Advocates counting on Alito, Kennedy concurrence to limit decision's scope





Reaction to the U.S. Supreme Court’s June decision in Morse v. Frederick was almost as varied as the judgment of the Court, which issued five opinions in the first high school student-speech decision since Hazelwood v. Kuhlmeier in 1988.

Delivering a majority opinion, two concurring opinions, one dissent and one partial dissent, the Court carved out an exception to the 1969 landmark case Tinker v. Des Moines Independent Community School District, ruling that schools do not violate a student’s First Amendment free-speech rights by punishing speech that advocates illegal drugs at a school-sanctioned and school-supervised event.

The free-expression organizations that filed friend-of-the-court briefs in support of Joseph Frederick interpreted the ruling as a narrow exception to students’ reaffirmed free-speech rights while supporters of Principal Deborah Morse saw the decision as an affirmation that administrators need to have control over some expression.

Friends of Frederick

Many of the nation’s free-speech advocates focused on what they call the silver lining of the Morse decision.

Relying on Associate Justice Samuel Alito’s concurring opinion, in which Associate Justice Anthony Kennedy joined, they believe the Court ensured that the new restriction allowing censorship of speech advocating the use of illegal drugs does not extend to political or religious speech.

Adding Alito and Kennedy’s votes to the three dissenters — Associate Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter — created a fragile five-justice majority for rejecting a broad school-censorship ruling, many said.

Alito wrote that he joins the opinion of the Court only if “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 it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

Rebecca Zeidel, a research assistant and coalition coordinator at the National Coalition Against Censorship, said this declaration goes a long way to ensure that the Court’s ruling is a narrow one.

“We’re disappointed that Frederick lost,” Zeidel said. “But given the outcome, we were pretty pleased by the concurring opinion that Justices Alito and Kennedy wrote, which limited the majority opinion by being very specific as to the kinds of restrictions school officials can make.”

Jordan Lorence, senior vice president of the Alliance Defense Fund, a conservative free-speech advocacy group, agreed that the concurring opinion may limit the ruling but fears administrators will ignore that limit.

“The Alito concurrence, joined by Justice Kennedy, recognizes the potential dangers of the majority opinion and seeks to limit it to situations where students advocate illegal drug-use,” Lorence said in a statement from his office. “However, school officials will undoubtedly try to expand the reach of the majority’s opinion in order to censor student speech that dissents from the official school policy.”

Lorence added that he worries this ruling could be used to justify censorship of speech that is not drug-related.

“It’s a dangerous idea that government may censor speech based on the vague concept of ‘school mission,’” he said. “Say a school in San Francisco decided its mission was to support what they call ‘complete equality for gays and lesbians, women’s health and absolute religious diversity.’ That may mean that said school could censor pro-marriage, pro-life and pro-Christian points of view.”

But Casey Mattox, litigation counsel for the Christian Legal Society, said he is not worried about principals misusing the decision to restrict other speech.

“The Court said time after time in the opinion and certainly in Justice Alito’s concurring opinion that religious student speech is not covered by this opinion,” Mattox said.

And Michael Rosman, general counsel at the Center for Individual Rights, said the Court’s ruling is so narrow that schools will have a hard time applying it to other cases.

“It would be very difficult to predict what other effects this will have … because I don’t think the Court adopted any general broad principle that is applicable outside the specific facts of this case,” he said.

Student Press Law Center Executive Director Mark Goodman agreed that this decision should not have a broad legal impact, but said that he is concerned about the implications for the future.

“The law was clearest when the courts applied the single fact-based Tinker substantial disruption standard in determining the legality of school officials’ acts of censorship,” he said. “Every subsequent Supreme Court decision on the subject just makes things less clear. My concern is how many more cases will it take for the exceptions to free-expression protections to swallow up the rule?”

On the other side

Groups that filed friend-of-the-court briefs in support of Morse saw the decision more as a guideline for principals than a restriction for students.

Gerald Tirozzi, the executive director of the National Association of Secondary School Principals, called the decision a “loud and clear message” in support of principals.

The Court affirmed that a “principal does have the discretion” to take the necessary steps to “maintain a safe and orderly environment,” he said.

Francisco Negrón, general counsel for the National School Boards Association, said the decision reaffirms “the school’s role in regulating messages that are detrimental to student welfare.”

“The Court clearly spoke to the health and well-being of our students, not their constitutional rights of free speech,” Negrón said in a statement from the association.

Other Morse supporters viewed the decision more narrowly. Bruce Hunter, the associate executive director of the American Association of School Administrators, said the ruling tested a set of facts that had not been tested before: advocacy of illegal drug-use at a school-sponsored activity off campus.

“Starting with Tinker, then Bethel, then Hazelwood, now this one: In every case, the rules of the road get clearer on what administrators can and cannot do,” Hunter said.

When students are approaching the line of speech not protected by the First Amendment, principals must decide instantly whether to censor. They must consider all case law and possible consequences, Hunter said.

“Every bit of clarification helps,” he said.

And Bill Ferranti, an attorney representing organizations such as D.A.R.E. America and Drug Free America Foundation Inc., said the Court had to balance two important interests: student expression and student safety from drugs.

“The Court did best they could,” he said.

Ferranti, like many Frederick supporters, said he liked Alito’s opinion because it gives principals the tools they need to battle illegal drug use without infringing too much on student speech.

The fact that groups supporting Frederick, as well as those supporting Morse, are emphasizing Alito’s opinion “goes to show how much everybody values free-speech issues,” he added.


Fall 2007, reports