'BONG HITS' FOR STUDENT SPEECH

The high court gives schools a Pyrrhic victory--and little practical guidance.

Two months have passed since the U.S. Supreme Court issued its
decision in Morse v. Frederick (also known as the "Bong Hits 4 Jesus"
case), the first major case involving students' free-speech rights
since 1988. ("Ruling in 'Bong Hits' Case Seen as Leaving Protection
For Students' Free Speech," July 18, 2007.)

And while commentators may continue to debate the merits of the
court's ruling, almost all agree that it provides little in the way
of practical guidance for the next teacher or administrator who has
to make an on-the-spot disciplinary decision about drug-or
alcohol-related student speech. In fact, if anything, the decision
appears to make the boundaries between protected speech and
punishable speech even less clear than before.

Prior to Morse, there was a reasonably clear bright-line test:
Student speech that was disruptive or lewd could be punished, while
other speech could not. Now, even First Amendment scholars are unsure
how courts will treat the great majority of student speech that
mentions drugs or alcohol.

The problem lies in differentiating speech that a school official may
"reasonably regard as promoting illegal drug use" from speech that
"can plausibly be interpreted as commenting on any political or
social issue" (including "the wisdom of the war on drugs or of
legalizing marijuana for medicinal use"). According to the majority
opinion, written by Chief Justice John G. Roberts Jr., speech in the
first category may be punished. But, in a concurring opinion,
Justices Samuel A. Alito Jr. and Anthony M. Kennedy said that speech
in the latter category is constitutionally protected. Because
Justices Alito and Kennedy's votes were necessary to form the
majority, their caveat to the Roberts opinion is the controlling legal rule.

In the abstract, dividing drug-related speech into these two
categories might seem like reasonable compromise. Unfortunately, as
educators well know, in the real world rarely is speech as black and
white as "Bong Hits 4 Jesus" (punishable) or "Legalize Bong Hits"
(not punishable). A sizable portion of student speech related to
drugs or alcohol, if not a majority, could be placed in both
categories: possibly promoting drug use and plausibly commenting on a
political issue. More importantly for purposes of potential legal
liability, instances of speech that is completely devoid of any
plausible political or social commentary, such as the "Bong Hits"
banner, are likely to be exceedingly uncommon.

Take, for example, the statement "I encourage anyone who has cancer
to use marijuana because it has medicinal value and, as an added
bonus, it may get you high." It certainly promotes the use of an
illegal drug. It is equally difficult to dispute, however, that the
statement also comments on a political and social issue. Ironically,
even a more outlandish phrase like "Bong Hits 4 Justice Roberts"
would almost surely be protected speech, as a political criticism of
the court's decision.

So, how are school officials supposed to determine when drug-or
alcohol-related speech may plausibly be viewed as offering political
commentary? Especially when the mistake of failing to recognize the
"plausible" political or social dimensions of a phrase may open you
up to a lawsuit. Regrettably, neither the majority nor concurring
opinion offers even the most basic direction or advice.

In determining how to treat student speech about drugs in the
aftermath of the "Bong Hits 4 Jesus" case, then, school officials who
wish to avoid legal hassles would be wise to err on the side of
caution and restrict speech in only the clearest circumstances.

On the bright side, this approach isn't just prudent as a legal
matter, it also makes for good policy. This is because we will never
be able to stop drug abuse without listening to the unvarnished views
of students.

Drug policies have a more direct and personal effect on students'
daily lives than perhaps any other national policy issue. Beginning
in elementary school, students are taught about controlled substances
through the zero-tolerance approach of the DARE program, or Drug
Abuse Resistance Education, which is used by 80 percent of all public
schools. In high school, nearly one-quarter of all students are given
drug tests in school, according to the Institute for Social Research
at the University of Michigan. After graduation, students who have
abused drugs and hope to turn their lives around by going to college
may be denied federal financial aid if they are convicted of a drug
offense, under the controversial drug provision of the federal Higher
Education Act.

Students are also deeply affected by drug policies outside of school.
Young people often experience disproportionate pain in seeing family
members, friends, and classmates suffer from drug abuse.
Mandatory-minimum-sentencing laws, for example, have a significant
impact on the children of offenders, who are forced to grow up
without one or both parents. In fact, 67 percent of incarcerated
parents in the federal system are in prison because of a drug offense.

Because students are at the center of the nation's discussion about
drug policy, their interest in freely participating in the debate
should be embraced and protected by schools, not stifled. So long as
they are not disruptive or disrespectful, allowing students to openly
express their views about drug abuse and drug policy (whatever those
views are) is critical if we ever hope to solve the intractable
problem of drug abuse.

After all, how can we accurately evaluate the success of our current
drug policies, or search for new approaches, without allowing the
people most directly affected to freely discuss and debate them?

No lesser authority than the 1990 National Commission on Drug-Free
Schools recognized this key fact, explaining in its final report that
it gave students' views significant consideration because of the
impact drugs have on them, and because "any effort to eliminate drug
problems must have the cooperation and support of young people."

Thus, even if the Supreme Court had sanctioned broad restrictions on
student speech about drugs or alcohol as a constitutional matter,
there would be important policy considerations weighing against their
implementation. As things stand, though, school officials arguably
have an even more important reason for continuing to step lightly in
the area of student speech about drugs and alcohol: staying out of court.