Maybe it’s not Jesus the Supreme Court hates. Maybe it’s bong hits. Or perhaps just high school students.
Based on a ruling issued today — the last day of the Court’s 2006 term — the answer could be any of the three, or all together. In a 5-4 opinion that carried the usual plethora of concurring and dissenting opinions, the Court ruled that the state of Alaska has the power to punish a student who displayed a sign saying "Bong Hits 4 Jesus", even though that student was not on school property at the time. The case is Morse v. Frederick
The case originated in 2002 when the Olympic torch relay passed through Juneau, Alaska on its way to Salt Lake City. Students at the Juneau-Douglas H.S. were permitted to leave class to watch the torch relay. As the torch passed, several students, including Joseph Frederick unfurled a banner reading "Bong Hits for Jesus". The students were told to take down the banner and, when he refused, Frederick was suspended for ten days under a school policy that punishes anyone who promotes illegal drug use. A series of appeals through the educational system and federal courts culminated in the United States Court of Appeals holding that the First Amendment prohibited punishment of this type for a statement that did not occur within the confines of the school grounds or activities.
The school system petitioned the Supreme Court for review of the case, and when the Court granted certiorari, a showdown of epic proportions over the limits of student speech followed. Everyone wondered whether Tinker v. Des Moines School District would be upheld or whether the Court would further restrict the student speech rights offered in that case, as it had done in a series of cases, the most notable of which was Hazelwood School District v. Kuhlmeier. Tinker has long stood for the proposition that "students do not shed their constitutional rights at the schoolhouse gate" and that students may not be punished for speech that does not materially and substantially disrupt the work and discipline of the school, while Hazelwood opened the door to regulation of student speech that occurs as part of a school-sponsored activity and which threatens the school’s educational mission.
Specifically, the court tackled two issues:
- Whether Frederick had a First Amendment right to wield his banner, and,
- If so, whether that right was so clearly established that the principal may be held liable for damages.
The Supreme Court answered the first question "No", which mooted the second one entirely.
Chief Justice Roberts wrote the majority opinion, which was joined by Justices Scalia, Thomas, Kennedy and Alito. He immediately rejected Frederick’s argument that this was not a school speech case just because the offensive action did not take place on school property. He noted that it occurred during school hours and, as claimed by the school principal as part of an "approved social event or class trip". In other words, the school characterized this as a field trip — a classification supported by the existence of teachers and other supervisory personnel interspersed among the students, the performance of the high school band and cheerleaders and the fact that Frederick directed his banner back toward the school across the street from where he was standing.
As for the content of the banner itself, Roberts described it as, "offensive to some, perhaps amusing to others. To still others, it probably means nothing at all". But he ultimately took Principal Morse at her word, believing that she viewed it as "advocating or promoting illegal drug use." He distinguished this from Tinker because that case had quite obviously been about political speech. Roberts further limits Tinker by stating that the decision in Bethel School District No. 403 v. Fraser demonstrates that the Tinker test is not the only one that can be used in a school context. He then recited a litany of cases to show that student rights are significantly limited in other situations where drugs are involved and cited several studies showing the damaging effects drugs have had on youth.
Justice Thomas expressed disavowed Tinker in his concurring opinion, stating "In my view, the history of public education sug-gests that the First Amendment, as originally understood, does not protect student speech in public schools." He used his concurrence to review the history of education in the United States, concluding that students did not have the right to free speech in the classroom through the majority of this time, so no such right should be expected now. He repeatedly invoked the idea that schools exist "in loco parentis" ("in place of the parent") as a means of justifying the school’s right to widely discipline student speech.
Justice Alito also concurred, but his concurrence sought to limit the reach of the Court’s holdings. He joined the Court’s holding 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, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’" In other words, he clearly agreed that the banner referred to actual illegal drug use — and if it didn’t, he wouldn’t advocate the suspension handed down in this case. Just bringing up the issue of drugs, according to Justice Alito, should not lead to student punishment. He also appeared to expressly disagree with Thomas’ stance on the role of Tinker in these cases.
Justice Breyer did not view this as a free speech case at all — instead believing it should be resolved on qualified immunity grounds. The quick decisive action by school administrators that is so favored by the majority is necessary — and for that reason, administrators are entitled to qualified immunity in these instances. Because such immunity bars recovery of any sort by Frederick in his civil rights lawsuit, there is no need to reach the underlying First Amendment issues (this is a tough argument to swallow, as Breyer himself notes that Frederick also sought the purging of the suspension from his dreaded permanent record, an action which would not fall within the confines of a qualified immunity principle).
Justice Stevens, with Justice Ginsburg and Justice Souter, dissented. These Justices agreed with the majority of the court — creating a unanimous view — that the Principal should not be liable for damages in her action. However, they believe that Frederick’s suspension clearly violated the First Amendment and they believe that the Court’s ruling opens the door for future student action regardless of the message at issue, as long as there is any ambiguity as to its meaning. These Justices would require the student to clearly violate a valid school rule or expressly advocate illegal conduct. Allowing a vague statement to be construed as illegal opens the door to punishment for any speech which may offend, as long as someone can make the case that it also threatens the educational mission.
A few unsolicited thoughts on the case from someone who has practiced First Amendment law for over a decade:
It is clear that the key evidence in this case is the memorandum from the Superintendent of the Juneau School District identifying the event as a school-sanctioned activity, during school hours in the midst of fellow students and the involvement of the word "drugs" in this case.
The Superintendent, as most school administrators do, knew his law and was perhaps doing some retroactive reclassification of this event to fit his needs for the case. And the Supreme Court bought it. But, to some extent, that’s fine. As I see it, this does not markedly extend the Hazelwood doctrine that allows for regulation of speech that comes as part of a school-sponsored activity. I had actually feared worse — that the Court would disregard the requirement that student speech can only be regulated on campus and as part of an official school activity. I envisioned this Court extending the Hazelwood doctrine to any situation in which the school has any manner of administrative authority — such as independent clubs that meet on campus after school or during student free time. That extension of Hazelwood might have been a death knell for student extracurricular activities that are often as productive as classroom learning.
Though student speech dodged a bullet there, the limiting of Tinker to core political speech raises similar concerns because political speech can take many forms, not all of which are coherent and intellectual. Sure, Joseph Frederick was acting like an idiot kid, but he was an idiot kid with something he wanted to say and it wasn’t clear that the message was clearly to advocate illegal behavior. This case, therefore, takes another step in the direction of the division articulated in Bethel that appears to elevate political speech to a high and rarefied pedestal. Justice Roberts severely jeopardizes Tinker to the point where it is likely to only be invoked by those decidedly speech friendly judges as a means of justifying a holding, not as the standard by which these cases are decided.
This is not surprising, given the subject matter of the speech at issue but is unlikely to be limited to just drug references, as the dissent notes. The Court reveals its conservative bent in somehow believing that this phrase — or anything with a drug reference — is likely to induce students to do drugs. But particularly difficult to digest is the willingness of the Court to agree with the Principal’s interpretation of the phrase "Bong Hits 4 Jesus" while simultaneously agreeing that it could just as easily be "gibberish." This smacks of vagueness at its core, vagueness which could be applied to any other content. In this instance, the Court was willing to give equal weight to the meaning inferred by a viewer to that implied by the speaker. The Court greatly deferred, as it often does and should, to the views of school administrators. But it also seemed to reach for evidence regarding the war on drugs that it believes assaults these administrators every day as a means of justifying restrictions on speech, without any real evidence that this type of message — this type of poorly constructed and expressed message — would increase the intensity of that war. This too, could be applied to any class of content with which administrators or judges disagree, as the dissent rightly notes.
As for Justice Thomas’s views on this issue, the less said the better. His claim that the lack of a student right to free speech in the 19th Century means that there should be no such right to day is completely outrageous, given the other rights that did not exist in the 19th Century but have evolved into being over time…does he yearn for the days of the one room schoolhouse, with students subject to corporal punishment at the slightest outburst? This sounds like a wonderful way to keep order, but not to promote intellectual and emotional growth or reintroduction into life outside the schoolhouse gates.
Overall, though, has the state of student speech significantly changed in its day to day application? Tinker still stands (precariously perhaps, but it stands). The reach of campus might have grown a little for purposes of applying Hazelwood. The majority of the Court clearly deferred to the views of school administrators where there is any lack of clarity as to the student message, but when has that not been the case? But when the day began, students knew that fighting school administrators for their free speech rights is a legal and bureaucratic nightmare that all too often deters even the brightest and most committed of budding advocates. That certainly hasn’t gotten markedly worse, nor do I think anyone expected a result in Morse v. Frederick that would have made it markedly better.