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Student Speech Takes a Hit

High Court backs “Bong Hits” ban.

In the end, Joseph Frederick got a lot more than the 15 minutes of fame he was after. His efforts to appear on TV ultimately altered the course of constitutional law and diminished, however slightly, the free speech rights of all students.

It all began on January 24, 2002, the day the Olym-pic torch passed in front of Alaska’s Juneau-Douglas High School (JDHS) on its way to the 2002 Winter Olympics in Salt Lake City. JDHS principal Deborah Morse released students from class for a brief period to view the one-time event under faculty supervision.

Frederick, an 18-year-old senior who cut class that morning, stationed himself on a public sidewalk directly across from the school, and—just as the torch passed by and with TV cameras rolling—he and several friends unfurled a 14-foot banner proclaiming, “Bong Hits 4 Jesus.”

Livid, Morse dashed across the street and demanded that he take down the sign. When he refused, she grabbed it out of his hand. She later suspended him for 10 days. The charge? Promoting the use of illegal drugs at a school-sponsored event. (“Bong hit” is slang for smoking marijuana.)

In the ensuing lawsuit, Frederick vehemently denied that he was encouraging drug use. The slogan, he claimed, was just “meaningless and funny nonsense meant to attract television cameras.” He succeeded, but he also attracted the attention of the Supreme Court.

Teacher Speech Case Pending

The Supreme Court has been asked to overturn a controversial court decision that teachers have no free speech rights in the classroom. 

Indiana teacher Deb Mayer claimed she lost her job in retaliation for expressing her opposition to the Iraq War during a class discussion of current events. But the Seventh Circuit ruled last January that the First Amendment “does not entitle primary and secondary teachers, when conducting the education of captive audiences, to advocate viewpoints that depart from the curriculum.”  Students “ought not be subject to teachers’ idiosyncratic perspectives,” the court said.

“The school system does not regulate teachers’ speech as much as it hires that speech,” the court continued. “Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.”

This is the latest in a string of federal court rulings refusing to recognize teacher speech rights in class. The Supreme Court will announce in October whether it will hear the appeal.

In a 5-4 ruling last June, the Court held that Principal Morse did not violate Fredrick’s First Amendment rights when she seized his banner and punished him. The Court said that, regardless of Frederick’s intent, Morse reasonably interpreted his “ambiguous” and “silly” banner as “promoting illegal drug use,” and that school officials have the authority to ban such student speech at a “school event.”

“School principals have a difficult job,” the Court mused. By seizing the banner, Morse sent “a powerful message to the students in her charge about how serious the school was about the dangers of illegal drug use.”  

But the Court rejected Morse’s broad argument that administrators can censor student speech whenever it is “inconsistent” with the school’s “educational mission.”

The case is noteworthy for the odd array of organizations that filed amicus briefs supporting Frederick. In recent years, conservative religious organiza- tions have filed a number of lawsuits defending the rights of Christian students to engage in religious and anti-gay speech in school. Fearing that an adverse decision might empower officials to ban such speech, five of these organizations joined various civil liberties and gay rights groups in urging the Court to uphold Frederick’s right to display his banner about Jesus and pot.

In a concurring opinion, Justices Alito and Kennedy sought to put those fears to rest. Emphasizing that the Court’s decision is a very narrow one limited to pro-drug speech, the two Justices cautioned that it should not be read as granting administrators broad new power to censor students. The Court’s ruling, they wrote, “provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.” 

Michael D. Simpson, NEA Office of General Counsel

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