Student free speech vs. school drug policy

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.

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