By Charles Lane
Washington Post Staff Writer
Tuesday, June 26, 2007
The Supreme Court yesterday gave public schools new authority to regulate what students say, allowing principals to punish speech or demonstrations that may "reasonably be viewed" as promoting illegal drug use.
In its most significant ruling on student speech in almost two decades, the court said that the principal of a high school in Juneau, Alaska, did not violate senior Joseph Frederick's constitutional right to free speech when she suspended him for unfurling a banner reading "Bong Hits 4 Jesus" as students waited for the Olympic torch relay to pass their school in 2002. A bong is a water pipe commonly used to smoke marijuana.
"Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers . . . poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse," Chief Justice John G. Roberts Jr. wrote for a five-justice majority of the court. "The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."
Frederick had insisted that the slogan meant nothing specific and that he was not advocating drug use.
The court recognized students' right to free speech at school in 1969, when it said that an Iowa public school could not ban the wearing of armbands in protest of the Vietnam War, as long as classes were not disrupted. Since then, the court has limited that right, permitting administrators to ban sexually explicit student speech in 1986, and to censor school-sponsored student publications in 1988.
But yesterday's ruling was the first time the court has said that schools can prohibit a student expression that was neither obscene nor published under the school's auspices.
The Juneau School Board, like many others nationwide, forbids "any assembly or public expression that . . . advocates the use of substances that are illegal to minors" or otherwise "urges the violation of law." Some federal school aid is conditioned on schools' conveying an anti-drug message.
Public school officials welcomed the ruling, saying that it recognizes that the schools' mission includes protecting student security and welfare, and that it will now be easier for school administrators to do that without worrying about being sued.
"It's terrific news," said Francisco M. Negron Jr., general counsel of the National School Boards Association. "Educators aren't going to have to second-guess the on-the-spot decisions they make to ensure students are safe."
Still, the court did not accept the broadest claims of Juneau school officials and some of their supporters, including the Bush administration, who had urged the justices to empower schools to restrict messages contrary to their "educational mission."
Two members of the majority, Justices Samuel A. Alito Jr. and Anthony M. Kennedy, made it clear that they gave Roberts the fourth and fifth votes he needed on the understanding that yesterday's ruling applied only to advocacy of illegal drug use.
In a concurring opinion joined by Kennedy, Alito wrote that yesterday's ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue," including student opposition to the drug laws themselves.
The case, Morse v. Frederick, No. 06-278, had created unusual alliances, with Frederick receiving the support not only of civil libertarians, gay rights advocates and proponents of medical marijuana but also conservative Christian legal organizations.
Lambda Legal, which advocates equal rights for gay and lesbian students, backed Frederick out of concern that a ruling in favor of the principal might encourage administrators to prohibit students from openly declaring their gay, lesbian or bisexual orientation.
For their part, the Christian groups argued that a broad ruling in favor of the schools could be used to punish students who express religion-based opposition to homosexuality, in school districts whose policies call for tolerance of gay people.
Negron said the "jury is still out" on those matters after yesterday's ruling, but some who filed friend-of-the-court briefs in favor of Frederick said the Alito-Kennedy concurrence means that the decision will not affect cases involving student speech about sexuality.
"It is unfortunate that the U.S. Supreme Court has chosen to depart from its long-held practice of protecting the free speech rights of students," said John W. Whitehead, president of the Rutherford Institute, a civil liberties organization. "However, the decision should have a limited effect because it applies only to student speech that promotes illegal drug use."
Justices Antonin Scalia and Clarence Thomas also joined the majority. Justice John Paul Stevens dissented, arguing that Frederick had raised a "nonsense banner," which advocated nothing, legal or illegal, and that the court's opinion could be read to permit broad censorship.
"[T]he court's ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use," Stevens wrote.
Justices David H. Souter and Ruth Bader Ginsburg joined Stevens's opinion. Justice Stephen G. Breyer also dissented, writing separately that the court should not have decided the free-speech issue at all and ruled only that the principal was not individually liable for her decision.