Morse v. Frederick, No. 06-278 (U.S. June 25, 2007)
The U.S. Supreme Court has ruled that public school officials may restrict student speech at a school event when the speech is reasonably viewed as promoting illegal drug use. The case arose when students at Juneau-Douglas High School in Juneau, Alaska, were released to watch the Olympic torch pass by the school at a event that was school-sanctioned and supervised, but not required. Student Joe Frederick and some other individuals held up a banner across the street from the school that read “Bong Hits 4 Jesus.” Principal Deborah Morse directed them to take down the banner, which she confiscated, and then suspended Joe. He sued, claiming his First Amendment rights had been violated. A U.S. district court held that Ms. Morse “had the authority, if not the obligation, to stop such messages at a school-sanctioned activity.” The U.S. Court of Appeals for the Ninth Circuit reversed, holding that the school failed to show a “risk of substantial disruption” within the meaning of the Supreme Court’s ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), and that Joe’s right to display the banner was so clearly established that Ms. Morse was not entitled to qualified immunity from personal liability.
The Supreme Court reversed the Ninth Circuit. Chief Justice Roberts authored the Court’s opinion, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. The Court initially rejected Joe’s argument that the case was not about school speech, acknowledging “some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, … but not on these facts.” It then found that Ms. Morse’s interpretation of the banner as conveying a pro-drug message was “plainly a reasonable one.” The Court distilled two basic principles from its previous rulings on student speech, Tinker, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U. S. 260, 266 (1988): first, students’ free speech rights are construed “in light of the special characteristics of the school environment,” and second, “the mode of analysis set forth in Tinker is not absolute” or “the only basis for restricting student speech.” In addition, the Court’s Fourth Amendment cases applied a more relaxed standard to searches conducted in a school environment and “recognize[d] that deterring drug use by schoolchildren is an ‘important—indeed, perhaps compelling’ interest.” Against this backdrop, the governmental interest in stopping student drug abuse allows schools to restrict student expression they reasonably regard as promoting illegal drug use. However, the Court rejected the school district’s call for a broader rule that the speech was “proscribable because it is plainly ‘offensive’ as that term is used in Fraser.” Such a rule would “stretch Fraser too far,” the Court held, noting that the “concern here is not that [the student’s] speech was offensive, but that it was reasonably viewed as promoting illegal drug use.” Having found no free speech violation, the Court had no occasion to address the immunity question.
Justices Alito and Kennedy concurred with the opinion only in so far as “(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, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”
In another concurring opinion, Justice Thomas wrote separately “to state my view that the standard set forth in Tinker, is without basis in the Constitution.” He argued that in creating another “ad hoc” exception, “we continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not. … I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t¯a standard continually developed through litigation against local schools and their administrators.” He expressed concern about “judicial oversight of the day-to-day affairs of public schools” and their “judgment calls” about interference with discipline and appropriate discipline, concluding that “[l]ocal school boards, not the courts, should determine what pedagogical interests are ‘legitimate’ and what rules ‘reasonably relat[e] to those interests.”
The dissent by Justice Stevens, joined by Justices Ginsburg and Souter, argued that the school’s interest could not “justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs.” Rather, 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.” The dissent agreed, however, that Ms. Morse should not be held liable.
Justice Breyer, concurring in the judgment in part and dissenting in part, would have disposed of the case on ground that qualified immunity barred the student’s claim for monetary damages. He found resolving the free speech issue unwise and unnecessary, noting that the record indicated that Joe’s suspension may well have been justified on non-speech-related grounds. The majority dismissed this argument, noting that the immunity question would dispose only of Joe’s claim for monetary damages and finding that the point about “non-speech-related grounds” was not considered by the courts below, raised by the parties, or suggested by the record. Justice Breyer also found that the dissent’s approach “would risk significant interference with reasonable school efforts to maintain discipline.”
Morse v. Frederick, No. 06-278 (U.S. June 25, 2007)
[Full opinion]
[Editor’s Note: The decision is as significant for what it does not say as for what it does. The Court’s rejection of the argument that the event in question was not sufficiently school-related recognizes the complexities facing schools in the 21st century on this question of the boundaries of public school authority and responsibility¯complexities that are reflected in two other school law developments this week summarized at the first two links below.
On the other hand, the majority, especially Justices Alito and Kennedy, was not persuaded by arguments that schools need some discretion to define their educational mission for purposes of speech cases. The amicus brief submitted by NSBA, joined by the American Association of School Administrators and the National Association of Secondary School Principals, had argued that recognizing this discretion¯subject to the kinds of judicial limitations reflected in the Court’s previous student speech decisions¯would be a more coherent and workable approach than an interpretation that, in effect, Fraser is about sex, Morse is about drugs, and the next case will be about Rock & Roll. The critique by Justice Thomas, while sweeping in its conclusion (and noteworthy in its invocation of 19th Century traditions in American education and law), focuses on this problem.
The third link below is to background on the case, including summaries of the lower court decisions, links to the oral argument transcripts, and the NSBA brief. Additional commentary and reporting on the case and the decision are available on BoardBuzz, NSBA’s daily blog, starting at the fourth link.]
[NSBA School Law pages on impact of immigration raids on students]
[NSBA School Law pages on Jerkins v. Anderson]
[NSBA School Law pages on Morse v. Frederick]
[BoardBuzz on Bong Hits]