WHEN SCHOOLS SUPRESS SPEECH

WHEN Joseph Frederick, a Juneau, Alaska, high school senior, unrolled
a 14-foot banner proclaiming "Bong Hits 4 Jesus" at a 2002 Winter
Olympics torch relay rally near his school, he was trying to attract
TV cameras. Instead he caught the eye of Deborah Morse, the school's
principal, who crossed the street, grabbed the banner, crumpled it
up, and suspended Frederick for 10 days.

Morse was offended not by the banner's religious content, but by what
she took to be its pro-marijuana message, which she felt undermined
the school's anti-drug stance.

When the U.S. Supreme Court considered the constitutionality of
Morse's heavy-handed censorship on Monday, it seemed a majority might
accept her interpretation and obligingly carve out a "drug exception"
to the First Amendment.

It's about time. The high court has been using drug cases to whittle
away at the Fourth Amendment's prohibition of unreasonable searches
and seizures for years, leaving speech rights untouched. If achieving
a drug-free society means students must hand over their urine to
participate in extracurricular activities, why should they be free to
mock anti-drug orthodoxy, even unintentionally?

"Illegal drugs and the glorification of the drug culture are
profoundly serious problems for our nation," Kenneth Starr told the
Supreme Court during oral arguments in the "Bong Hits 4 Jesus" case.

And if linking the drug culture to Jesus Christ doesn't qualify as
glorification, what does?

Starr, a former solicitor general, feels so strongly about the issue
that he is representing Morse and the school district for free. On
the other side are the usual suspects: the American Civil Liberties
Union, the Drug Policy Alliance, Pat Robertson's American Center for
Law and Justice . . . Wait a minute.

It turns out that Robertson's group, which probably doesn't share
whatever sentiment Frederick's cryptic banner expressed, is not the
only group representing the interests of religious conservatives that
is defending the right to offend school administrators. The Christian
Legal Society, the Alliance Defense Fund, the Rutherford Institute
and the Liberty Legal Institute also are alarmed by the sweeping
claim that public school officials may censor any speech they
consider contrary to their "educational mission," even if it happens
off campus.

Where does that leave students who condemn abortion or homosexuality,
question evolution or insist on the importance of Holy Scripture in
resolving moral issues?

The question doesn't seem to trouble the Bush administration, for
which hostility toward civil liberties is a more consistent theme
than friendliness toward the religious right. Deputy Solicitor
General Edwin Kneedler told the Supreme Court a school "does not have
to tolerate a message that is inconsistent" with its educational mission.

Justice Samuel Alito called this argument "very, very disturbing,"
noting that schools could suppress a wide range of speech "under the
banner of getting rid of speech that's inconsistent with educational
missions." That banner is even vaguer than "Bong Hits 4 Jesus."

When it ruled that confiscating Frederick's banner violated the First
Amendment, the U.S. Court of Appeals for the 9th Circuit said
censorship of student speech is unjustified "in the absence of
concern about disruption of educational activities." No one claims
Frederick, who displayed the banner at a school-approved but
privately sponsored event on a public street, was preventing students
from learning.

Yet according to Justice Anthony Kennedy, whom The New York Times
alarmingly describes as "perhaps the most speech-protective of the
justices," the banner was "completely disruptive" because it
contradicted "the message . . . the school wanted to promote."
Kennedy, the Times reports, is "highly pro-government on issues
involving illegal drugs."

Presumably, then, Kennedy also would take a dim view of a message
such as "Legalize It." How strange it would be if students had a
constitutional right to wear armbands protesting the Vietnam War, as
the high court has held, but did not have a constitutional right to
wear T-shirts protesting the war on drugs.