Supreme Court hears school speech case

Sign about drugs spurs First Amendment debate

March 20, 2007|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON -- High school students may have a right to free speech, but it does not go so far as to include the freedom to unfurl a banner promoting "bong hits" at a school event, former U.S. Solicitor General Kenneth Starr told the Supreme Court yesterday.

"This is disruptive of the educational mission and inconsistent with the school's message" against using drugs, Starr said.

Starr, now dean of the Pepperdine University School of Law, represents a school principal from Juneau, Alaska, who was sued for ripping down the banner and suspending the student who unfurled it.

The case forces the court to reconsider the line between a student's right to free expression and a principal's authority to limit what is said and done at school.

During the hourlong argument, the justices struggled to draw such a line.

Most of them sounded as though they leaned in favor of the school principal. At the same time, they were wary of saying officials have broad power to punish students whenever they think a student's message is offensive or inappropriate.

Several religious-rights groups filed briefs supporting the student's free-speech right in this case. Their lawyers worry that school officials might, for example, say it was inappropriate for a student to wear a T-shirt that praised Jesus Christ.

Justice Samuel A. Alito Jr. said it would be "disturbing" if principals had such broad authority to pass judgment on what students say at or near school.

But Starr said the court could rule narrowly and give principals the power to forbid signs and banners promoting drugs, alcohol or tobacco. "This case is ultimately about drugs," he said.

The student's lawyer insisted the opposite was true.

"This is a case about free speech. This is not a case about drugs," said Douglas K. Mertz, a lawyer from Juneau.

His client, Joseph Frederick, was an 18-year-old senior in 2002 when an Olympic torch parade was scheduled to pass in front of his high school. As the local TV cameras came by, he and a few students unfurled a 14-foot banner that said: "Bong Hits 4 Jesus."

The message seemed designed to provoke Principal Deborah Morse, and it succeeded in doing so. She tore it down and sent Frederick to the office. She planned to suspend him for five days, but when he invoked Thomas Jefferson and the First Amendment, she doubled the suspension to 10 days.

Frederick later sued and alleged she had violated his constitutional rights.

A federal judge rejected his claim, but the 9th U.S. Circuit Court of Appeals in San Francisco ruled for the student and said the principal could be forced to pay damages.

No damages have been set, and the school board urged the Supreme Court to overrule the 9th Circuit.

The outcome may turn on a ruling from the Vietnam War era. In 1969, the Supreme Court upheld the right of high school students to wear black arm bands to protest the war. Young people do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the court said then. But its opinion made clear that principals and teachers need not tolerate "disruptive" speech or protests.

During yesterday's argument, Chief Justice John G. Roberts Jr. said the student's "bong hits" banner was disruptive.

"Can't a school say part of its mission is to discourage drug use?" he asked.

Mertz held his ground, however, insisting that Frederick's sign was not disruptive, and "a non-disruptive message has to be tolerated."

Though the justices seemed unsure of the limit on students' right to free speech, they sounded certain they will shield the principal from being sued.

A ruling in the case will be handed down this spring.

David G. Savage writes for the Los Angeles Times.

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