JUSTICES WEIGH FREE SPEECH VS. SCHOOL CONTROL

Washington, DC -- The Supreme Court on Monday debated the weighty
question of how restrictive schools can be in restraining students'
free-speech rights, but the case will turn on whether a teacher who
suspended a student for carrying a 14-foot banner reading "Bong Hits
4 Jesus" went too far.

Joe Frederick, then a student in Juneau, Alaska, was standing across
the street from his high school with friends at a Winter Olympic
Torch relay event in January 2002. Students had been let out to watch
the event, and as the television cameras rolled by, Frederick and his
friends unfurled the banner.

Frederick later said it was just a funny way to get on TV. But when
Principal Deborah Morse saw the sign, she confiscated it, suspending
Frederick for 10 days for advocating illegal drug use with the phrase
"bong hits." And youthful exuberance turned into a federal case.

Deputy U.S. Solicitor General Edwin Kneedler, who argued on behalf of
Morse, told the justices: "The question isn't what Mr. Frederick
intended. The question is what a reasonable observer would think."

But some seemed unconvinced that Frederick was advocating drug use.

"If the design had been 'Bong "Stinks" for Jesus,' would the reaction
have been the same?" asked Justice Ruth Bader Ginsburg. "One could
look at these words and say it's just nonsense . it isn't clear that
this is 'smoke pot.'"

The line of demarcation between a student's right to speak freely and
a school's right to institute discipline has traditionally been drawn
at speech disruptive to the educational process. That was the
standard used in the 1969 case most often cited in school free-speech
disputes: Tinker vs. Des Moines Independent Community School
District, in which 1st Amendment rights //were upheld for students
suspended for wearing black armbands to protest the Vietnam War.

Yet in each successive case, the court has sided with schools,
stepping back from the Tinker standard to give educators more benefit
of the doubt. The high court in 1986 instituted a special exception
in cases involving "vulgar and offensive language" and in 1988
allowed schools to restrict speech in school-sponsored forums.

The court has not, however, considered a student free-speech rights
in nearly 20 years. And for Monday's argument the court was filled
with spectators while demonstrators opposed to the Alaska principal
paraded outside the court, and Kenneth Starr, the special prosecutor
who dueled with President Bill Clinton, made a pro bono appearance
for Morse inside. Still, it is unclear whether the justices will
break new legal ground.

"A little bit of this will depend on whether this event was
considered to be in school or out of school," Fred Schauer, a
professor specializing in 1st Amendment studies at Harvard's John F.
Kennedy School of Government, said in an interview. "If it is
considered in-school, there's not a whole lot of indication that this
is going to be a particularly huge decision."

If the court decides that Frederick, now in China teaching English,
was in school during the torch parade, Morse could discipline him
provided that the court finds that displaying the banner was a disruptive act.

Frederick's lawyer, Douglas Mertz, argued that in a parade
environment, where others were throwing snowballs and even Coke cans,
a banner could not have been disruptive.

But Justice Stephen Breyer said, "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."

Chief Justice John Roberts Jr. said, "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."

There also is the issue of whether a decision in the case will bear
any significance for other student free-speech cases in the lower
courts, dealing with everything from Nazi and Ku Klux Klan insignias
to homosexuality to prayer in school.

"Depending on what the decision is, the court can either make a big
difference for the future ... or leave us in the status quo," said
University of Chicago law professor Mary Anne Case.