'BONG HITS' CASE MAY CLARIFY SCOPE OF STUDENT SPEECH

Inside the First Amendment

What do you think "Bong Hits 4 Jesus" means?

The U.S. Supreme Court heard March 19 from lawyers for former student
Joseph Frederick, who says it means nothing -- and for the
Juneau-Douglas, Alaska, school system that suspended Frederick for
displaying it on a banner, who say it's drug-related and disruptive.

Whatever the meaning of the "slogan," or lack of one, the case is not
about bongs or Jesus -- it's about the extent to which public school
officials can or should control the speech of students who attend
their schools.

Frederick admits he just wanted to get on TV -- and to irritate his
principal, Deborah Morse, when he displayed the banner in 2002 from a
public sidewalk across from school property. He's an unlikely hero
for student-expression advocates: "I never professed to be a saint,"
Frederick told the Associated Press. ABC News reported that the
self-professed non-saint, now teaching in China, had earlier been
disciplined for failing to obey a teacher's command to leave a common
area and for remaining seated during the Pledge of Allegiance.

Morse, for her part, is alleged to have gone across the street after
spotting the sign, up onto a public sidewalk where Frederick was
standing, and to have pulled the banner from Frederick's hands.
Frederick claims in court that Morse later doubled Frederick's
initial five-day suspension when he cited free-speech principles and
Thomas Jefferson, but Morse disputes that account.

Morse v. Frederick is worth tracking because of its potential to
strike at the heart of a landmark 1969 landmark case in which the
U.S. Supreme Court declared students do not "shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate." In Tinker v. Des Moines Independent Community
School District, the Court said student speech is protected unless
school officials can reasonably forecast that it will disrupt the
educational process. The students in the Tinker case had had worn
black armbands to school to protest deaths in the Vietnam War.

The "bong" case has attracted interest and legal briefs from more
than a dozen national groups, on both sides -- including groups not
always in agreement. A number of conservative and liberal
organizations, including the American Center for Law and Justice and
the Alliance Defense Fund, two of the leading Christian
legal-advocacy groups, along with the American Civil Liberties Union
and the Lambda Legal Defense and Education Fund, found common ground
in support of open student expression. The National School Boards
Association urged the court to grant review in the case "to afford
critical guidance to school administrators regarding free speech rights."

To be sure, in decisions that followed Tinker by about 20 years, the
court already has permitted school officials to regulate student
speech that is vulgar, lewd or "plainly offensive," and given them
greater powers to censor school-sponsored student newspapers.

Student-speech advocates warn that the ruling in Morse, if the
school's position prevails, could embolden superintendents and
principals to broaden even more the scope of what they see as
disruptive, and even to reach into cyberspace to discipline students
for Web postings that administrators view as opposed to school
policies or disruptive.

For their part, groups lining up behind the school system say that to
permit Frederick's prank is to weaken the ability of educators to
maintain order, educate and protect students in a post-Columbine-shooting era.

And because Frederick is seeking monetary damages, saying Morse
should have known she was violating his basic constitutional rights,
the argument is made that every school authority will be fearful of
taking action against a disruptive student because of potential
personal liability.

At the very least, the case could offer a 21st century update to the
rules by which students and administrators will operate -- the first
such time in 20 years the court has revisited a trio of such cases
that began with Tinker and ended in the 1980s. And it certainly could
have an impact on a host of other controversies involving student
speech that have bubbled up in recent months, from T-shirt messages
critical of President Bush to Web postings that attack teachers to
student newspaper editorials that discuss gay rights.

And, as Justice Samuel Alito noted during oral arguments, the
upcoming decision in Morse also may affect yet another contentious
issue for students and administrators: the extent to which students
may express their religious views in public schools.

That's a lot of serious issues for a case with a silly nickname.