Wide range of interested parties assembles for epic U.S. Supreme Court battle
In the past five years, a classic conflict between a second-semester senior impatient to move on in the world and his frazzled principal trying to maintain order has become an only-in-America battle spawning numerous lawsuits, conflicting court rulings, and changes that shook the lives of its participants. Now, a wide range of interested parties has assembled for what they see as an epic U.S. Supreme Court battle, which will be heard next week. Morse v. Frederick asks the justices to weigh the Court's famous 1969 ruling that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" against more recent decisions acknowledging a school system's ability to create rules that maintain order and protect students from messages deemed harmful.
The case hinges on a somewhat absurd, vaguely offensive, mostly nonsensical message of protest: "Bong Hits 4 Jesus." The slogan was written on a banner that Joseph Frederick, then a senior at Juneau-Douglas High School in Juneau, Alaska, unfurled across the street from the school while the Olympic torch passed by. His goal was partly to get on TV and mostly to get under the skin of his disciplinarian principal, Deborah Morse. In an earlier incident, Joseph had turned his chair around and sat with his back to the flag during the Pledge of Allegiance. "This was my symbolic protest against a school administration that clearly lacked common sense and abused its power to retaliate against anyone who dared question their authority," he wrote later in a mini-autobiography quoting Thoreau, Voltaire, and Martin Luther King. After that, Joseph said, he had resolved to find a free speech protest that would draw wider notice.
He succeeded in irritating the principal. Ms. Morse crossed the street and confiscated the banner. She later suspended him for 10 days. Joseph says a five-day suspension was doubled after he talked back by quoting Thomas Jefferson on free speech. Ms. Morse testified the extra days came because he wouldn't cooperate and name the other students who held the banner, and her brief to the Supreme Court says that Joseph "displayed a belligerent attitude and gave evasive and mocking answers to her questions." The banner itself didn't cause a big reaction that day among students, Joseph says. "Students thought it was dumb," agrees a classmate. "But people were mostly amused by the way the administrators reacted, how they got on their walkie-talkies and called for backup."
Backup at this point has come to include the National School Boards Association, former federal drug czar William J. Bennett, and the solicitor general of the United States. Arguing for free on behalf of the Juneau School Board is Kenneth Starr. Frederick has drawn reinforcements, too, including the American Civil Liberties, a half-dozen Christian and constitutional rights organizations who say they are looking past the "ill-advised stunt" to worry about future censorship of religious or "pro-family" expression in public schools, and groups supporting drug-policy reform and gay rights, as well as booksellers, librarians, and feminists. These groups all argue that school officials should not be able to punish nondisruptive student speech just because they interpret it as contradicting school policy.
The school district maintains that Joseph's slogan encouraged smoking marijuana. But other school districts, especially in light of school shootings and other violence, have restricted clothing and speech that they thought could cause disruption or violence. Both sides equate an adverse ruling with cataclysmic results. According to ACLU national legal director Steven R. Shapiro, the "extraordinarily broad claim" asserted by the government "would in effect overrule the entire architecture of student speech law that the Supreme Court has so carefully constructed over the past 40 years." Ms. Morse's brief, written by Mr. Starr, argues that ratification of the student's victory in the appellate court would make all the more daunting "the vital task of teachers, administrators and volunteer school board members in attending holistically to the needs of millions of students entrusted every school day to their charge."
The case presents unusual facts. Joseph was 18 at the time of the event, and he was careful not to display his protest message on school grounds. At least one non-student helped hold the banner, and his attorneys contend that even if his message was considered pro-marijuana, debates about legalizing the drug are a legitimate and current topic of political discussion in Alaska. In addition, school officials acknowledge the actions were not disruptive. Nonetheless, the school district contends the protest happened during a school-sponsored event, where the entire student body was released for the parade, during which cheerleaders and the pep band entertained. Mr. Starr contends that "[i]t was a field trip," even if it occurred just outside the school's doors. In the brief, he argues: "student free speech rights ... appropriately yield when it comes to promoting illegal substances."
A federal district judge relied on the Supreme Court's more recent decisions to dismiss Joseph's lawsuit against the principal and the school board that backed her decision. But the U.S. Court of Appeals for the 9th Circuit said that the 1969 decision in Tinker v. Des Moines Independent Community School District, from which the "schoolhouse gate" language is drawn, was the most important and that government officials cannot punish speech with which they disagree. The appeals court held Ms. Morse personally liable for violating Joseph's rights, a finding that has caused consternation among educators nationwide.
Juneau lawyer David Crosby, who represented the schools in the early rounds of the case, says Joseph has "delusions of grandeur." "The Bong Hits case is an interesting one, and the district has not gotten a whole lot of sympathy from the press. So be it," he said via e-mail. "It is particularly galling, however, that while the district is being painted as the enemy of students' rights, the carefully manipulated image of Joe Frederick as a latter day Thoreau ... is highly misleading, offensive and ludicrous," he said. For his part, Joseph says he's glad he stuck with the free-speech lawsuit, despite the uproar it caused in his life. "They don't want to admit that they're wrong in any way," he said.
Anchorage Daily News
By Tom Kizzia
[Full story]
Washington Post
By Robert Barnes
[Full story]
[Editor's Note: Much background on the case, including summaries of the district court and Ninth Circuit opinions and the amicus brief submitted by NSBA, the American Association of School Administrators, and the National Association of Secondary School Principals in support of the school board and Ms. Morse, is available starting below.]
[NSBA School Law pages on NSBA et al. brief in Morse v. Frederick]