Thomas joined the majority opinion but wrote separately to say that he would do away with the court’s Tinker precedent.

“In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools,” Justice Thomas said.

He referred to the days of Colonial America, where “in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed.”

No other justice joined signed on to his viewpoint.

Justice Stephen G. Breyer filed an opinion that he described as “concurring in the judgment in part and dissenting in part.” That led some reporters and other observers to describe the case as a 5-4 decision, which is not without some foundation. But Justice Breyer did concur in the outcome in favor of the school district and Ms. Morse, making it a 6-3 judgment.

Justice Breyer’s opinion stressed that he would have resolved the case solely on the basis of the principal’s immunity, and would have avoided deciding the free-speech issue.

In the dissent, Justice John Paul Stevens Jr. called Mr. Frederick’s “Bong Hits 4 Jesus” banner “ridiculous” and a “nonsense message,” but one that was still deserving of constitutional protection. “In my view, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students,” said Justice Stevens. “This nonsense banner does neither, and 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.”

Justice Stevens’ dissent was joined by Justices David H. Souter and Ruth Bader Ginsburg.

‘Continuous Public Evaluation’

The Supreme Court seemed to be unanimous, however, on the idea that the principal did not deserve to face personal liability in the case, as the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had ruled.

“School principals have a difficult job, and a vitally important one,” Chief Justice Roberts said in his majority opinion. “When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot.”

And Justice Stevens, in his dissent, said that Ms. Morse should not be held liable for pulling down Mr. Frederick’s banner.

In a conference call with reporters, Ms. Morse, who is now a central-office administrator with the Juneau district, said she was happy that more than five years of “continuous public evaluation” of her handling of the “Bong Hits” banner had come to a conclusion.

“I am glad that the court recognized the need for reasonable rules governing student speech for the good of all students, and not to have to worry anymore about being held personally liable for enforcing school policies,” Ms. Morse said.

Mr. Mertz, Mr. Frederick’s Juneau-based lawyer, said he had reached Mr. Frederick with news of the decision while the young man was on vacation with his father in the “backwoods of Idaho.”

“He said he was shocked,” Mr. Mertz said. “He was surprised by the fact that the chief justice ignored that he was trying to make a point about the First Amendment.”

Mr. Frederick, now 23, has been teaching in China this past school year and has signed up to do that for another year, Mr. Mertz said.

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