WASHINGTON (ABP) — Few events in American society could bring together the American Civil Liberties Union and Pat Robertson's American Center for Law and Justice, especially to defend a banner mentioning drug use. But a case argued before the Supreme Court March 19 did just that — they united in opposition to President Bush's administration, Kenneth Starr and a public school board.
The unlikely bedfellows are arrayed against opponents in what could become the most significant student free-speech case in 30 years.
The high court heard oral arguments in Morse v. Frederick (No. 06-278), a case stemming from a 2002 prank by an 18-year-old senior at Juneau-Douglas High School in Juneau, Alaska. During a parade celebrating the 2002 Salt Lake City Winter Olympics, Joseph Frederick and his friends held a 14-foot-long banner on a public sidewalk across the street from the school. Its message read “Bong Hits 4 Jesus.” A bong is a water pipe sometimes used to smoke marijuana.
Frederick said he had seen the phrase elsewhere and chose it simply as an absurdist, nonsensical way to celebrate his free speech — and attract attention from the many news cameras covering the event.
Upon seeing the banner, which she took as an endorsement of drug use, school principal Deborah Morse walked over to Frederick and ordered him to take it down. When he refused, she tore the sign down herself.
Frederick sued Morse and the Juneau School Board, and he won in lower federal courts. The losing parties appealed the case to the Supreme Court, and the Bush administration joined their side.
However, the breadth of the arguments from the school board and the government alarmed civil libertarians and conservative Christian groups, several of which filed friend-of-the-court briefs on Frederick's behalf. Besides the ACLJ, the groups included the Alliance Defense Fund and the Christian Legal Society.
Attorneys for both the school board and the government argued that school officials could suppress any student message “inconsistent with the school's basic educational mission.” Anti-drug groups filed friend-of-the-court briefs in favor of that view.
But agreeing with such a view would compel the court to make an exception to its landmark 1969 Tinker v. Des Moines School District ruling. In that decision, the majority ruled the school could not prevent students from wearing black armbands to class to protest the Vietnam War. The court's majority said, famously: “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In the years since Tinker, the court has made narrow exceptions to the rule in cases where students engaged in disruptive or vulgar speech or where the school could be seen as directly endorsing the speech through its support of a student publication like a campus newspaper.
But the Juneau School Board's argument, echoed by the government, would allow suppression of student speech beyond previous cases. School officials' right to censor speech could extend to any student speech that, though neither disruptive nor subsidized by the school, proved to be at odds with school-district policies.
The Christian groups who side with Frederick warn that such a broad ruling could have unintended consequences. The Texas-based Liberty Legal Institute told justices it is “gravely concerned that the religious freedom of students in public schools will be damaged” should they accept the school's and government's argument.
Many of the briefs asked whether a student who expressed an unpopular religious-based viewpoint — like opposition to homosexuality — in a school-related setting could be disciplined for speaking against district policies that include sexual orientation in their non-discrimination clauses.
The ACLJ brief said school administrators “face a constant temptation to impose a suffocating blanket of political correctness upon the educational atmosphere.”
During March 19 arguments, Morse's advocates avoided such a broad argument. Starr, arguing on behalf of the school board, and Deputy Solicitor General Edwin Kneedler, who argued for the government, focused on a narrow exception for student speech that appears to endorse drug policy.
“Let me be very specific: This case is ultimately about drugs and other illegal substances,” Starr said in response to a question from Justice Anthony Kennedy.
But Justice Samuel Alito said the contention that schools may suppress speech at odds with their mission is “a very disturbing argument” because schools “can define their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students.”
Kneedler replied, “That's why I think … it would make a lot of sense for the court to articulate a rule that had to do with encouraging illegal conduct.”
But other justices took up part of the school district's argument — that upholding the lower court's rulings would require school districts to tolerate a much broader range of behavior than previously required.
Propose that “the school has a program, an anti-drug program that shows movies, it brings in policemen and social workers to preach against drug use,” hypothesized Justice Antonin Scalia, to Doug Mertz, Frederick's attorney. “You're saying that [the school] has to let students contradict this message it's trying to teach — to walk around, you know, with a button that says, 'Smoke Pot: It's Fun!'”
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Read more:
Supreme Court transcript of oral arguments in Morse v. Frederick
U.S. government's friend-of-the-court brief on behalf of Morse in Morse v. Frederick
Liberty Legal Institute's friend-of-the-court brief on behalf of Frederick in Morse v. Frederick