FREE-SPEECH CASE DIVIDES BUSH AND RELIGIOUS RIGHT

WASHINGTON -- A Supreme Court case about the free-speech rights of
high school students, to be argued on Monday, has opened an unexpected
fissure between the Bush administration and its usual allies on the
religious right.

As a result, an appeal that asks the justices to decide whether school
officials can squelch or punish student advocacy of illegal drugs has
taken on an added dimension as a window on an active front in the
culture wars, one that has escaped the notice of most people outside
the fray. And as the stakes have grown higher, a case that once looked
like an easy victory for the government side may prove to be a much
closer call.

On the surface, Joseph Frederick's dispute with his principal, Deborah
Morse, at the Juneau-Douglas High School in Alaska five years ago
appeared to have little if anything to do with religion -- or perhaps
with much of anything beyond a bored senior's attitude and a harried
administrator's impatience.

As the Olympic torch was carried through the streets of Juneau on its
way to the 2002 winter games in Salt Lake City, students were allowed
to leave the school grounds to watch. The school band and cheerleaders
performed. With television cameras focused on the scene, Mr. Frederick
and some friends unfurled a 14-foot-long banner with the inscription:
"Bong Hits 4 Jesus."

Mr. Frederick later testified that he designed the banner, using a
slogan he had seen on a snowboard, "to be meaningless and funny, in
order to get on television." Ms. Morse found no humor but plenty of
meaning in the sign, recognizing "bong hits" as a slang reference to
using marijuana. She demanded that he take the banner down. When he
refused, she tore it down, ordered him to her office, and gave him a
10-day suspension.

Mr. Fredericks's ensuing lawsuit and the free-speech court battle that
resulted, in which he has prevailed so far, is one that, classically,
pits official authority against student dissent. It is the first
Supreme Court case to do so directly since the court upheld the right
of students to wear black arm bands to school to protest the war in
Vietnam, declaring in Tinker v. Des Moines School District that "it
can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate."

The court followed that 1969 decision with two others during the 1980s
that upheld the authority of school officials to ban vulgar or
offensive student speech and to control the content of school
newspapers. Clearly there is some tension in the court's
student-speech doctrine; what message to extract from the trio of
decisions is the basic analytical question in the new case, Morse v.
Frederick, No. 06-278. What is most striking is how the two sides line
up.

The Bush administration entered the case on the side of the principal
and the Juneau School Board, which are both represented by Kenneth W.
Starr, the former solicitor general and independent counsel. His law
firm, Kirkland & Ellis, is handling the appeal without a fee. Mr.
Starr and Edwin S. Kneedler, a deputy solicitor general who will
present the government's view, will share argument time on Monday. The
National School Board Association, two school principals' groups, and
several antidrug organizations also filed briefs on the school board's
side.

While it is hardly surprising to find the American Civil Liberties
Union and the National Coalition Against Censorship on Mr. Frederick's
side, it is the array of briefs from organizations that litigate and
speak on behalf of the religious right that has lifted Morse v.
Frederick out of the realm of the ordinary.

The groups include the American Center for Law and Justice, founded by
the Rev. Pat Robertson; the Christian Legal Society; the Alliance
Defense Fund, an organization based in Arizona that describes its
mission as "defending the right to hear and speak the Truth"; the
Rutherford Institute, which has participated in many religion cases
before the court; and Liberty Legal Institute, a nonprofit law firm
"dedicated to the preservation of First Amendment rights and religious
freedom."

The institute, based in Plano, Tex., told the justices in its brief
that it was "gravely concerned that the religious freedom of students
in public schools will be damaged" if the court rules for the school
board.

Lawyers on Mr. Frederick's side offer a straightforward explanation
for the strange-bedfellows aspect of the case. "The status of being a
dissident unites dissidents on either side," said Prof. Douglas
Laycock of the University of Michigan Law School, an authority on
constitutional issues involving religion who worked on Liberty Legal
Institute's brief.

In an interview, Professor Laycock said that religiously observant
students often find the atmosphere in public school to be unwelcoming
and "feel themselves a dissident and excluded minority." As the
Jehovah's Witnesses did in the last century, these students are
turning to the courts.

The briefs from the conservative religious organizations depict the
school environment as an ideological battleground. The Christian Legal
Society asserts that its law school chapters "have endured a
relentless assault by law schools intolerant of their unpopular
perspective on the morality of homosexual conduct or the relevance of
religious belief."

The American Center for Law and Justice brief, filed by its chief
counsel, Jay Alan Sekulow, warns that public schools "face a constant
temptation to impose a suffocating blanket of political correctness
upon the educational atmosphere."

What galvanized most of the groups on Mr. Frederick's side was the
breadth of the arguments made on the other side. The solicitor
general's brief asserts that under the Supreme Court's precedents,
student speech "may be banned if it is inconsistent with a school's
basic educational mission."

The Juneau School Board's mission includes opposing illegal drug use,
the administration's brief continues, citing as evidence a 1994
federal law, the Safe and Drug-Free Schools and Communities Act, which
requires that schools, as a condition of receiving federal money, must
"convey a clear and consistent message" that using illegal drugs is
"wrong and harmful."

Mr. Starr's main brief asserts that the court's trilogy of cases
"stands for the proposition that students have limited free speech
rights balanced against the school district's right to carry out its
educational mission and to maintain discipline." The brief argues that
even if Ms. Morse applied that precept incorrectly to the facts of
this case, she is entitled to immunity from suit because she could
have reasonably believed that the law was on her side.

The religious groups were particularly alarmed by what they saw as the
implication that school boards could define their "educational
mission" as they wished and could suppress countervailing speech
accordingly.

"Holy moly, look at this! To get drugs we can eliminate free speech in
schools?" is how Robert A. Destro, a law professor at Catholic
University, described his reaction to the briefs for the school board
when the Liberty Legal Institute asked him to consider participating
on the Mr. Frederick's behalf. He quickly signed on.

Having worked closely with Republican administrations for years, Mr.
Destro said he was hard pressed to understand the administration's
position. "My guess is they just hadn't thought it through," he said
in an interview. "To the people who put them in office, they are
making an incoherent statement."

The solicitor general's office does not comment publicly on its cases.
But Mr. Starr, by contrast, was happy to talk about the case and the
alignment against him of many of his old allies. "It's reassuring to
have lots of friends of liberty running around," he said in a cheerful
tone, adding: "I welcome this outpouring because it will help the
court see that it shouldn't go too far either way."