RULING IN 'BONG HITS' CASE SEEN AS LEAVING PROTECTION FOR STUDENTS' FREE SPEECH

Washington -- The U.S. Supreme Court's first major ruling in two
decades on student speech was a decisive victory for schools and
administrators in the case over a student's display of a "Bong Hits 4
Jesus" banner. But the nuances in the justices' opinions leave
significant protection for more serious political and social
expression by students.

How the court's June 25 ruling plays out for the latest generation of
student-speech disputes, including those stemming from the culture
wars over religious expression and gay rights, may take years to
figure out, legal experts say. It was only days, though, before lower
courts took note of the decision in other student-speech disputes.

"The First Amendment is a little bit wounded right now, but it has
survived," Douglas K. Mertz, a cooperating lawyer with the American
Civil Liberties Union, said right after the decision.

Mr. Mertz had argued before the Supreme Court on behalf of Joseph
Frederick, who was a senior at Juneau-Douglas High School in January
2002 when he and other students unfurled the banner at an
Olympic-torch relay outside the school in Juneau, Alaska.

Deborah Morse, then the principal of Juneau-Douglas High, was upset
by the banner's reference to drug paraphernalia. Ms. Morse asked Mr.
Frederick and the others to drop the banner, according to court
papers. When Mr. Frederick refused, he was suspended by the principal
for 10 days, an action upheld by administrators and the board of the
5,000-student district.

Francisco M. Negron Jr., the general counsel of the National School
Boards Association, said the decision in Morse v. Frederick (Case No.
06-278) showed the court "is really recognizing the realities with
which educators are faced."

Key Opinion By Alito

"Educators and principals are happy that they won't have to be
second-guessed" in disciplining students over drug-related messages,
said Mr. Negron, whose association had filed a friend-of-the-court
brief on the side of the Juneau district and Ms. Morse.

While the judgment in the case was 6-3, a five-justice majority
emphasized that schools have the authority to regulate drug-related
messages on public school campuses.

"The special characteristics of the school environment, and the
governmental interest in stopping student drug abuse allow schools
to restrict student expression that they reasonably regard as
promoting illegal drug use," Chief Justice John G. Roberts Jr. said
in the majority opinion.

The chief justice rejected Mr. Frederick's argument that the case did
not involve school speech at all because the banner was displayed on
a sidewalk across from Juneau-Douglas High. He noted that students
had been released from class during school hours to see the
Olympic-torch relay passing by their school, under the supervision of
teachers and administrators.

His opinion was joined by Justices Antonin Scalia, Anthony M.
Kennedy, Clarence Thomas, and Samuel A. Alito Jr.

Justice Alito wrote a significant concurring opinion, joined by
Justice Kennedy, that helped narrow the majority's holding by
stressing the context of the banner's perceived drug message.

Justice Alito said he joined the decision on the understanding that
it "provides no support for any restriction of speech that can
plausibly be interpreted as commenting on any political or social issue."

Justice Stephen G. Breyer filed an opinion in which he concurred in
the outcome. He said he would have ruled for the district purely on
the basis of the principal's immunity, and he would have avoided the
First Amendment question.

Justice John Paul Stevens, writing a dissent joined by Justices David
H. Souter and Ruth Bader Ginsburg, said that while the banner was a
"nonsense" message, "the court does serious violence to the First
Amendment in upholding--indeed lauding--a school's decision to punish
Frederick for expressing a view with which it disagreed."

But Justice Stevens' opinion agreed with the majority that the
principal did not deserve to face personal liability in the case, as
the appellate court had ruled.

Kenneth W. Starr, the former U.S. solicitor general who represented
Ms. Morse and the Juneau school district before the Supreme Court,
said he agreed that Justice Alito's concurrence narrowed the
decision's free-speech implications.

"Justices Alito and Kennedy expressed very strong pro-student-speech
views," Mr. Starr said in an interview. "That means that another
[student-speech] case might be decided differently."

Widely disparate groups that had filed friend-of-the-court briefs on
Mr. Frederick's side agreed.

"There appears to be a clear majority in favor of student religious
speech being protected in schools," said Casey Mattox, a lawyer with
the Christian Legal Society, in Springfield, Va., which often fights
public school restrictions on student religious expression.

Gay-rights groups had also supported Mr. Morse, and they were in
unison with religious-rights groups in welcoming the narrowness of
the decision.

"It feels to me like this decision would provide absolutely no
justification to limit speech about sexual-orientation issues" in
public schools, said Jon W. Davidson, the legal director of the
Lambda Legal Defense and Education Fund, in New York City.

Tigger And A T-Shirt

In his majority opinion, Chief Justice Roberts repeated the famous
line from the court's 1969 decision in Tinker v. Des Moines
Independent Community School District that students do not "shed
their constitutional rights to freedom of speech or expression at the
schoolhouse gate."

That case upheld students' right to wear black armbands to protest
the Vietnam War as long as school was not substantially disrupted.

Early this month, a state trial judge in California cited the Morse
decision's "reconfirming" of Tinker in a preliminary ruling halting a
strict school dress code that had ensnared a young student wearing
the Winnie the Pooh character Tigger on her socks, as well as
students wearing pink ribbons for breast-cancer awareness and a
T-shirt reading "Jesus Freak."

"Certain clothing prohibited by the attire policy did convey a
particularized message subject to First Amendment protection," Judge
Raymond A. Guadagni said about the Napa Valley Unified School
District's policy.

And on June 29, the Supreme Court declined to hear an appeal from
school administrators over the discipline of Zachary Guiles, a
Vermont student who had worn an anti-President Bush T-shirt to school
in 2004. A federal appeals court had sided with the student.

Despite the potential similarities, the justices declined to return
the appeal from administrators in Marineau v. Guiles (No. 06-757) to
the lower court for reconsideration in light of the Morse decision.

Education and the Supreme Court: The 2006-07 Term

The U.S. Supreme Court decided an unusually large number of cases
involving public and private schools, teachers' unions, and education
organizations in the term that ended June 28.

Race in Public Schools * Parents Involved in Community Schools v.
Seattle School District No. 1 (Case No. 05-908) * Meredith v.
Jefferson County Board of Education (No. 05-915)

Ruled 5-4 to strike down two school districts' race-conscious student
assignment plans as a violation of the 14th Amendment's
equal-protection clause. The majority opinion by Chief Justice John
G. Roberts Jr. said the districts did not meet their burden of
showing that their interest in maintaining racial diversity justifies
using racial classifications in making school assignments. Justice
Anthony M. Kennedy provided the fifth vote in a concurring opinion in
which he agreed to striking down the two plans at issue, but he would
not go as far as the chief justice in limiting schools' use of race.
Justice Kennedy said that schools are free to address unequal
education opportunities by devising race-conscious measures that
address the problem in a general way and without treating each
student differently based solely on an individualized focus on race.

Student Speech * Morse v. Frederick (No. 06-278)

Upheld the suspension of a student who displayed a banner with the
message "Bong Hits 4 Jesus" at a parade that passed by the student's
high school. Five justices joined an opinion by Chief Justice Roberts
that the parade was a school-sponsored event and the banner could be
interpreted as advocating illegal drug use in contradiction of
district policies that discouraged drug abuse. The majority opinion
was tempered by a concurring opinion signed by Justices Kennedy and
Samuel A. Alito Jr. that stressed the ruling was meant to be limited
to speech advocating illegal drug use and was not meant to allow
restrictions on student speech on political or social issues.

Athletics/Private School Speech * Tennessee Secondary School Athletic
Association v. Brentwood Academy (No. 06-427)

Unanimously upheld a state high school athletic association's rules
against student recruiting, which were challenged on First Amendment
free-speech grounds by a private school. The school had argued that
the association's enforcement of its rules inhibited the school's
ability to communicate with prospective students. Justice John Paul
Stevens wrote for the court that an athletic group's interest in
enforcing its rules sometimes warrants curtailing the speech of its
voluntary members.

Special Education * Winkelman v. Parma City School District (No. 05-983)

Ruled unanimously that parents have rights under the Individuals with
Disabilities Education Act and thus may represent themselves in
federal court without the assistance of a lawyer. The justices split
7-2 over the extent of those rights. Justice Kennedy, writing for the
majority, said the IDEA grants parents independent, enforceable
rights, which are not limited to procedural and reimbursement-related
matters but encompass the entitlement to a free, appropriate public
education for their child. The partial dissenters would only allow
parents to represent themselves when they sought reimbursement for
private school expenses or for procedural claims.

Teachers' Unions * Davenport v. Washington Education Association (No. 05-1589)

Ruled unanimously that a state does not violate the First Amendment
when it requires public-employee unions, such as the teachers' union
in Washington state, to get the consent of nonmembers before spending
their representation fees for election-related purposes. Justice
Antonin Scalia wrote for the court that Washington state's so-called
opt-in requirement was a "reasonable, viewpoint-neutral limitation"
on the power of public-sector unions to acquire and spend the money
of government employees.

Impact Aid Act * Zuni Public School District No. 89 v. Department of
Education (No. 05-1508)

Voted 5-4 to uphold the U.S. secretary of education's method for
calculating when states may offset federal aid to school districts
that educate children living on or near federal lands and
installations. Under the Impact Aid Act, states with equalized
funding systems may offset a portion of the amount that districts
receive in federal impact aid. The court, in an opinion by Justice
Stephen G. Breyer, backed the secretary's methodology of taking
student-enrollment data into account in figuring the top and bottom 5
percent of districts by wealth, which are then disregarded in the
equalization analysis.

Challenge to Faith-Based Initiative * Hein v. Freedom From Religion
Foundation (No. 06-157)

Ruled 5-4 that taxpayers did not have legal standing to challenge
under the First Amendment's establishment-of-religion clause certain
spending and activities by the Bush administration for its
Faith-Based and Community Initiatives. The challenged activities
included the formation of offices for such initiatives in the White
House and other federal agencies, including the Department of
Education, as well as administration-sponsored speeches and
conferences that promoted the efficacy of faith-based programs in
providing social services. No opinion commanded a majority, but the
plurality opinion by Justice Alito said that a taxpayer's interest in
seeing that executive-branch funds were spent in accordance with the
U.S. Constitution was too attenuated to result in a personal injury
that would give rise to legal standing.

SOURCE: Education Week