'Bong Hits' decision could curb student expression


Banner's message, location contested





Nearly 40 years have passed since Mary Beth Tinker first entered the vaunted halls of the U.S. Supreme Court. Since then, the plaintiff in the landmark student expression case Tinker v. Des Moines Independent Community School District has heard her name invoked countless times as the gold standard protecting students’ free expression rights.

Since the 1969 ruling, the “Tinker standard” has been the foundation upon which all student free speech cases have relied.

The phrase was again cited before the high court in March, during oral arguments for what could be one of a select few definitive student speech cases since the Supreme Court ruled in Tinker’s favor 38 years ago.

The pending ruling in Morse v. Frederick will determine if a school had the right to discipline a student, Joseph Frederick, after he held up a 14-foot banner reading “Bong Hits 4 Jesus” across the street from his school.

But more importantly, the outcome of the case could set an important standard for regulating student speech that would be applicable to schools across the country.

Lawsuits dealing with student free expression rights have rarely been argued before the Supreme Court. Only a handful have reached the Court since Tinker v. Des Moines.

Depending on how the justices rule, Frederick could have a substantial impact on student speech, either by reaffirming the Tinker standard or repealing some of its protections.

In Tinker, justices famously declared that “students do not shed their constitutional rights to freedom of speech at the schoolhouse gate.” The suit originated when Tinker, her brother and a friend wore black armbands to school to protest the Vietnam War. The ruling states that school officials may not punish or prohibit student speech unless they can reasonably forecast that it will result in a material and substantial disruption of school activities or invade the rights of others.

While the Frederick case contains myriad facets that might drive the Supreme Court’s decision, there are two aspects of the arguments that are direct descendents from the ruling in Tinker: the definition of “substantial disruption” and the concept of the “schoolhouse gate.”

Should the justices’ ruling concern either of these two aspects, Frederick’s name soon could, like Tinker’s, be invoked as a standard in student free speech rights. In that scenario, the Frederick case could become the most important ruling regarding the student press since 1988, when the court levied restrictions against many high school publications in Hazelwood School District v. Kuhlmeier.

What it said

Frederick has maintained that the phrase “Bong Hits 4 Jesus” was purposefully nonsensical, while the principal who disciplined him, Deborah Morse, believes it was encouraging drug use.

It is that interpretation which is the crux of the disagreement over what is a “substantial disruption,” as the Tinker standard requires. Morse’s lawyers argue that a school’s educational process is broader than classroom activity and includes instilling “the values of citizenship.” In this case, they say, the school is dedicated to teaching an anti-drug message, which Frederick undermined with his banner.

“There is an effort to prevent a message that is inconsistent with a fundamental message of the schools – which is the use of illegal drugs is simply verboten – and we believe that is permitted under Tinker,” Ken Starr, who is representing Morse, said in the courtroom.

If a majority of the justices agree, the notion of “substantial disruption” laid out 38 years ago in Tinker could be expanded to include speech that dissents from school policy. In that case, schools across the country could have a broader ability to ban independent student speech, said Adam Goldstein, attorney advocate for the Student Press Law Center.

The justices’ comments during the argument revealed possible directions the ruling could take on this argument, legal experts familiar with the proceeding said, but it would be difficult to draw a conclusion strictly from them.

There is, however, at least one other pending court case which could be weighing on the justices’ minds. The case, Guiles v. Marineau, also deals with student expression and has been appealed to the Supreme Court, although justices have not ruled on whether they will hear it.

Goldstein said it is possible that justices are taking the Guiles case and other pending cases into consideration, and the Court’s ruling in Frederick could be written so that it also address Guiles.

The tactic is known as stacking, and it is not uncommon for the high court, he said.

“They have cases pending that are all kind of on the same topic, sort of, in a way. They decide one then reverse and remand the others,” Goldstein said.

An analysis of the Guiles case, therefore, perhaps could offer insight into what facets justices are focusing on during their deliberations in Frederick.

Guiles v. Marineau originated when Zachary Guiles, a student at Williamstown Middle School in Williamstown, Vt., wore a shirt that lampooned President Bush, referring to him as “Chicken-Hawk-in-Chief” and featuring text and drawings that alluded to his alleged past drug and alcohol abuse.

In this case, the school argued it was compelled to act because the shirt was counter to the school’s anti-drug message and therefore was “inconsistent with the district’s basic educational mission.”

“Schools are arguing that they have important missions – tolerance, anti-drug message, or whatever other messages they happen to define for themselves – and that those missions are so important they trump the Constitution,” Goldstein said. “And at least some of the justices seem inclined to agree with them, based on the oral argument in Frederick.”

Where it was

The court very well could completely overlook the banner’s message in its ruling and instead focus on its location – specifically, where Frederick physically was on that January morning.

When Frederick unfurled the banner as the torch passed, he was standing on a public sidewalk across from the school, and Morse had to cross a public street to discipline him. The Supreme Court has never specifically addressed the rights of students off campus, and the justices might elect to confront the issue in the Frederick ruling.

The majority opinion in the Tinker ruling deemed “the schoolhouse gate” as an important boundary for student expression. The court made clear that its protection of student rights is in effect when students cross that threshold.

What is not clear is what rights students have before they cross the schoolhouse gate. Lower courts have traditionally split on what authority administrators have over off-campus speech,

Some simply have ruled that anything off school grounds is beyond of officials’ oversight, while others have said that officials have jurisdiction over “conduct that is directed at the school,” Goldstein said.

A ruling in Frederick that addresses the off-campus question would set a nationwide precedent. If the court rules for Frederick on the grounds that he was off campus and therefore out of the control of administrators, student rights could largely be unabridged while not on campus or at school-sponsored events such as field trips, Goldstein said.

But the Court could determine that administrators can regulate speech off campus. Rebecca Zeidel, a research assistant with the National Coalition Against Censorship, predicted that in that case the Internet could become an area where school officials look to exert authority over what students say or write. She cited social networking Web sites such as MySpace and Facebook as examples.

“Our fear is how far they can then go,” she said.

Student publications

During the March 19 hearing, justices and lawyers debated the case for more than an hour, but at no point did anyone mention the student press. Still, a ruling in the case has the incredible potential to affect the rights of student publications.

While a decision favoring Frederick likely will reaffirm the rights of student media, a ruling for Morse could have an adverse affect.

If the Supreme Court rules for Morse based on the content of the banner, school officials could have much broader ability to censor content they believe undermines their mission – whether that message comes in a student newspaper or a student-distributed pamphlet, Goldstein said.

If the Court rules that school officials have the right to suppress speech that diverges with school policy, student journalists in many contexts could face tighter restrictions on their ability to criticize the school, he said.

Alternatively, should the Court determine that Morse had the right to discipline Frederick for his off-campus speech, school officials across the country would have command of speech produced even while students are not in school – possibly including independent student publications.

During the arguments, Morse’s attorneys invoked the notion of a “school-sanctioned event.” The parade outside the school was not financially sponsored by the school. However, Morse’s attorneys argued, it was a sanctioned event because students were released from class to attend, and therefore the school maintains authority over it – even the parts off campus.

The concept of “school-sanctioned event” is not new, said Sonja West, a law professor at the University of Georgia. However, she said, this is the first time that, according to her research, it has been invoked during a student free speech case.

Previously, “school-sanctioned events” was a concept indigenous to student religious expression cases, said West, who drafted a friend-of-the-court brief in support of Frederick’s claim for the SPLC and other First Amendment advocacy organizations.

If the Court agrees with the argument and rules that administrators have authority over whatever is “school-sanctioned” it could extend the damage to the student press that was first levied with 1988’s Hazelwood School District v. Kuhlmeier.

The court ruled then that a high-school sponsored student newspaper produced as part of a class and without a “policy or practice” establishing it as a public forum for student expression could be censored – as long as school officials demonstrated a reasonable educational justification and that their censorship was viewpoint neutral.

In essence, the Hazelwood ruling provided high schools with more authority over context that they sponsored. If Frederick introduces “school-sanctioned” into the lexicon, independently produced student publications could face oversight, Goldstein said.

“They said the parade watching was sanctioned,” he said. “So if lunch is a school-sanctioned even, you can’t hand out your pamphlet during lunch.”


reports, Spring 2007