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Bong Hits for Jesus

How A Juvenile Prank Led to the Most Important Supreme Court Case in the Current Term

Joseph Frederick was 18 at the time, a senior in high school in Juneau, Alaska.  The time was January, 2002, and the event was the passage of the Olympic torch in front of Frederick’s school, the Juneau-Douglas High School.  The school officials, led by principal Deborah Morse, decided to let students out of school to watch the torch pass by.

Joseph Frederick never actually made it to class that day.  He could not get his car out of his frozen driveway, so he walked to school.  He never entered the school building.  Frederick decided to watch the torch parade from a position across the street from the school.  He and a few of his friends carefully positioned themselves directly across from the school and, more importantly, a television camera.  Frederick and his friends wanted to get on TV.

As the Olympic torch passed in front of them – and the cameras – they unfurled a banner that read, “Bong Hits for Jesus.”  They got what they wanted.  They were on television.  And, next Monday, the Supreme Court of the United States will hear arguments about what Frederick’s juvenile stunt means in the context of school law in the United States.  It might be most important case to be heard by the Court this term.  The outcome of the case will determine whether, and to what extent, the First Amendment applies to students, and whether school authorities will be able to discipline students for actions that do not take place on school grounds.

When Deborah Morse saw the banner, she did what school officials all too often do: she overreacted.  She ran across the street, seized and crumpled the banner, then disciplined Frederick, imposing a suspension.  Unfortunately for her, when she crossed the street, she also crossed an important line:  the perimeter of school discipline jurisdiction. Historically, the ability of school authorities to discipline students was limited to actions that took place on school grounds.  The standard in Arizona, and most states, is activity that occurs at school during regular school hours, during a school-sponsored event, or going to and coming from school.  What students do away from school, on their own time, is usually outside the jurisdiction of school authorities.

Morse stepped outside her jurisdiction and got sued.  The 9^th circuit ruled in favor of Frederick and upheld a lower court’s award of monetary damages against Morse personally.  The case is now before the Supreme Court.

Ever since the famous Tinker vs. Des Moines School District case in 1969, courts have respected the Supreme Court’s admonition in Tinker that students do not surrender their First Amendment rights at the school house door.  There have been some exceptions.  A school newspaper, for example, is under the supervision of school authorities who have the right to censor articles they disapprove of.  And students are not allowed to utter profanity at school-sponsored events, such as assemblies.  Even in Tinker, an exception was made for speech that could cause disruption in the school.  That has led to a number of cases around the country that were spawned by Nazi swastikas, Confederate flags, and “Marilyn Manson” tee shirts.

Curiously, the Supreme Court has never addressed the jurisdictional issue.  A number of lower courts have.  The common rule that evolved was this:  student speech that takes place off campus is presumed to be protected by the First Amendment and outside the jurisdiction of school officials, unless the speech actually causes disruption at the school.  That is not as easy as it may sound.  Trying to prove the “nexus” – the linkage – is difficult and school officials who get it wrong frequently get sued, like Deborah Morse.

But now, we have a new player, and a new complication in the lives of school officials:  the Internet.  There is a phenomenon at play today that was unheard of in the days of Tinker:  cyber-bullying.  Kids are bullying each other using text messaging, MySpace pages, and email.  And they sometimes use the Internet to lampoon, defame, and even threaten teachers and administrators.

Most federal courts simply apply the Tinker “disruption” standard.  It’s not enough that the Internet speech annoys school administrators.  The First Amendment protects the right of students to annoy school officials through Internet speech that does not take place at school or through the use of school facilities, like computers.  In most reported cases, when the annoyed educator disciplines the student, the educator loses in court.  One circuit, however, has ruled that any speech that offends the “educational mission” of the school, whatever that is, can be disciplined.  When there is a difference among federal circuits, the Supreme Court frequently weighs in and resolves the difference.

If the Supreme Court overturns the 9^th circuit and upholds the discipline Morse imposed on Frederick, school administrators will cheer.  The National School Boards Association filed an amicus brief in favor of Morse.  Fewer school administrators will get sued.

But I’m concerned about the collateral damage on the First Amendment, and on the educational process in general.  If, for example, schools can discipline students for speech that offends the school’s educational mission – which is another way of saying that it annoys school administrators – then we will be teaching students to fear ideas.  That is not education, but indoctrination.

And, there is another danger:  the extension of school jurisdiction into the home.  If a school can discipline a student for creating an offensive MySpace page on his or her home computer, an important area is being invaded: the parents’ prerogative.  It’s one thing if the page causes disruption at school.  It’s quite another if the only impact is to annoy school officials.  Do we really want school officials to reach into our homes that way?  The Supreme Court might allow that to happen, which is why the case is so important.

© March 14, 2007 by Mike Tully 

All content on this page © by Mike Tully