HIGH COURT TAKES ON 'BONG HITS'

Case Called Most Important Student Free Speech Debate Since Vietnam War

By Eric Morrison, Juneau Empire

A goofy sign on Glacier Avenue sparked a debate that many are calling
the most important fight over student free speech since the Vietnam War.

The questions: Did former Juneau-Douglas High School student Joseph
Frederick have the right to hold up a banner declaring "Bong Hits 4
Jesus" while off school grounds? Did former principal Deborah Morse
infringe his First Amendment rights by suspending him?

The story began Jan. 24, 2002, while the Olympic Torch Relay toured
the snowy streets of the state capital through streets lined with
onlookers. Frederick, standing with friends across the street from
the school, held up his banner as television cameras rolled nearby.

Morse confiscated the banner, had a talk with Frederick and
eventually levied a 10-day suspension from school.

Frederick sued, and the case began moving up through the court
system. Now it has gone as high as it can go.

On Monday, the Supreme Court will hear arguments on an issue that has
garnered national attention from free speech advocates, prominent
school organizations and major media outlets.

As things stand, the onus is on the educators.

In March 2006, the 9th U.S. Circuit Court of Appeals in San Francisco
overturned an Alaska court ruling and decided in favor of Frederick.
The appellate panel found Morse personally liable for violating his
First Amendment rights. Morse and the Juneau School board petitioned
and got a Supreme Court hearing.

"It could be the defining moment on the limits of student expression
in public schools," said Ronald Collins, a scholar at the nonprofit
First Amendment Center.

In commenting on Morse v. Frederick, many legal experts cite the case
of Tinker v. Des Moines Independent Community School District. In
that 1969 decision, the justices ruled in favor of students who were
expelled for wearing symbolic black armbands to protest the Vietnam War.

Students "do not shed their constitutional rights at the school house
gate," the majority opinion read.

"It's a rather major opinion," Collins said. "Since then, when that
case was argued, the Supreme Court in a couple of other cases cut
back on the rights for student expression."

Vulgar, lewd and offensive speech may be prohibited during school,
according to a 1986 ruling in Bethel School District v. Fraser. That
case went against a student who was suspended after delivering an
explicit speech making sexual references to fellow students.

Bruce Hunter, associate executive director of public policy for the
American Association of School Administrators, likens the "Bong Hits
4 Jesus" case to the Bethel decision, citing its disruption of a
school-sanctioned event, even though the event wasn't on school
grounds, and students were only a fraction of those taking part.

"This speech was not off-color, but it promoted drug use and made fun
of the central figure in the Christian religion, which is also
offensive, like demeaning a central figure in any religion," he wrote
in an e-mail.

Hunter contends that the students were still "in school" during the
morning of the torch relay and that the administrators would have
been responsible if, for example, one of them happened to be injured
during the event.

Collins said student speech rights took another hit in the 1988
Hazelwood School District v. Kuhlmeier case, involving a principal
who confiscated two pages of a student newspaper, claiming
inappropriate references to sexual activity. The court again ruled in
favor of the administrator.

"Educators do not offend the First Amendment by exercising editorial
control over the style and content of student speech in
school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns," the majority
decision said.

"Bottom line, the precedent set on Tinker ... has been undermined
since 1969," Collins said. "The question is what will this case do to
a precedent that is already in jeopardy."

That's why a lot is at stake now, he said. That may be the one area
where both sides agree.

"It may be that this latest case that the court could drive another
stake in the heart of student expression," Collins said.

Tom Hutton, staff attorney with the National School Board
Association, also noted the potential for a significant impact. In
general, student free speech and administrators' rights have become
murky since the Supreme Court's last significant ruling, he said.

"The lower courts have kind of made a mash of things," Hutton said.
"The courts need to provide more clarity in this area of law because
there are a lot of lawsuits, and every dime that is spent on these
costs comes out of some child's education."

The issue is tough enough for lawyers who can debate for hours, let
alone for a principal trying to act quickly and decisively, Hutton said.

"We argue that judges need to give school officials a little more
benefit of the doubt in these borderline cases," Hutton said.

Attorney Joan Bertin, executive director of the National Coalition
Against Censorship, an alliance of 50 nonprofit organizations founded
in 1974, said it is difficult to know why the justices decide to hear
specific cases. People can't be sure if they took Morse v. Frederick
to address the free speech issue, the liability issue, or some combination.

"It's a little bit of crystal-ball gazing, since we don't know where
the justices will end up," Bertin said.

It's not even clear if the court with decide to decide. The justices
could still decline to hear the case for any number of reasons. If
they do take up some or all of the issues, a quick decision would be
practically unheard of. No opinion could be expected for weeks at least.

"It's really going to be hard to avoid the clear facts here," Bertin
said. "Nobody denied where Joseph Fredrick was when he did what he
did, they just drew different conclusions from it."

The NSBA and others on Morse's side want to argue for greater clarity
of school administrators' roles, and have no desire to stifle free
speech, Hutton said.

"That's not what happened in Fraser, and that's not what happened in
Hazelwood," he said. "We're hopeful that they'll provide more
clarity, but we'll just have to see how they approach it."

School should be a place where teachers and administrators educate
students on the importance on the First Amendment and the role of
freedom of speech in American society, Collins said. If the court
rules against Frederick, it could have the opposite effect, he said.

"One would hope that they wouldn't throw the student out with the
bathwater," Collins said. "One would hope that one would realize that
there is a place for the First Amendment properly used by students in
the school atmosphere."

[sidebar]

MORSE V. FREDERICK TIMELINE

Jan. 24, 2002: Juneau-Douglas High School senior Joseph Frederick
holds up banner displaying "Bong hits 4 Jesus" during Olympic Torch
Relay. Principal Deb Morse confiscates the banner because of its
apparent drug reference and levies a 10-day suspension after a
discussion on freedom of speech.

March 19, 2002: The Juneau School Board upholds the suspension of Frederick.

April 25, 2002: Frederick sues Morse and the Juneau School District
in the U.S. District Court, District of Alaska over the alleged
violation of his constitutional rights.

May 27, 2003: U.S. District Court, District of Alaska rules in favor of Morse.

July 8, 2004: Juneau attorney Douglas Mertz submits appeal to the 9th
U.S. District Court of Appeals on behalf of Frederick.

March 10, 2006: The 9th U.S. District Court of Appeals reverses lower
court decision, finding Morse personally liable for violating
Frederick's constitutional rights.

May 4, 2006: It is announced that attorney Kenneth Starr, known for
the Starr Report that led to the impeachment of President Bill
Clinton, and his law firm have agreed to represent Morse and the
Juneau School District pro bono.

Aug. 28, 2006: Petition for a writ of certiorari is filed with the
U.S. Supreme Court on behalf of Morse and the Juneau School District.

Dec. 1, 2006: The Supreme Court agrees to hear the "Bong hits 4 Jesus" case.

Monday: The Supreme Court is scheduled to hear Morse v. Frederick,
docket number 06-278, at 10 a.m. EST in Washington, D.C.