The U.S. Supreme Court appeared sharply divided today on whether a high school 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 the justices heard arguments in Morse v. Frederick (Case No. 06-278).
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, who was suspended for 10 days in 2002 stemming 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 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 during arguments in the case on March 19.
But when Justice Anthony M. Kennedy asked him whether the case was 鈥渓imited to signs about drugs,鈥� Mr. Starr replied that the case of the Juneau district was based on the Supreme Court鈥檚 famous 1969 precedent in Tinker v. Des Moines Independent Community School District. That decision, upholding secondary school students who wore black armbands to protest the Vietnam War, also informed school districts that they were justified in disciplining students for speech that is disruptive, Mr. Starr argued.
Several justices wanted to know just what about the banner was disruptive to school, since it was displayed outside of the school building at an event to celebrate the carrying of the Olympic torch, attended by the general public, at which several students were throwing snowballs.
Mr. Starr replied that it disrupted the school鈥檚 educational mission.
Justice David H. Souter, who was the most aggressively pro-free-speech 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 said the school board is given 鈥渃onsiderable discretion both in identifying the educational mission and to prevent disruption of that mission, and this is disruptive of the mission.鈥�
Representing the Bush administration on the side of the Juneau school district, Deputy U.S. Solicitor General Edwin S. Kneedler said the case was akin to Hazelwood v. Kuhlmeier, another landmark student-speech case, in which the high court reined in Tinker by clarifying the authority of the school over speech that could be construed as school-sponsored.
Under that ruling, Mr. Kneedler said, 鈥渁 school does not have to tolerate a message that is inconsistent with its basic educational鈥� mission.
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�
Mr. Kneedler replied that the justices would be sensible to articulate a result that would discourage illegal conduct.
Mr. Mertz, the Juneau, Alaska, lawyer representing Mr. Frederick, sought to recast the case as 鈥渁bout free speech. It is not a case about drugs.鈥�
Several justices lined up to attack Mr. Mertz鈥檚 contention, though, based on Tinker, that what is important is not the content of the student鈥檚 speech, but, as he put it, 鈥渨hether there is a 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 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.
Justice Antonin Scalia didn鈥檛 buy his reasoning, noting that under Mr. Mertz鈥檚 argument, 鈥渢he school, even though it is trying to teach one point of view, can allow students to come in and undermine that point of view.鈥�
Justice Kennedy jumped in, 鈥淐an the student be allowed to wear a button that says, 鈥楻ape is fun鈥�?鈥�
Mr. Mertz said no, because 鈥渉ate speech, speech that advocates violence, then you鈥檙e in another category of speech.鈥�
鈥淣onviolent crimes are OK; it鈥檚 only the violent crimes that you can鈥檛 promote, right? Right?鈥� challenged Justice Scalia. 鈥淭his is a very, very鈥攚ith all respect鈥攔idiculous line.鈥�
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.
Chief Justice John G. Roberts Jr. had told Mr. Mertz that in addition to free speech, the case appeared to be about money.
鈥淵our client wants money from the principal personally for her actions in this case,鈥� the chief justice said.
Mr. Mertz acknowledged that Mr. Frederick had asked for money damages in the case. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had upheld that claim by holding that Ms. Morse was not immune from the lawsuit because the violation of the student鈥檚 rights was so 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� said Mr. Mertz.
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.
Even Justice Souter, who appeared sympathetic to Mr. Frederick on the core free-speech question, seemed to suggest that Ms. Morse could not have been expected to know that she was violating Mr. Frederick鈥檚 clearly established 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�
The court is expected to issue a decision by the end of its term in late June.
