STUDENT FREE SPEECH VS. SCHOOL DRUG POLICY

The US Supreme Court Is Set to Hear the Case of an Alaska Teen Who Was
Suspended After Unfurling a Banner Near School.

A dispute over a student prank near a high school in Juneau, Alaska,
is raising constitutional questions about student free speech and
whether school officials can be sued for damages when they take action
to muzzle a teenager's attempt at humor.

On Monday, the US Supreme Court takes up a case involving a
student-displayed banner that proclaimed: "Bong Hits 4 Jesus."

At issue is whether a high school principal violated the free-speech
rights of a student in 2002 when she confiscated the banner and
suspended the student for 10 days after he and others unfurled the
sign in front of much of the student body and local television cameras.

The principal's action was upheld by the school superintendent, the
Juneau School Board, and a federal judge. But a three-judge panel of
the Ninth US Circuit Court of Appeals reversed the federal judge,
ruling that the principal could be sued personally for money damages
for violating the student's clearly established free-speech rights.

To Deborah Morse, principal of Juneau- Douglas High School, the banner
glorified illegal marijuana use in violation of the school's antidrug
policies. "Promotion of illegal drug use and the drug culture is
uniquely undeserving of First Amendment protection in the school
setting," writes Kenneth Starr, former US solicitor general and a
former appeals-court judge, in his brief on behalf of Ms. Morse.

The student, Joseph Frederick, and his lawyers say the principal is
misconstruing the case by portraying the central issue as whether
schools have the authority to prohibit pro-drug statements by students
while on school grounds.

The banner was never displayed on school property during a
school-sponsored activity, they say, and it did not cause any
disruption to the educational process.

"This case is not about drugs. This case is about speech," says Juneau
lawyer Douglas Mertz in his brief to the court on behalf of Mr. Frederick.

Ramifications for Both Sides

The case is being closely watched by school administrators and
antidrug officials who are concerned that a ruling upholding the
appeals court could undercut school efforts to foster a drug-free
atmosphere. On the other side are free-speech advocates who worry that
a Supreme Court endorsement of the principal's approach would open the
door to widespread censorship of students.

"[Morse has] asked the court to enunciate a very broad rule that
school officials have discretion to censor any kind of student speech
that they deem contrary to the educational mission of the school,"
says Preeta Bansal, a New York lawyer who authored a
friend-of-the-court brief for the National Coalition Against
Censorship. Such discretion would be standardless and "very
dangerous," she says.

In his brief, Mr. Mertz asks the justices to examine whether school
administrators have the power to censor speech solely because it
disagrees with the school's own preferred message.

"There is no dispute that schools have an important message to deliver
regarding the perils of drug abuse," he writes. "But the First
Amendment recognizes a critical distinction between delivering that
message to students and imposing an enforced orthodoxy that tramples
free speech."

The case revolves around an incident that took place in January 2002
when the Olympic torch relay passed through Juneau on its way to Salt
Lake City for the Winter Olympics. The torch was set to be carried
down Glacier Avenue in front of the high school. School officials
allowed students to assemble in front of the school to watch the event.

As the torch and television cameras approached, Frederick and nine
other individuals standing across the street from the school unfurled
the banner, which was 14 feet in length.

The banner was meant as a meaningless and humorous phrase that might
attract the attention of the TV cameras covering the relay, Mertz
says. It was a joke, not an advertisement urging students to use
illicit drugs, the lawyer says in his brief.

But if it were just a joke, the principal wasn't laughing. She crossed
the street and confronted those holding the banner. Frederick refused
to take it down, saying he had a First Amendment right to display the
banner since he was across the street and off school grounds.
Frederick says he told the school administrator that Thomas Jefferson
once said that free speech can't "be limited without being lost."

The principal confiscated the banner and suspended Frederick from
school for 10 days.

Limits Already OK'd By the Court

The Supreme Court has ruled in earlier cases that while students
possess free-speech rights, those rights can be limited by school
officials when students are participating in school-sponsored
activities and their speech is disruptive. The question presented in
Morse v. Frederick is how and when those limits may be imposed.

Mr. Starr says the case is about whether school officials have the
authority to enforce a school policy against displaying messages that
promote illegal drug use. He says if the Ninth Circuit ruling stands,
school officials will not only be unable to enforce their rules, but
they may also be sued by students for damages for trying to enforce an
antidrug atmosphere.

"The Ninth Circuit has dramatically altered the legal landscape of
public education law in the United States," Starr says. "The court of
appeals' uncompromisingly libertarian vision is deeply unsettling to
public school educators across the country."

Mertz says the case does not implicate a school board's power to
enforce an antidrug message at school. His client was not on school
property, and the torch relay was a citywide Olympic event, not a
school event, he says.

Starr concedes that the banner was not on school property, but he says
the viewing of the torch relay was a school-related activity and that
school officials maintain authority over students attending
school-related activities. The banner disrupted and undermined the
school's antidrug mission, he says.

A decision in the case is expected by June.