The U.S. Supreme Court appeared sharply divided last week on whether a student鈥檚 banner proclaiming 鈥淏ong Hits 4 Jesus鈥� outside an Alaska high school was protected speech or a message that school authorities could suppress because it ran counter to their policies against the promotion of illegal drugs.
Justice Stephen G. Breyer seemed to capture the court鈥檚 concerns as it heard arguments in Morse v. Frederick (Case No. 06-278) on March 19.
鈥淚t鈥檚 pretty hard to run a school where kids go around at public events publicly making a joke out of drugs,鈥� Justice Breyer told Douglas K. Mertz, the lawyer representing former high school student Joseph Frederick, whose suspension for 10 days in 2002 stemmed from the incident.
Justice Breyer said he worried that if he took the student鈥檚 side, 鈥渨e鈥檒l suddenly see people testing limits all over the place in the high schools. But a rule that鈥檚 against your side may really limit people鈥檚 rights on free speech. That鈥檚 what I鈥檓 struggling with.鈥�
Kenneth W. Starr, the lawyer representing Deborah Morse, who was the principal of Juneau-Douglas High School, in Juneau, at the time of the incident, argued that Mr. Frederick鈥檚 14-foot banner was an assault on the district鈥檚 anti-drug policies.
鈥淚llegal drugs and the glorification of drug culture are profoundly serious problems for our nation,鈥� Mr. Starr told the justices.
When his turn came, Mr. Mertz, the Juneau lawyer representing Mr. Frederick, told the justices: 鈥淭his is a case about free speech. It is not a case about drugs.鈥�
Was It Disruptive?
The arguments came nearly two decades after the Supreme Court upheld the right of secondary school students to wear black armbands to protest the Vietnam War. In that landmark 1969 decision in Tinker v. Des Moines Independent Community School District, the court upheld such political expression as long as school was not substantially disrupted.
Based on the oral arguments, the decision in the Alaska case is likely to be a close one. There appeared to be some sentiment among the justices for carving out an exception to Tinker鈥檚 protections when the student speech in question runs counter to school anti-drug policies or when it advocates violent or any illegal activity.
Another possibility is that the justices could decide that Mr. Frederick鈥檚 banner was not student speech at all鈥攂ut protected public speech鈥攂ecause it occurred off campus and he had never arrived at school that day before he showed up at the parade at which he and other students displayed the banner.
But through most of the argument, the justices treated the case as one involving school speech.
Several justices wanted to know from Mr. Starr just what about Mr. Frederick鈥檚 banner was disruptive to his high school, since it was displayed across the street from the school during a corporate-sponsored event to celebrate the carrying of the Olympic torch. The event was attended by members of the general public in addition to Juneau-Douglas High students, who had been dismissed from classes for the event. (鈥淩ights at Stake in Free-Speech Case,鈥� March 14, 2007.)
鈥淚 can understand if he unfurled the banner in a classroom that it would be disruptive, but what did it disrupt on the sidewalk?鈥� Justice David H. Souter asked.
The banner disrupted the school鈥檚 educational mission, Mr. Starr said.
Justice Souter, who was the most aggressively pro-free-speech member of the court in his questioning, replied: 鈥淭hen if that鈥檚 the rule, the school can make any rule 鈥� on any subject restrictive of speech, and if anyone violates it, the result is, on your reasoning, it鈥檚 disruptive under Tinker.鈥�
Mr. Starr, a former U.S. solicitor general and the independent counsel who investigated the Whitewater matter during the Clinton administration, said the school board has considerable discretion to identify the educational mission and 鈥渢o prevent disruption of that mission, and this is disruptive of the mission.鈥�
Chief Justice John G. Roberts Jr. and Justice Antonin Scalia seemed most receptive to that argument鈥攚ith the chief justice suggesting that even if students were engaging in political speech, which the court traditionally gives the highest level of protection, it could be considered disruptive of that mission.
鈥淚 mean, why is it that the classroom ought to be a forum for political debate simply because the students want to put that on their agenda?鈥� Chief Justice Roberts asked. 鈥淧resumably, the teacher鈥檚 agenda is a little bit different and includes things like teaching Shakespeare or the Pythagorean theorem, and just because political speech is on the student鈥檚 agenda, I鈥檓 not sure that it makes sense to read Tinker so broadly as to include protection of 鈥� that speech.鈥�
But Mr. Starr resisted such a blatant curbing of student speech, noting that the Supreme Court has not aimed 鈥渆ven in the public school setting鈥� to 鈥渃ast a pall of orthodoxy to prevent the discussion of ideas.鈥�
Justice Anthony M. Kennedy asked about students who expressed 鈥渁 particular view on a political issue鈥擭o Child Left Behind, or foreign intervention, and so forth?鈥�
What is needed, Mr. Starr replied, is 鈥渞estoration, frankly, of greater school discretion鈥� in deciding whether the speech is disruptive or not, with less intervention by the federal courts.
A 鈥楧isturbing Argument鈥�
Representing the Bush administration on the side of the 5,063-student Juneau school district, Deputy U.S. Solicitor General Edwin S. Kneedler said the court should be guided by two of its later student-speech decisions that reined in Tinker.
Those are Bethel School District v. Fraser, a 1986 case that upheld the discipline of a student who had made a sexually suggestive speech at a student assembly, and Hazelwood v. Kuhlmeier, the 1988 ruling that clarified the authority of school administrators over speech that could be construed as school-sponsored, such as in a school newspaper that is part of the school鈥檚 academic program.
鈥淎 school does not have to tolerate a message that is inconsistent with its basic educational鈥� mission, Mr. Kneedler said.
鈥淚 find that a very, very disturbing argument,鈥� said Justice Samuel A. Alito Jr., because under such an interpretation, schools 鈥渃an define their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that鈥檚 inconsistent with their educational mission.鈥�
Justice Alito鈥檚 comments echoed concerns by conservative religious-advocacy groups, which in an unlikely alliance have joined with the American Civil Liberties Union in supporting Mr. Frederick in the case because they fear the effects the case may have on student religious expression in public schools.
As a judge on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, Justice Alito wrote several opinions backing students鈥� rights to religious expression in public schools, including one that struck down a school district鈥檚 anti-harassment policy because it prohibited 鈥渁 substantial amount of speech that would not constitute actionable harassment under either federal or state law.鈥�
Mr. Mertz argued that, based on Tinker, a school district could control a student鈥檚 speech only if it caused 鈥渁 substantial disruption of what the school is trying to achieve legitimately, whether it鈥檚 a classroom lesson or a lesson on drug use.鈥�
Mr. Mertz said, for example, that the wearing of a 鈥渘ondisruptive pin鈥� by a student would have to be tolerated. However, he said, authorities would not have to tolerate a student鈥檚 interruption of an anti-drug presentation.
Qualified-Immunity Issue
The one issue on which the justices seemed to be in agreement was that Ms. Morse, the principal of Juneau-Douglas High in 2002, deserved immunity from personal liability in the lawsuit that Mr. Frederick filed against her.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that Ms. Morse was not immune from the lawsuit because the violation of the student鈥檚 rights was clear. No amount for Ms. Morse鈥檚 damages has been set.
The student was 鈥渃ertainly willing to negotiate a minimum settlement,鈥� Mr. Mertz said.
鈥淏ut there鈥檚 a broader issue of whether principals and teachers around the country have to fear that they鈥檙e going to have to pay out of their personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school鈥檚 educational mission,鈥� Chief Justice Roberts said.
Justice Souter suggested that Ms. Morse could not have been expected to know she was violating Mr. Frederick鈥檚 rights when she disciplined him for a banner that she interpreted as violating the school鈥檚 policies against promoting illegal drugs.
鈥淲e鈥檝e been debating this in this courtroom for going on an hour, and it seems to me, however you come out, there is reasonable debate,鈥� Justice Souter said to Mr. Mertz. Should the principal have known, 鈥渆ven in the calm deliberative atmosphere of the school later, what the correct answer is?鈥�
A decision is expected by the end of the court鈥檚 term in June.
