JUSTICES DEBATE STUDENT'S SUSPENSION FOR BANNER

Was Off Campus When 'Bong Hits 4 Jesus' Sign Torn Down

WASHINGTON -- In a feisty session over a student's "Bong Hits 4
Jesus" banner, former independent counsel Kenneth Starr urged the
Supreme Court on Monday to let public schools ban signs, buttons or
other messages that undercut their anti-drug policy.

As scores of curious students milled in and around the columned
building, Starr argued that a principal in Juneau, Alaska, did not
violate Joseph Frederick's speech rights when she tore down the
banner he had unfurled at an Olympic Torch Relay parade in 2002.

The principal, Deborah Morse, said the "bong" phrase referred to
marijuana and suspended him for 10 days. Frederick, a senior at the
time, said his words were merely nonsense meant to draw television
cameras as students watched the parade.

A majority of the justices did not make clear how they would rule,
but they were more open to Starr's anti-drug rationale than his
broader argument that schools should be able to regulate any message
that conflicts with the far-reaching educational mission.

Monday's test of student speech rights arises as schools face
increased violence and drug use on their grounds. The National School
Boards Association, siding with Juneau officials, says administrators
should have expansive latitude to stop messages related to subjects
such as drugs, guns, homosexuality and abortion. On Frederick's side
are an unusual contingent of liberal groups, including the Lambda
Legal Defense Fund, and conservatives, including the Alliance Defense
Fund -- all worried that credible student views will be censored.

Spectators began lining up for seats before dawn for the arguments
that began at 10 a.m. Students who were not able to get seats in the
marble and velvet courtroom gathered in front of the building. Some
arrived ready to show support for Frederick and held up signs that
said "Free Speech 4 Students."

"Illegal drugs and the glorification of the drug culture are
profoundly serious problems for our nation," Starr said as he argued
that Frederick's message promoted drugs and was "utterly
inconsistent" with the basic educational mission of the school.

"The problem," said Chief Justice John Roberts, "is that school
boards these days take it upon themselves to broaden their mission
well beyond ... illegal substances." Justice Samuel Alito, too,
appeared troubled that schools would try to suppress a large swath of speech.

Responding to such concerns, Starr said, "the court does not need to
go more broadly" than the drug issue. He stressed, overall, that
Frederick's banner was "disruptive" to the school's goals.

Justice David Souter was among the few justices questioning even that
basic premise. "I can understand if they unfurled the banner in a
classroom that it would be disruptive," Souter said, "but what did it
disrupt on the sidewalk? ... It sounds like just a kid's provocative
statement to me."

Lawyer Douglas Mertz, representing Frederick, emphasized the wider
stakes of the case. "This is a case about free speech. It is not a
case about drugs."

Mertz also argued that because Frederick had joined students across
from their school, not on its grounds, the principal had even less
reason to discipline him. Roberts countered, "He came here (across
from the school) because it was the school event, the
school-sponsored activity."

Justice Anthony Kennedy was sympathetic to the efforts to counter
illegal drug use. Frederick's sign, he said, "was completely
disruptive of the message ... the school wanted to promote ...
completely disruptive of the school's image that they wanted to
portray in sponsoring the Olympics."

The U.S. Court of Appeals for the 9th Circuit ruled for Frederick
last year. It also said that Morse could be personally liable for
money damages because it was "clearly established" by past rulings
that Frederick had a right to raise his banner.

Several justices voiced concerns about that part of the ruling. "It
seems to me, however you come out, there is a reasonable debate" over
student rights in public schools, Souter said.

A ruling is likely by the end of June.