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Court may untangle student-speech cases with 'Bong Hits'

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — Public school administrators have complained for years that the Supreme Court’s trilogy of student free-speech cases — Tinker, Fraser and Hazelwood — have given them conflicting guidance about what to do when they are suddenly faced with a First Amendment controversy.

On Dec. 1, the Supreme Court responded by agreeing to review an unusual student-expression speech case from Juneau, Alaska. But whether the case of Morse v. Frederick will end the confusion or add to it is far from clear. And a 2001 decision by then-3rd Circuit Judge Samuel Alito Jr., now a member of the Supreme Court, may even persuade the Court to rule against school officials.

The Juneau case, which will be argued early next year, asks whether school officials can be held personally liable when they enforce anti-drug policies by preventing a student from displaying a pro-drug message at a school-sponsored event.

The National School Boards Association urged the Court to grant review in the case “to afford critical guidance to school administrators regarding free speech rights.”

The dispute arose in advance of the Winter Olympics of 2002. The Olympic torch relay was passing through Juneau as the torch was on its way to Salt Lake City, and Juneau schools decided to turn the event into a teachable moment by letting students watch.

At Juneau-Douglas High School, Principal Deborah Morse allowed students, under supervision, to watch the torch runner pass in front of the school. School cheerleaders and the pep band performed.

Some students watched from across the street as well — significantly, not on school property. In that group, student Joseph Frederick had other plans for when the torch passed. As cameras recorded the moment, he and other students unfurled a large banner that read: “BONG HITS 4 JESUS.” He later described it as a humorous, meaningless, and not at all pro-drug, message.

When Morse asked the students to take down the banner, all complied except Frederick, who asserted his First Amendment rights. Morse grabbed and crumpled the banner and suspended Frederick for five days. During a later discussion, according to his brief, Frederick quoted Thomas Jefferson to her — and his suspension was increased to 10 days. Frederick sued in federal court.

At the district court level, the Juneau school board prevailed, with the judge invoking the Supreme Court's 1986 ruling Bethel School District No. 403 v. Fraser, which allows school officials to regulate “plainly offensive” student speech.

But the 9th U.S. Circuit Court of Appeals reversed. The appeals panel interpreted the Fraser precedent as prohibiting only offensive speech that is “sexual in nature.” The appeals court also distinguished Frederick’s bong banner from what was at issue in Hazelwood School District v. Kuhlmeier, a 1988 precedent that allowed censorship of school-sponsored student newspapers. In part because Frederick displayed the banner off-campus, the appeals court said the banner display was a “non-curricular activity” not covered by Hazelwood.

In the 9th Circuit’s view, with those two precedents out of the way, the 1969 decision Tinker v. Des Moines Independent Community School District was the only framework for reviewing the banner display. Under the Tinker precedent, which stands as the high court’s fullest endorsement of student free-speech rights, Frederick could not be punished unless his speech “disrupts the good order” necessary for a school’s functioning. Since no disruption could be shown, the appeals court ruled that Morse violated Frederick’s First Amendment rights — and could be held liable. Judge Andrew Kleinfeld, not one of the circuit’s liberal judges, authored the decision.

Former Solicitor General Kenneth Starr, representing Morse and the Juneau school board on a pro bono basis, filed an appeal with the Supreme Court arguing that Morse was merely enforcing an anti-drug policy that is replicated in many school districts nationwide. “For that entirely appropriate action, she faces the potential for ruinous liability,” Starr wrote, adding that under the 9th Circuit’s ruling, school officials must tolerate pro-drug messages even as they teach about the dangers of drugs. “This is wildly wrong. And this Court should say so.”

Starr went on to say that “In the contest of regulating pro-drug messages in schools, courts have wrestled with the Tinker-Fraser-Kuhlmeier trilogy.” But Starr said that with the exception of the 9th Circuit, courts had reached a consensus that the Fraser precedent should apply. Language in both Hazelwood and Tinker also support the authority of school officials to regulate pro-drug messages, Starr added.

The National School Boards Association brief stresses the difficulty that school officials face in understanding how they should respond to emergencies in accord with the high court’s jurisprudence. The 9th Circuit ruling “imposes a new legal standard on school administrators — that of a lawyer,” the brief states. “While school administrators perform a myriad of tasks on a daily basis, they are not lawyers.”

Frederick’s lawyer, Douglas Mertz, responds that the case was a poor vehicle for any major First Amendment ruling, because Frederick’s display “did not occur on campus, did not occur at a school-sponsored event, and did not cause any disruption of the educational process.” Mertz, a Juneau lawyer, said the Olympic torch relay was sponsored by the local Coca-Cola distributor, and the events of the case “lie at the farthest margin of a school’s authority.”

Mertz, supported by the American Civil Liberties Union, also argued that the 9th Circuit’s ruling was consistent with the high court’s trilogy of student-speech precedent.

As evidence, Mertz’s brief pointedly cites a 3rd Circuit ruling Saxe v. State College Area School District, written in 2001 by then-judge Alito. At issue was a public school conduct code that banned verbal harassment among other things. Alito’s ruling struck down the policy as overbroad, and in the process extensively reviewed the meaning and interplay of the Supreme Court’s trilogy of student-speech decisions.

Alito summarized their meaning in a way similar to the approach of the 9th Circuit in the Juneau case. “Under Fraser, a school may categorically prohibit lewd, vulgar or profane language,” Alito wrote. “Under Hazelwood, a school may regulate school-sponsored speech (that is, speech that a reasonable observer would view as the school's own speech) on the basis of any legitimate pedagogical concern. Speech falling outside of these categories is subject to Tinker's general rule: it may be regulated only if it would substantially disrupt school operations or interfere with the right of others.”


Justices to hear 'Bong Hits 4 Jesus' case

Juneau, Alaska, school board appealing 9th Circuit ruling that teen's free speech was infringed when he was disciplined for showing pro-drug banner off-campus. 12.01.06

High court hears 'Bong Hits 4 Jesus' case

Justice Breyer says he's struggling with free-speech/school-discipline issues raised when student was suspended for displaying banner at school outing; students rally outside Supreme Court. 03.19.07

Nominee's opinions reveal respect for student speech

By Mark Goodman Several decisions Judge Samuel Alito has authored indicate belief that young Americans are entitled to meaningful First Amendment protections. 11.09.05

Meaning of 'plainly offensive' speech anything but clear
By David L. Hudson Jr. Federal circuits are split over how to apply 1986 Supreme Court decision on student expression. 09.20.06

Justices may take centrist view of 'Bong Hits' case
By Tony Mauro Wariness of giving schools too much power over student speech contends with desire to help them fight drug use. 03.20.07

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