Tuesday, March 20, 2007

Most Awesome Supreme Court Case Ever

Yesterday, Kenneth Starr argued the "Bong Hits 4 Jesus" case in front of the Supreme Court.

Wikipedia has a good summary of the facts:
Morse v. Frederick is a First Amendment student free speech case argued before the Supreme Court of the United States on March 19, 2007.


In January 2002, students were released from Juneau-Douglas High School to watch the Olympic torch pass by. Frederick, running late that day, did not report to school before joining some friends on a sidewalk across the street. Frederick and his friends waited for the television cameras so they could unfurl a banner reading "Bong Hits 4 Jesus." When they displayed the banner, then-principal Deborah Morse ran across the street and seized it.

Morse initially suspended Joseph Frederick for five days for violating the school district's anti-drug policy, but increased the suspension to 10 days after he refused to give the names of his fellow participants and quoted Thomas Jefferson on free speech. Frederick administratively appealed his suspension to the Superintendent, who denied his appeal but limited it to the time Frederick had already spent out of school prior to his appeal to the Superintendent (eight days). Frederick then appealed to the Juneau School Board, which upheld the suspension on March 19, 2002. On April 25, 2002, Frederick filed a §1983 lawsuit against Morse and the school board in the United States District Court for the District of Alaska claiming they violated his federal and state constitutional rights to free speech.

The district court ruled in favor of the School Board and Deborah Morse. Frederick v. Morse, 2003 U.S. Dist. LEXIS 27270 (D. Alaska 2003).

The Ninth Circuit reversed the District Court and granted the case to Frederick. Despite deciding that the incident took place during a school event, the court held that Frederick's student speech rights were violated. The unanimous panel decision was written by Judge Andrew Kleinfeld. Morse v. Frederick, 439 F.3d 1114 (2006).

The school board asked the U.S. Supreme Court to review the Ninth Circuit's decision. On December 1, 2006, the Supreme Court agreed to do so, and heard oral arguments on March 19, 2007. The docket number is 06-278.

MSNBC explains how the Justices are reacting to this divisive issue:
“I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs,” Chief Justice John Roberts said Monday.


“It sounds like just a kid’s provocative statement to me,” Justice David Souter said.

But at least they all agree on one thing: The Bush administration gets it wrong. As usual:
Starr, joined by the Bush administration, also asked the court to adopt a broad rule that could essentially give public schools the right to clamp down on any speech with which they disagree. That argument did not appear to have widespread support among the justices.

But this is the interesting part:

Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.

The outcome also could stray from the conservative-liberal split that often characterizes controversial cases.

Justice Samuel Alito, who wrote several opinions in favor of student speech rights while a federal appeals court judge, seemed more concerned by the administration’s broad argument in favor of schools than did his fellow conservatives.

“I find that a very, a very disturbing argument,” Alito told Justice Department lawyer Edwin Kneedler, “because schools have ... defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”

I. Love. This. Case.


DSL said...

Tell us why you love it so much.

Dara said...

1. I am a fan of any case that transcends traditional political alliances. Everyone is confused, they don't know if they want to support free speech rights or the rights of the schools to use their disciplinary authority to curtail a message that might be seen as promoting drug use.

2. If they decide it -- and not find some sort of technical loophole -- it'll set important precedent. See #1.

3. Free speech is an important issue. And the ability of a government or governmental agency (like a school board) to curtail that speech -- while claiming that it's for our own good -- is worrysome.

4. It's got a good name -- or at least a good nickname. Imagine law students years from now getting called on to stand up in class and talk about the "Bong Hits 4 Jesus" case in their Constitutional Law class.

DSL said...

Thank you ma'am. I feel like a teacher now. :-)

Dara said...

You feel like the teacher? I feel like I'm trying to start a discussion on Constitutional Law, and only one of my students came prepared to participate.

CBK said...

As far removed from caring about the law as I am, I love the case, too. I read a great recap of the oral argument on Slate yesterday. The fact that the 9th Circuit ruling would allow for the student to get damages from the school district seemed to worry some of the justices, but that better not keep them from upholding his rights to say something silly that offends an administrator. How prudish can you get to think that making a sign like that violates your anti-drug policy, and argue that the value of prohibiting that sign outweighs student speech rights? Don't fuck this up, Roberts Court!

Dara said...

The thing that cracks me up about it is that it was not really a pro-drug sign. It is, essentially, nonsensical. If it said "Cigarettes 4 Buddha" or "Diet Coke 4 Krishna," it would have been the same thing -- well, okay, maybe it would have gotten the kid a little less press coverage, but still . . . .

rock_ninja said...

I too, LOVE this case.

As for the drug reference, that's really what's obfuscating the entire issue here. The teacher who originally confiscated the poster assumes that the nonsensical phrase "Bong Hits 4 Jesus" advocates drug use, and therefore violates the school's no-tolerance policy.

Completely disregard the fact that the student wasn't on school property and had not yet reported to school for now(I'm dubious as to whether a parade down Main Street counts as a school event).

Does the phrase "Bong hits 4 Jesus" actually encourage drug use? It seems that the onus is on the school board to prove it does, and that's pretty tricky to do.

So if simply mentioning drugs or drug use in a school violates the no-tolerance policy, then teaching drug prevention would also have to be eliminated from schools, at least according to the logic of this anti-drug policy.

Dara said...


This is just another example of the same kind of ass-backwards head-in-the-sand education policy that concluded that anything other than abstinence-only education in schools encourages sex. Earth-to-schools: Your students (1) drink; (2) do drugs; and (3) sleep with each other -- and not talking about it won't make it go away.