SPLC

Since the speech took place outside of a classroom but during the school day and the expression did not disrupt school activity, the school cannot censor the speech, the 9th U.S. Circuit Court of Appeals said.

The decision was based on a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District. In Tinker, students wore black armbands to school to protest the Vietnam War. The Supreme Court ruled in that case that students' First Amendment expression rights at school can only be withheld if the expression will cause a ''substantial disruption'' of school activities.

School officials agree that the ''Bong Hits 4 Jesus'' banner did not disrupt classroom activity.

''They concede that their objection to the display, and the reason why the principal ripped down the banner, was not concern that it would cause disruption but that its message would be understood as advocating or promoting illegal drug use,'' the court said in its decision.

Speech taking place outside of the classroom cannot be censored simply because it conflicts with a school's educational mission, the court said, holding that the 1988 Hazelwood Supreme Court decision did not apply to the facts of this case.

Joseph Frederick, a student at Juneau-Douglas High School, displayed the banner in an effort to attract TV cameras as the Winter Olympic torch relay was passing the school in 2002. Juneau-Douglas High School Principal Deborah Morse grabbed the banner from Frederick and suspended him for 10 days.

Frederick has said the phrase ''Bong Hits for Jesus'' was meaningless and funny. But Juneau-Douglas Principal Deborah Morse has argued the term ''bong hits'' promoted marijuana use, which contradicted the school's drug-free mission.

After appealing unsuccessfully to the school board, Frederick sued the school district for damages, removal of the suspension from his records and a declaration that his rights had been violated. A federal district court ruled against him and the appeals court overruled that decision.

Not only was the principal wrong in punishing Frederick for his speech, but also she should have known better, the appeals court said. The court cited an earlier case to say Morse has no qualified immunity defense because ''a reasonably competent public official should know the law governing [the official's] conduct.''

Qualified immunity enables the government to avoid paying damages if the law is unclear enough that a government official may not have known he or she was breaking the law.

''This is no case of ignorance,'' the decision said. ''The law was clear and Morse was aware of it.''

David Crosby, a lawyer for Morse and the school district, declined to comment on the decision.

Frederick's lawyer, Douglas Mertz, said the decision has caused concern in Juneau that the ruling will jeopardize the school's anti-drug stance.

''That's not the case,'' Mertz said. ''They must tolerate whatever dissent exists, as long as the dissent is non-disruptive.''

Mertz said the decision reinforces that students have First Amendment rights that school officials cannot infringe upon.

''It solidified what the law has been all along,'' Mertz said. ''That government officials may not decide for themselves what speech is offensive and contrary to public policy.''

--by Emily Walker, SPLC staff writer