Religious right, ACLU back student dissident

Government takes school's side in free-speech case

March 18, 2007|By New York Times News Service

WASHINGTON -- A Supreme Court case about the free-speech rights of high school students, to be argued tomorrow, has opened an unexpected fissure between the Bush administration and its usual allies on the religious right.

As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray. And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.

On the surface, Joseph Frederick's dispute with his principal, Deborah Morse, at the Juneau-Douglas High School in Alaska five years ago appeared to have little if anything to do with religion - or perhaps with much of anything beyond a bored senior's attitude and a harried administrator's impatience.

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, Frederick and some friends unfurled a 14-foot-long banner with the inscription: "Bong Hits 4 Jesus."

Frederick later testified that he designed the banner, using a slogan he had seen on a snowboard, "to be meaningless and funny, in order to get on television." Morse found no humor but plenty of meaning in the sign, recognizing "bong hits" as a reference to using marijuana. She demanded that he take down the banner. When he refused, she tore it down, ordered him to her office and gave him a 10-day suspension.

Frederick's ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black armbands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

The court followed that 1969 decision with two others during the 1980s that upheld the authority of school officials to ban vulgar or offensive student speech and to control the content of school newspapers. Clearly there is some tension in the court's student-speech doctrine; what message to extract from the trio of decisions is the basic analytical question in the new case, Morse v. Frederick. What is most striking is how the two sides line up.

The Bush administration entered the case on the side of the principal and the Juneau school board, which are represented by Kenneth W. Starr, the former solicitor general and independent counsel. His law firm, Kirkland & Ellis, is handling the appeal without a fee. Starr and Edwin S. Kneedler, a deputy solicitor general who will present the government's view, will share argument time tomorrow. The National School Board Association, two school principals' groups, and several anti-drug organizations also filed briefs on the school board's side.

While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Frederick's side, it is the briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.

The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as "defending the right to hear and speak the Truth"; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm "dedicated to the preservation of First Amendment rights and religious freedom." The institute, based in Plano, Texas, told the justices in its brief that it was "gravely concerned that the religious freedom of students in public schools will be damaged" if the court rules for the school board.

Lawyers on Frederick's side offer a straightforward explanation for the strange-bedfellows aspect of the case. "The status of being a dissident unites dissidents on either side," said Douglas Laycock, a professor at the University of Michigan Law School and an authority on constitutional issues involving religion who worked on Liberty Legal Institute's brief.

Starr's main brief asserts that the court's trilogy of cases "stands for the proposition that students have limited free speech rights balanced against the school district's right to carry out its educational mission and to maintain discipline."

The brief argues that even if Morse applied that precept incorrectly, she is entitled to immunity from suit because she could have reasonably believed that the law was on her side.

The religious groups were particularly alarmed by what they saw as the implication that school boards could define their "educational mission" as they wished and could suppress countervailing speech accordingly.

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