EXPERTS - RIGHT CALL ON MAGNET

Eastern York's Case Like 'Bong Hits 4 Jesus' Case, They Say

David Hudson said he doesn't know whether the Eastern
York School District would have a legal leg to stand on if it had
continued a ban on students' magnets in schools, or just the magnet
that said, "Smile God Loves You." He's waiting to hear how "Bong Hits
4 Jesus" turns out.

That case, which awaits a Supreme Court ruling expected in June,
started five years ago when a high-school principal confiscated a
student's banner bearing the drug and religious references. And it has
a lot in common with the issue at Wrightsville Elementary School, said
Hudson, a lawyer and scholar at the First Amendment Center.

Both pit freedom of religion, as currently interpreted, against
freedom of speech, as currently interpreted.

And all that interpretation could be thrown out the window when the
court rules on the "Bong" case.

Student's views, or school's?

Earlier this month at an Eastern York School District board meeting,
an upset parent recounted what she saw as a free-speech violation at
her daughter's school.

The student at Wrightsville Elementary School had put a magnet on her
desk that said, "Smile God Loves You."

Her teacher had her take it down because he wasn't sure the religious
reference would be allowed, the girl said last week. Then, to be fair,
the principal ordered all magnets should go from school desks.

But the district consulted with its lawyers and reinstated the
students' right to post magnets.

Supt. Darla Pianowski said Principal Donald Gillett did what he
thought was best for the school at the time.

She said that, in the future, the district's schools will use the
district's policy for student expression.

The policy states: "Students have a right to express themselves unless
such expression materially and substantially interferes with the
educational process, threatens immediate harm to the welfare of the
school or community, encourages unlawful activity, or interferes with
another individual's rights."

The American Civil Liberties Union has taken positions supporting free
speech as well as supporting the Establishment Clause of the
Constitution, which prohibits government-sponsored religion.

In this instance, the girl has a right to express a religious idea,
said attorney Mary Catherine Roper.

Roper, staff attorney with the ACLU of Pennsylvania, said the school's
policy and its eventual ruling on how to handle the issue are right on
the money.

"I think eventually they got to exactly the right place," Roper
said.

Roper said that, because the view expressed was solely that of the
student and not the district, and that since the district allows
expressions on its property, there was no legal way for the district
to edit the message.

Nor should there be, she said.

Current case law and precedents, Roper said, deny schools the ability
to discriminate against messages.

"We would certainly defend the right of the girl," Roper said.

The Columbine effect

Roper also said an ambivalent reaction as to how to proceed is
understandable from the district.

The legal framework around religion and speech in public schools can
be complicated.

A continuation of the ban wouldn't have surprised Charles C. Haynes,
another fellow at the First Amendment Center. He characterized the
years since the Columbine school shootings as a slow progression away
from rights in public schools.

Everyone is worried about speech, in part because the shooters of
Columbine talked about killing people, then they did it.

Since then, every bit of speech has been scrutinized, with a belief
that limiting speech would limit problems.

But Haynes also said schools with open rules on speech have fewer
disciplinary problems and enable students to learn better. Students
are also less disconnected in the classroom because they do not feel
alienated.

However, most schools are not that way, he said.

"We're in a sad state of affairs," Haynes said. He called the
temporary magnet ban "a silly overreaction."

The current case before the U.S. Supreme Court, "Bong Hits 4 Jesus,"
could turn the power of deciding what constitutes free speech in a
public school over to the judgment of administrators.

In the case, Alaska high school student Joseph Frederick was suspended
for five days in 2002 for unfurling a banner that said "Bong Hits 4
Jesus" after he and other students were dismissed from class to see
the Olympic torch parade by their school.

He told a principal it was his First Amendment right to display the
message.

That got him another five days of suspension, according to reports.

The principal, Deborah Morse, thought the banner advocated drug use
and should be taken down because it could offend those who could see
it.

An appeals court ruled the banner was covered by free speech. Former
federal prosecutor Ken Starr, on behalf of the Juneau School Board,
petitioned the U.S. Supreme Court to hear the case.

Starr said the principal's judgment call should be the law of the
land.

In the Wrightsville case, the school's initial call to ban magnets
could be supported if the court rules for Juneau, said Hudson, whose
free speech books include "The Rights of Students."

"We might have a new understanding come June," Hudson
said.

About Eastern York's case

A student was asked by a teacher at Wrightsville Elementary at the end
of March to take down a magnet from her desk that said "Smile God
Loves You" because of the Constitution's Establishment Clause that
prohibits government-sponsored religion.

The student's parent complained. The school then temporarily banned
all magnets from students' desks.

But the Eastern York School District's lawyer advised the district to
reinstate all magnets, including the one with the religious message.
First Amendment experts said it was an easy call to allow the magnet,
but that could change pending a ruling in a case before the Supreme
Court.

About 'Bong Hits 4 Jesus'

A student unfurled a banner in 2002 that said "Bong Hits 4 Jesus"
outside a Juneau, Alaska, high school while the Olympic torch was
paraded by the school. A principal told him to put the banner down. He
took the issue to court, and, five years later, it went before the
U.S. Supreme Court.

The school district's lawyer, Ken Starr, argued last month that
then-student Joseph Frederick's banner was not protected speech
because it dissented from the school's official anti-drug message and
as such was disruptive speech.

Frederick's lawyer, Douglas K. Mertz, said that in a public event at a
public place, the sign was not disruptive.

A ruling is expected in June. A finding in favor of the district could
create case law allowing a principal nearly sole discretion to
regulate speech in a public school, legal experts say.

Excerpts of what Supreme Court justices said during the
hearing:

School officials could "suppress all sorts of political speech and
speech expressing fundamental values of the students under the banner
of getting rid of speech that's inconsistent with the educational mission."

Justice Samuel A. Alito Jr.

"If the design had been 'Bong "Stinks" for Jesus,' would the
reaction have been the same?"

- -Justice Ruth Bader Ginsburg

"It's political speech. I don't see what it disrupts."

Justice David Souter

"If kids go around having banners making a joke out of drug use,
that really does make it a little tougher for me to convince the
students at this school not to use drugs."

Justice Stephen Breyer

"There's a broader issue of whether principals and teachers around
the country have to fear that they're going to have to pay out of
their personal pocket whenever they take actions pursuant to
established board policies."

Chief Justice John Roberts Jr.

The New York Times contributed to this report.