Student free speech vs. school drug policy

"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.

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.

Page: 1 | 2