On January 24, 2002, the U.S. Olympic Torch Relay Team passed through Juneau, Alaska, and a local high school -- Juneau Douglas High School (JDHS) -- released its students from class to view the event.
Joseph Frederick, a JDHS student, did not make it to class that morning, but arrived in time for the torch relay. Standing across the street from the school, he and some friends unfurled a banner that read "BONG HiTS 4 JESUS."
Principal Deborah Morse, interpreting the sign as a reference to drug use, walked over to Frederick and asked him to remove the banner. His belligerent refusal led to a 10 day suspension.
Frederick sued Morse for infringing on his constitutional right to free speech. While a trial court dismissed the case, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the case to determine the amount of money Frederick should be awarded as damages. Morse appealed to the U.S. Supreme Court, which heard oral arguments on March 19, 2007.
Both sides agree that the First Amendment would generally protect a person's right to carry a banner stating "BONG HiTS 4 JESUS." However, the U.S. Supreme Court has allowed schools to regulate otherwise protected speech because of their "special characteristics." As a result, the parties focused their arguments on three landmark cases which examined the limits of students' freedom of speech.
The first case, Tinker v. Des Moines Independent Community School District , arose when students wore small black armbands as a protest against the Vietnam War. When the school disciplined these individuals, they brought suit to enforce their First Amendment rights. The nation's highest court famously declared that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and found the armbands to be protected expression, even while on school property.
However, Tinker permits schools to ban speech that would "substantially interfere with the work of the school or impinge upon the rights of students." Since the armbands did not disrupt the school's functioning, they were thus permissible.
The second case, Bethel School District No. 403 v. Fraser , decided that schools may regulate lewd or offensive speech. In that case, a student was disciplined for remarks made at a school assembly. The Court found that the speech interfered with the school's educational mission, because the misbehavior led to the interruption of classes. Additionally, the offensive expression impinged on the rights of others. (Students had been required to attend the function.)
As Fraser also reinforces, instilling civility and good manners is part of a school's educational mission. Therefore, while it may not be appropriate for schools to censor a student's viewpoint, institutions may regulate the manner in which that viewpoint is expressed. Furthermore, schools are given considerable leeway to determine the level of civility they wish to impart.
In the third major school free-speech case, Hazelwood School District v. Kuhlmeier , a school district censored a student newspaper which contained articles on controversial subjects like pregnancy and divorce, censorship which the Court deemed constitutional. As the publication's sponsor, the school was permitted to control the paper's content.
Frederick's attorneys stressed that Tinker recognizes students' freedom of speech and argued that the young man was participating in a national debate on America's drug policy. (Yeah, right.)
They further argued that to uphold Morse's actions would allow schools to dictate the viewpoints their students may make, even when not disruptive of a school function -- a result that would strike at the very heart of the First Amendment.
Morse's attorneys -- led by Kenneth Starr, of Clinton/Lewinsky fame -- pointed to the national drug problem and the pivotal role of our public schools in educating impressionable young students of the dangers of illegal drug use. To allow the banner's display arguably undermined and disrupted the school's educational program, and, according to Fraser , schools are permitted to regulate speech if disruptive of the school's educational mission.
Furthermore, under Kuhlmeier , the school had the right to restrict Frederick's activity since he was at a sanctioned event. Morse's attorneys argued that if she had not taken action, the public would have perceived the school's administration as somehow condoning drug use.
While it is unclear how the Supremes will ultimately decide, it is likely that the Court will issue a very narrow ruling which addresses school speech concerning drug use and will avoid the larger question as to whether learning institutions can regulate the expression of students' broader opinions or viewpoints.
Stay tuned!
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UPDATE:
Several months after this blog was originally posted, the United States Supreme Court issued its decision in the case. To view our analysis of the outcome, please use this link: BONG HEAD TAKES A HIT!