SupremeCourt. Debates. Student Speech MAY 2007 VOL. 10 NO. 5

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1 MAY 2007 VOL. 10 NO. 5 SupremeCourt A Pro & Con Monthly A Congressional Digest Publication Debates Student Speech The First Amendment at School Does the First Amendment Allow Public Schools to Prohibit Students From Displaying Messages Promoting Drugs at School-Sponsored Events? Deborah Morse, et al., Petitioners Joseph Frederick, Respondent and others...

2 SUPREME COURT DEBATES, a Pro & Con Monthly May 2007, Vol. 10, No. 5 Editors Note: Supreme Court Debates now comes to you in this easy-to-read plain text format. Subscribers should send us their address, along with their customer number, using the form so we can send your complimentary portable document file of Supreme Court Debates as well as Congressional Digest and International Debates each month. This issue of Supreme Court Debates provides a summary of key cases before the court, background on this month s debate topic, followed by the Pros (page 17) & Cons (page 28), and excerpts from arguments before the nation s highest tribunal. Article citations are at the end of each section. Supreme Court Debates, May 2007, Vol. 10, No. 5 (ISSN ) is an independent magazine featuring controversies before the Supreme Court, Pro & Con. It is not an official organ, nor is it controlled by any party, interest, class, or sect. Published monthly (except June, July, and August) and offered through Pro & Con Online, a multi-user database. 2007, Congressional Digest Corp. Published by The Congressional Digest Corp., online EDITORIAL: 4416 East West Hwy, Suite 400 Bethesda, MD ; (301) Griff Thomas, Publisher Erika Fitzpatrick, Executive Editor Anthony Zurcher, Editor in Chief SUBSCRIPTION Rates: Supreme Court Debates is available as part of Pro & Con Online for $300 per year. Supreme Court Debates subscribers can, for a limited time, receive a discounted rate of $200 for Pro & Con Online, which includes multi-user academic database access and monthly electronic copies of the three debate magazines: Congressional Digest, International Debates, and Supreme Court Debates. Telephone Orders: Accepted with Visa or MasterCard (800) Customer Service: (301) Order single issues and back copies at Single Copy: $10. Subscribe to Pro & Con Online at Sign up for a free trial to Pro & Con Online: Subscribers to Pro & Con Online may login at Student Speech The First Amendment at School Does the First Amendment Allow Public Schools to Prohibit Students From Displaying Messages Promoting Drugs at School-Sponsored Events? On January 24, 2002, during a school-sanctioned viewing of the Olympic Torch Relay, Juneau- Douglas High senior Joseph Frederick held up a sign that read Bong Hits 4 Jesus across the street from his school. Five years later, nine U.S. Supreme Court justices debated what the sign meant and whether Frederick s First Amendment rights were violated when the school s principal made him take it down. Since 1968, student speech has been governed by Tinker v. Des Moines Independent Community School District, a landmark case in which the Court ruled that a school cannot prohibit students from wearing black armbands as a symbolic protest against the Vietnam War. Students, wrote Justice Fortas for the majority, do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate Congressional Digest Corp. Page 2

3 In the intervening years, the Supreme Court has narrowed its broad guarantee of student free speech to some extent. In Bethel School District No. 403 v. Fraser (1986), the Court held that a school could punish a student for a sexually suggestive speech given to classmates because it was offensively lewd and indecent and could interfere with a school s educational mission. Two years later, the Court ruled in Hazelwood School District v. Kuhlmeier (1988) that a school could censor controversial articles in a student newspaper. Now, the Court must consider whether Frederick s actions are more like the student protests in Tinker or the disruptive speech in Bethel. The lower courts in this case have disagreed. After Frederick brought suit against high school Principal Deborah Morse and the school board seeking monetary damages and the removal of the incident from his record, a Federal district court in Alaska issued a summary judgment in favor of the school. The Ninth Circuit U.S. Court of Appeals reversed the court s decision, ruling that Frederick had engaged in protected speech. The school appealed to the U.S. Supreme Court, which granted certiorari on December 1, During oral arguments, lawyers for Morse and the school board argued that Frederick s sign endorsed drug use an illegal act that the school and society as a whole had a strong interest in discouraging. Although Frederick was not on school property at the time of the incident, they noted, the torch relay was a school event much like a field trip, so Frederick was governed by school policies and could be disciplined for his actions. Lawyers for Frederick countered that he had not set foot on school property at all that day and so was acting as a private citizen. Public speech is strictly protected by the First Amendment, without any of the exceptions that limit student speech. Even if Frederick s actions were governed by Tinker and its progeny, they reasoned, Frederick s sign was a protest against the current drug laws. Drug-law reform was a subject of heated debate in Alaska at the time. Frederick had a right to express his opinion, and the manner in which he chose to do so was not disruptive or counter to the school s educational mission. The Court seemed torn over whether or not Frederick s admittedly nonsensical sign deserved protection under the First Amendment. The justices did seem to agree, however, that the precedent in this case is unclear, which likely means that even if they find in favor of Frederick, he will not be allowed to sue the principal for damages. One interesting side note to this case is the alliance of free-speech groups and religious organizations that has formed to support Frederick. While the former are interested in the political nature of Frederick s sign, the latter are concerned that the Court not find the mention of Jesus in the sign reason enough to allow the school to prohibit it Congressional Digest Corp. Page 3

4 Inside the Court Status of Important Cases Before the Highest Tribunal The following pages provide the status of key cases granted certiorari by the Supreme Court for consideration during the October 2006 term (October 2, 2005, through September 30, 2006), as of April 17, Cases are organized by certiorari date within each section. Resolved Gonzales v. Carhart This case was granted certiorari on February 21, 2006, and was reversed on April 18, In a 5-to-4 decision, the Court held that the Federal ban on late-term abortions is not unconstitutionally vague and does not need to contain an exception to protect the health of the mother. Featured in Partial-Birth Abortion Ban, SUP. CT. DEBATES (Dec. 2006), p The following is excerpted from the summary of the majority opinion written by Justice Kennedy, as prepared by the Court Reporter of Decisions: Respondents have not demonstrated that the Partial-Birth Abortion Ban Act of 2003, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman s right to abortion based on its overbreadth or lack of a health exception. The Planned Parenthood of Southeastern Pennsylvania. v. Casey (1992) Court reaffirmed what it termed Roe v. Wade s (1973) three-part essential holding : First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman s life or health. And third, the State has legitimate interests from the pregnancy s outset in protecting the health of the woman and the life of the fetus that may become a child Though all three are implicated here, it is the third that requires the most extended discussion. In deciding whether the Act furthers the Government s legitimate interest in protecting fetal life, the [Casey] Court assumes that an undue burden on previability abortion right exists if a regulation s purpose or effect is to place a substantial obstacle in the [woman s] path, but that [r]egulations which do no more than create a structural mechanism by which the State... may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman s exercise of the right to choose. Casey struck a balance that was central to its holding, and the Court applies Casey s standard here. A central premise of Casey s joint opinion that the Government has a legitimate, substantial interest in preserving and promoting fetal life would be repudiated were the Court now to affirm the judgments below The Act s text demonstrates that it regulates and proscribes performing the intact D&E [dilation and extraction] procedure. First, since the doctor must vaginally delive[r] a living fetus, the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery e.g., hysterotomy or hysterectomy. And it applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb. Second, because the Act requires the living fetus to be delivered to a specific anatomical landmark depending on the fetus presentation, an abortion not involving such partial delivery is permitted. Third, because the doctor must perform an overt act, other than completion of delivery, that kills the partially delivered fetus, the overt act must be separate from delivery. It must also occur after delivery to an anatomical landmark, since killing the partially delivered fetus, when read in context, refers to a fetus that has been so delivered. Fourth, given the Act s scienter [knowledge of illegal activity] requirements, delivery of a living fetus past an anatomical landmark by accident or inadvertence is not a crime because it is 2007 Congressional Digest Corp. Page 4

5 not deliberate and intentional. Nor is such a delivery prohibited if the fetus [has not] been delivered for the purpose of performing an overt act that the [doctor] knows will kill [it]. The Act, measured by its text in this facial attack, does not impose a substantial obstacle to late-term but previability, abortions, as prohibited by the Casey plurality. The contention that the Act s congressional purpose was to create such an obstacle is rejected. The Act s stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community s ethics and reputation. The Government undoubtedly has an interest in protecting the integrity and ethics of the medical profession. Washington v. Glucksberg (1997). Moreover, Casey reaffirmed that the Government may use its voice and its regulatory authority to show its profound respect for the life within the woman. The Act s ban on abortions involving partial delivery of a living fetus furthers the Government s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned. The Act also recognizes that respect for human life finds an ultimate expression in a mother s love for her child. Whether to have an abortion requires a difficult and painful moral decision, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State. The State s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public s perception of the doctor s appropriate role during delivery, and perverts the birth process. The Act s failure to allow the banned procedure s use where necessary, in appropriate medical judgment, for preservation of the [mother s] health, Ayotte v. Planned Parenthood of Northern New England (2006), does not have the effect of imposing an unconstitutional burden on the abortion right. The Court assumes the Act s prohibition would be unconstitutional, under controlling precedents, if it subject[ed] [women] to significant health risks. Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The Court s precedents instruct that the Act can survive facial attack when this medical uncertainty persists. This traditional rule is consistent with Casey, which confirms both that the State has an interest in promoting respect for human life at all stages in the pregnancy, and that abortion doctors should be treated the same as other doctors. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Other considerations also support the Court s conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act s prohibition only applies to the delivery of a living fetus. The Court rejects certain of the parties arguments. On the one hand, the attorney general s contention that the Act should be upheld based on the congressional findings alone fails because some of the Act s recitations are factually incorrect and some of the important findings have been superseded Congressional Digest Corp. Page 5

6 Also unavailing, however, is Respondents contention that an abortion regulation must contain a health exception if substantial medical authority supports the proposition that banning a particular procedure could endanger women s health. Stenberg v. Carhart (2000). Interpreting Stenberg as leaving no margin for legislative error in the face of medical uncertainty is too exacting a standard. Marginal safety considerations, including the balance of risks, are within the legislative competence where, as here, the regulation is rational and pursues legitimate ends, and standard, safe medical options are available. These facial attacks should not have been entertained in the first instance. In these circumstances, the proper means to consider exceptions is by as-applied challenge. This is the proper manner to protect the woman s health if it can be shown that in discrete and well-defined instances a condition has or is likely to occur in which the procedure prohibited by the Act must be used. No as-applied challenge need be brought if the Act s prohibition threatens a woman s life, because the Act already contains a life exception. Carey v. Musladin This case was granted certiorari on April 17, 2006, and was vacated and remanded on December 11. Featured in Prejudicial Displays in Court, SUP. CT. DEBATES (Nov. 2006), p For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (Feb. 2007), p. 4. Whorton v. Bockting This case was granted certiorari on May 15, 2006, and was reversed and remanded on February 28, For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (Apr. 2007), p. 4. Philip Morris USA v. Williams This case was granted certiorari on May 30, 2006, and was vacated and remanded on February 20, For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (Apr. 2007), p. 4. Burton v. Stewart This case was granted certiorari on June 5, 2006, and was vacated due to lack of jurisdiction on January 9, For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (Feb. 2007), p. 4. Massachusetts v. Environmental Protection Agency (EPA) This case was granted certiorari on June 26, 2006, and reversed and remanded on April 2, In a 5-to-4 decision, the Court held that the Clean Air Act authorizes the Environmental Protection Agency to regulate greenhouse gas emissions as pollutants. Featured in Global Warming, SUP. CT. DEBATES (March 2007). The following is excerpted from the summary of the majority opinion written by Justice Stevens, as prepared by the Court Reporter of Decisions: The scope of the Court s review of the merits of the statutory issues is narrow. Although an agency s refusal to initiate enforcement proceedings is not ordinarily subject to judicial review, there are key differences between nonenforcement and denials of rulemaking petitions that are, as in the present circumstances, expressly authorized. EPA concluded alternatively in its petition denial that it lacked authority to regulate new vehicle emissions because carbon dioxide is not an air pollutant and that, even if it possessed authority, it would decline to exercise it because regulation would conflict with other administration priorities. Because the Act expressly permits review of such an action, this Court may reverse [it if it finds it to be] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Because greenhouse gases fit well within the Act s capacious definition of air pollutant, EPA has statutory authority to regulate emission of such gases from new motor vehicles. That definition which includes any air pollution agent... including any physical, chemical... substance... emitted into... the ambient air embraces all airborne compounds of whatever stripe Congressional Digest Corp. Page 6

7 Moreover, carbon dioxide and other greenhouse gases are undoubtedly physical [and] chemical... substance[s]. EPA s reliance on post-enactment congressional actions and deliberations it views as tantamount to a command to refrain from regulating greenhouse gas emissions is unavailing. Even if post-enactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA identifies nothing suggesting that Congress meant to curtail EPA s power to treat greenhouse gases as air pollutants. The Court has no difficulty reconciling Congress s various efforts to promote interagency collaboration and research to better understand climate change with the agency s pre-existing mandate to regulate any air pollutant that may endanger the public welfare. Also unpersuasive is EPA s argument that its regulation of motor-vehicle carbon dioxide emissions would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to the Department of Transportation. The fact that DoT s mandate to promote energy efficiency by setting mileage standards may overlap with EPA s environmental responsibilities in no way licenses EPA to shirk its duty to protect the public health and welfare. EPA s alternative basis for its decision that even if it has statutory authority to regulate greenhouse gases, it would be unwise to do so at this time rests on reasoning divorced from the statutory text. While the statute conditions EPA action on its formation of a judgment, that judgment must relate to whether an air pollutant cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare. Under the Act s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and impairment of the president s ability to negotiate with developing nations to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore arbitrary, capricious, or otherwise not in accordance with law. On remand, EPA must ground its reasons for action or inaction in the statute. Certiorari Granted and Argued Meredith v. Jefferson City Board of Education This case was granted certiorari on June 5, 2006, and was argued on December 4. To be decided is whether a school board student distribution plan that requires all schools to have between 15 percent and 50 percent African American enrollment violates the Fourteenth Amendment. Featured in Race in Public Education, SUP. CT. DEBATES (Jan. 2007). Parents Involved in Community Schools v. Seattle School District No. 1 This case was granted certiorari on June 5, 2006, and was argued on December 4. Before the Court is whether a school district can take race into consideration when selecting students for admission to public high schools Congressional Digest Corp. Page 7

8 Schriro v. Landrigan This case was granted certiorari on September 26, 2006, and was argued on January 9, To be decided is whether a defense lawyer gives unconstitutionally ineffective assistance to his client when, at the defendant s request, he does not present mitigating evidence during the sentencing portion of a capital crime. Davenport v. Washington Education Association This case was granted certiorari on September 26, 2006, and was argued on January 10, Before the Court is whether a State can prohibit a labor union from using nonmembers agency-shop fees for political purposes without the nonmembers consent. Featured in Political Advocacy by Unions, SUP. CT. DEBATES (Feb. 2007). Smith v. Texas This case was granted certiorari on October 6, 2006, and was argued on January 17, At issue is whether an error in jury instructions during the sentencing phase in a capital case requires resentencing if the error is ruled not to have caused egregious harm to the defendant. Abdul-Kabir v. Quarterman This case was granted certiorari on October 13, 2006, and was argued on January 17, To be decided is whether jury instructions during the sentencing phase of a capital trial are unconstitutional if they do not allow jurors to consider mitigating factors when deciding whether to apply the death penalty. Timothy Scott v. Victor Harris This case was granted certiorari on October 27, 2006, and was argued on November 29. At issue is whether a police officer s decision to ram a fleeing suspect s car during a high-speed chase violates the suspect s Fourth Amendment rights. Featured in Police Chases, SUP. CT. DEBATES (Apr. 2007). Microsoft v. AT&T This case was granted certiorari on October 30, 2006, and was argued on February 21, Before the Court is whether a company can sue for copyright infringement if the violation solely occurs outside U.S. jurisdiction. Rita v. United States This case was granted certiorari on November 3, 2006, and was argued on February 20, To be decided is whether a sentence is presumptively reasonable if it falls within the range of the Federal sentencing guidelines. Hein v. Freedom From Religion Foundation This case was granted certiorari on December 1, 2006, and was argued on February 28, At issue is whether a taxpayer has standing to challenge the constitutionality of an Executive Branch program that promotes giving religious organizations access to Federal funds. Morse v. Frederick This case was granted certiorari on December 1, 2006, and was argued on March 19, At issue is whether a public school student can be suspended for using offensive speech while off campus. Featured in Student Speech, SUP. CT. DEBATES (May 2007). Roper v. Weaver This case was granted certiorari on December 7, 2006, and was argued on March 21, To be decided is whether a circuit court can overturn a death penalty conviction because the prosecutor used inflammatory language in his closing arguments. Certiorari Granted and Argument Scheduled 2007 Congressional Digest Corp. Page 8

9 Panetti v. Quarterman This case was granted certiorari on January 5, 2007, and is scheduled for argument on April 18, Before the Court is whether petitioners who are aware of their pending execution are competent to be executed even if they have an irrational understanding of why they are sentenced to death. Tennessee Secondary School Athletic Association v. Brentwood Academy This case was granted certiorari on January 5, 2007, and is scheduled for argument on April 18, At issue is whether a high school athletic association s prohibition on recruiting violates the member schools First Amendment rights. BCI Coca-Cola Bottling Co. v. Equal Employment Opportunity Commission This case was granted certiorari on January 5, 2007, and is scheduled for argument on April 18, To be decided is whether a corporation may be held liable for employment discrimination based on the discriminatory conduct of a subordinate employee if that corporation was not aware that discrimination was the reason for the subordinate employee s actions. Brendlin v. California This case was granted certiorari on January 19, 2007, and is scheduled for argument on April 23, Before the Court is whether passengers in a car are considered seized during an illegal traffic stop, thus allowing them to challenge any incriminating evidence gathered following the stop. Federal Elections Commission v. Wisconsin Right to Life This case was granted certiorari on January 19, 2007, and is scheduled for argument on April 25, At issue is whether the Bipartisan Campaign Reform Act, which bans nonprofits from using their corporate treasuries to run television ads naming candidates in the days leading up to elections, is unconstitutional as applied to genuine issue ads that are not designed to influence elections. Office of Senator Mark Dayton v. Hanson This case was granted certiorari on January 19, 2007, and is scheduled for argument on April 24, To be decided is whether the Constitution shields Members of Congress from employment discrimination lawsuits brought by legislative staffers. Certiorari Granted Board of Education of the City of New York v. Tom F. This case was granted certiorari on February 26, 2007, and will be argued next term. To be decided is whether a parent can be reimbursed under the Individuals With Disabilities Education Act for special education services expenses if that child is in private, not public, school. State of Washington v. Washington Republican Party This case was granted certiorari on February 26, 2007, and will be argued next term. At issue is whether Washington s open primary system that allows candidates to list their party preference violates the First Amendment. Stoneridge Investment v. Scientific Atlanta This case was granted certiorari on February 26, 2007, and will be argued next term. Before the Court is whether a company can be held liable if it knowingly assists another company in making illegal false statements under the Securities and Exchange Act. United States v. Williams This case was granted certiorari on March 26, 2007, and will be argued next term. At issue is whether a Federal law that prohibits individuals from promoting 2007 Congressional Digest Corp. Page 9

10 or pandering material that they believe or they wish to cause others to believe contains child pornography violates the First Amendment of the U.S. Constitution. Student Speech Overview of Supreme Court Precedent Federal courts have ruled on the issue of public school students freedom of speech under the First Amendment to the U.S. Constitution. This brief examines the three key cases on this subject handed down by the U.S. Supreme Court: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), and Hazelwood School District v. Kuhlmeier (1988). While Tinker occurred almost four decades ago, the U.S. Supreme Court s ruling in this case has been cited in numerous other court decisions since then and has never been overturned. Fraser and Hazelwood have also been discussed widely in subsequent cases and law journals. In general, the Federal courts have held that public school students enjoy freedom of speech under the First Amendment, but are not entitled to disrupt class or infringe on the rights of others. For the purpose of teaching civility, schools have been authorized to discipline students who use vulgar and offensive terms in public discourse at school even though adults in other settings have the freedom of expression to use such language when making a political point. A school has greater authority to regulate a student s speech that is part of a school-sponsored activity than speech outside the classroom. Tinker v. Des Moines The United States Supreme Court in 1969 ruled against a school district s regulation of certain student expression in Tinker. In December 1965, Des Moines, Iowa, public school principals adopted a policy that students who wore black armbands to protest U.S. involvement in the Vietnam War would be asked to remove the armbands and suspended if they refused. A suspension would not be lifted until the student returned to school without the armband. Students ignored the policy and were indefinitely suspended from school. Two high school students and one junior high school student brought suit against the school district, arguing that the principals actions violated their First Amendment right of free speech. A district court ruled in favor of the principals, and the Eighth Circuit Court of Appeals affirmed the district court s ruling. However, the U.S. Supreme Court decided in favor of the students, stating that [i]t 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 further stated: In our system, State-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are persons under our Constitution. They possess fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. Although the Court held that students enjoy constitutional rights, it imposed conditions on students freedom of speech. The Court stated that a student may express himself or herself: [I]f he does so without materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school and without 2007 Congressional Digest Corp. Page 10

11 colliding with the rights of others.... [C]onduct by the student, in class or out of it, which for any reason whether it stems from time, place, or type of behavior materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. The Court held the students actions were permissible. It stated that the District Court recognized that the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. Bethel v. Fraser The U.S. Supreme Court in 1986 ruled in favor of a school district in Fraser, holding that the district s rule against obscene language was not a violation of students right of freedom of speech. Matthew Fraser, a high school student in Bethel, Washington, gave a nominating speech in the school assembly hall supporting a fellow student for student elective office. Students were required to attend the assembly or report to study hall. The speech contained sexual innuendo that school authorities interpreted as being in direct violation of the school s prohibition against use of obscene and profane language and gestures. Fraser was suspended for three days and his name was removed from a list of potential commencement speakers. He brought suit in Federal court, claiming that the school s actions violated his First Amendment rights of freedom of speech. A district court ruled in favor of Fraser; on appeal, the Ninth circuit affirmed. The U.S. Supreme Court reversed the decision of the lower courts, finding no violation of the First Amendment. The Court distinguished a ruled against using obscenities from a prohibition against wearing armbands to express disapproval of U.S. foreign policy, concluding that the penalties imposed in this case were unrelated to any political viewpoint. Although the Court cited a previous case in which it had upheld an adult s right to express an antidraft viewpoint in a public space in terms offensive to others, it stated that [i]t does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. The Court stressed the need for schools to teach students civility, arguing that [s]urely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. The Court noted: The schools, as instruments of the State, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.... A high school assembly or classroom is no place for a sexually explicit monologue directed toward an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the fundamental values of public school education. Hazelwood v. Kuhlmeier In Kuhlmeier, the U.S. Supreme Court ruled in favor of a school s editorial control over the content of student speech in school-sponsored activities. The principal of a high school in St. Louis County, Missouri, extracted two articles from the school s newspaper prepared by a journalism class before the paper s publication. The articles 2007 Congressional Digest Corp. Page 11

12 discussed teenage pregnancy and the effect of divorce on high school students. Three students from the journalism class brought suit against the school district, claiming the principal s actions violated their First Amendment rights. A district court denied the injunction sought by the students, but the Eighth Circuit Court of Appeals reversed. The U.S. Supreme Court reversed the Court of Appeals decision, finding that the principal s actions did not violate the First Amendment. In authorizing the principal to censor the school newspaper, the U.S. Supreme Court differentiated a school tolerating student speech from a school affirmatively promoting student speech. The Tinker decision was seen as answering the question of whether a school may silence a student s personal expression that happens to occur at school i.e., tolerating the student s nondisruptive speech. In this case, the Court held that the school newspaper was school-sponsored and, therefore, could be perceived as having the school s stamp of approval. The Court concluded: [T]he standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Consistent with its decision in Fraser, the Court also held that the First Amendment rights of students in public schools are not necessarily identical to those rights of persons speaking in a public forum. The Court argued: [S]chool facilities may be deemed to be public forums only if school authorities have by policy or by practice opened those facilities for indiscriminate use by the general public... or by some segment of the public, such as student organizations.... If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The Court determined that in this case, the school newspaper was not a public forum, but part of the course work in a journalism class. Excerpted from the February 14, 1997, Ohio General Assembly Legislative Service Commission brief Freedom of Speech in High Schools. Lower Court Holding Decision of the Eleventh Circuit U.S. Court of Appeals One January day, Coca-Cola and other private sponsors supported a Winter Olympics Torch Relay in Juneau, Alaska. Students were released from school so that they could watch the Olympic torch pass by. Joseph Frederick, then an 18-year-old senior at Juneau-Douglas High School, never made it to school that morning because he got stuck in the snow in his driveway, but he made it to the sidewalk, across from the school, where the torch would pass by. He and some friends waited until the television cameras would catch it, then unfurled a banner reading, Bong Hits 4 Jesus Congressional Digest Corp. Page 12

13 Deborah Morse, the school principal, crossed the street, grabbed and crumpled up the banner, and suspended Frederick for 10 days. He appealed the suspension administratively, but it was sustained. He then filed an action in the Federal district court seeking declaratory and other relief. There was disorder at the torch passing, but the uncontradicted evidence is that it had nothing to do with Frederick and his fellow sign-holders. Coca-Cola handed out samples in plastic bottles, and students threw them at each other. Students threw snowballs. Some students got into fights. But Frederick and his group did not participate in these disorders, saving their energy for what they hoped would be their nationally televised sign display. And the disruption that took place occurred before the display of the banner, so it could not have been caused by it. In subsequent days, there was some pro-drug graffiti in the high school, which the principal thought was sparked by the banner, but the principal did not rip down the sign at the rally because she anticipated or was concerned about such possible consequences. When Principal Morse crossed the street from the school and confronted Frederick about the banner, he asked, What about the Bill of Rights and freedom of speech? She told him to take the banner down because she felt that it violated the policy against displaying offensive material, including material that advertises or promotes use of illegal drugs, and she grabbed it from him and crumpled it up. In their answers to interrogatories, Appellees never contended that the display of the banner disrupted or was expected to disrupt classroom work. Asked for all the ways in which the banner display disrupted the educational process, they said: Display of the banner would be construed by many, including students, district personnel, parents, and others witnessing the display of the banner, as advocating or promoting illegal drug use, which is inconsistent with the district s basic educational mission to promote a healthy, drugfree lifestyle. Failure to react to the display would appear to give the district s imprimatur to that message and would be inconsistent with the district s responsibility to teach students the boundaries of socially appropriate behavior. There are some genuine disputes about the facts, but they are not material to the resolution of this case. Frederick says that students were simply released from school so that they could watch the privately sponsored Olympic torch being carried through a public street, and an affidavit he submitted pointed out that the students did not have to obtain parental permission slips to be released, as is the routine for field trips and other supervised events off of the school premises. Principal Morse says that the release was an approved social event or class trip, noting that the pep band played as the torch passed the school, the cheerleaders were out in uniform to greet the torchbearers, and teachers supervised. Frederick says (without contradiction) that he had not gone to school that day prior to the banner display, that the banner display was off school property across Glacier Avenue from the campus, and that there were a lot of people, students and non-students, there to watch the torch pass. Other students filed affidavits saying that they were just released, not required to stay together or with their teachers, except for the gym class, and school administrators did not attempt to stop students who got bored and left. Frederick says that the Bong Hits 4 Jesus language was designed to be meaningless and funny, in order to get on television, but Principal Morse says that bong hits means puffs of marijuana and the words promote marijuana use. Frederick was suspended for 10 days, and appealed unsuccessfully through all levels of available administrative and school board review. He sued for a declaratory judgment that his First Amendment rights had been violated, an injunction to remove the reference to the 10-day suspension from his school records, damages, and other relief. The district court granted summary judgment for the Appellees, on the grounds that no constitutional rights were violated and the Appellees had qualified immunity. Frederick appealed. Relevant Supreme Court Precedent 2007 Congressional Digest Corp. Page 13

14 The district court reasoned that Bethel School District No. 403 v. Fraser (1986), as opposed to Tinker v. Des Moines Independent Community School District (1969), governed Frederick s speech. We disagree. One amicus, Drug Policy Alliance, argues that we should analyze this not as a student speech case, but simply as speech on a public sidewalk. That would make the case analogous to a student having an after-school job at a video store that rents out Cheech and Chong tapes, or a student driving a car on public streets with a Bong Hits 4 Jesus bumper sticker. Were this factually such a case, the law would be easy indeed, but the facts established by the submissions on summary judgment make this a student speech case. Even though Frederick never got to school that morning, that was only because he got stuck in his driveway because of the snow. School had started, and the students were released to watch the Olympic torch pass. And even though supervision of most students was minimal or nonexistent, the school could have supervised them more if it chose to, as it did with the gym class and perhaps the pep band and cheerleaders. Frederick was a student, and school was in session. There is no genuine issue of fact material to the decision. Frederick s display was not in a class. Frederick and the other students who displayed the sign did not participate in any of the disorderly conduct of the students who threw snowballs or plastic Coca-Cola miniature sample bottles. The school principal and school board do not claim that the display disrupted or was expected to disrupt any classroom work. They concede that their objection to the display, and the reason why the principal ripped down the banner, was not concern that it would cause disruption but that its message would be understood as advocating or promoting illegal drug use. Frederick says that the words were just nonsense meant to attract television cameras because they were funny. We nevertheless proceed on the basis that the banner expressed a positive sentiment about marijuana use, however vague and nonsensical. Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor nondisruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly No. Frederick argues that his rights were violated as the regulations were applied to him. Under Tinker, they plainly were. Frederick was an adult citizen of Alaska, not a minor, at the time he displayed the sign. In Tinker, the Supreme Court held that wearing black armbands in high school, unaccompanied by any disorder or disturbance on the part of [the arm-band wearers], and unaccompanied by interference, actual or nascent, with the schools work or collision with the rights of other students to be secure and to be let alone, was constitutionally protected speech. Tinker held that the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. Tinker disposes of the school board s argument that school administrators were entitled to discipline Frederick s attempt to belittle and undercut this critical mission of preventing use of illegal drugs by a sign that was a parody of the seriousness with which the school takes its mission to prevent use of illegal drugs. Under Tinker, a school cannot censor or punish students speech merely because the students advocate a position contrary to Government policy. The Tinker armbands were about war. Government has no mission in which victory is so important as war. The Federal Government was, at the time of the facts giving rise to the Tinker case, prosecuting a war. Government policy was to support and advance the effort to win the war. The black armbands in Tinker expressed hostility to the war. By doing so, they legitimized opposition and undermined support for the war. Yet the students in high school had a 2007 Congressional Digest Corp. Page 14

15 constitutional right to express their opposition to this critically important mission of the Federal Government. The two leading Supreme Court cases that have held against students claiming a First Amendment right to speak in a way unacceptable to school administrators are distinguishable. Fraser held that a high school student did not have a First Amendment right to give a sexually suggestive nominating speech for a candidate for student office at a school assembly that was part of a school-sponsored educational program in self-government, where disruption immediately ensued as the student gave the speech. Fraser holds that high school students rights to free speech in school are not coextensive with adults rights, and pervasive sexual innuendo that is plainly offensive... to any mature person can be marked off as impermissible incivility within the school context. Fraser focuses upon the sexually offensive in-school speech that can be punished, as contrasted with the political viewpoint of the speech protected in Tinker. Our case differs from Fraser in that Frederick s speech was not sexual (sexual speech can be expected to stimulate disorder among those new to adult hormones), and did not disrupt a school assembly. Also, it is not so easy to distinguish speech about marijuana from political speech in the context of a State where referenda regarding marijuana legalization repeatedly occur and a controversial State court decision on the topic had recently been issued. The phrase Bong Hits 4 Jesus may be funny, stupid, or insulting, depending on one s point of view, but it is not plainly offensive in the way sexual innuendo is. Hazelwood School District v. Kuhlmeier (1988) is similarly distinguishable. In Kuhlmeier, the Supreme Court held that high school students did not have a First Amendment right to publish articles on pregnancy and divorce in a school newspaper over the principal s objection, where the newspaper was produced in a class on journalism, edited by the journalism teacher as part of the teaching of the class, and paid for with school money. The Court distinguished Tinker on the ground that [t]he question whether the First Amendment requires a school to tolerate particular student speech the question that we addressed in Tinker is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. This student newspaper was part of the school curriculum. Exclusion of any First Amendment duty to promote a student viewpoint means that a school necessarily retains authority to refuse to sponsor speech such as Frederick s, which arguably promotes drug use. Kuhlmeier does not control the case at bar, however, because Frederick s pro-drug banner was not sponsored or endorsed by the school, nor was it part of the curriculum, nor did it take place as part of an official school activity. Kuhlmeier might apply had Frederick insisted on making his Bong Hits 4 Jesus banner in art class, but that is not what the record shows. His display took place out of school while students were released so that they could watch a Coca-Cola and Olympics activity. Applying Precedent to the Current Case Leaving Kuhlmeier out of the analysis, because no sponsorship or curricular activity was involved, the question is how far Tinker goes to protect such student speech as Frederick s, and how far Fraser goes to protect school authority to censor and punish student speech that would undermine the school s basic educational mission. There has to be some limit on the school s authority to define its mission in order to keep Fraser consistent with the bedrock principle of Tinker that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Had the school in that case defined its mission as instilling patriotic duty or promoting support for national objectives, it still could not have punished the students for wearing the black armbands. All sorts of missions are undermined by legitimate and protected speech a school s 2007 Congressional Digest Corp. Page 15

16 anti-gun mission would be undermined by a student passing around copies of John R. Lott s book More Guns, Less Crime; a school s anti-alcohol mission would be undermined by a student ing links to a medical study showing less heart disease among moderate drinkers than teetotalers; and a school s traffic safety mission would be undermined by a student circulating copies of articles showing that traffic cameras and automatic ticketing systems for cars that run red lights increase accidents. Public schools are instruments of Government, and Government is not entitled to suppress speech that undermines whatever missions it defines for itself. What schools are entitled to do, as Fraser makes clear, is suppress speech that disrupts the good order necessary to conduct their educational function. No educational function was disrupted by the banner displayed during the Coca-Cola sponsored Olympics event. One can hypothesize off-campus events for which the students might be released that would be educational and curricular in nature and would be disrupted by speech such as Frederick s. But a Coca-Cola promotion as the Olympic torch passed by on a public street was not such an event. We have discerned three distinct areas of student speech from the Supreme Court s school precedents: (1) vulgar, lewd, obscene, and plainly offensive speech, (2) school-sponsored speech, and (3) speech that falls into neither of these categories. We conclude that the standard for reviewing the suppression of vulgar, lewd, obscene, and plainly offensive speech is governed by Fraser, school-sponsored speech by [Kuhlmeier], and all other speech by Tinker. Frederick s Bong Hits 4 Jesus falls into the third category the speech controlled by Tinker. Tinker requires that, to censor or punish student speech, the school must show a reasonable concern about the likelihood of substantial disruption to its educational mission. Appellees conceded that the speech in this case was censored only because it conflicted with the school s mission of discouraging drug use. That reason fails to meet the bar. Joseph Frederick v. Deborah Morse and the Juneau School Board was argued before Circuit Judges Hall, Kleinfeld, and Wardlaw on July 8, Excerpted from the March 10, 2006, unanimous opinion written by Judge Kleinfeld, ruling that the suspension of Joseph Frederick from high school for displaying a controversial banner while off school grounds during a civic event violated his First Amendment rights Congressional Digest Corp. Page 16

17 Does the First Amendment Allow Public Schools to Prohibit Students From Displaying Messages Promoting Drugs at School-Sponsored Events? PROS Deborah Morse and Juneau School Board, Petitioners Kenneth W. Starr, Counsel of Record On the morning of January 24, 2002, the city of Juneau, Alaska, hosted a portion of Olympic Torch Relay as part of the celebration of the 2002 Winter Olympics in Utah. Juneau-Douglas High School suspended classes for the morning to allow students to view the procession. During the event, school principal Deborah Morse observed a student, Joseph Frederick, and some of his classmates across the street from the school, holding a 14-foot banner that read, Bong Hits 4 Jesus. Morse confiscated the sign and, in a meeting later that day, suspended Frederick from school for 10 days because, among other things, Frederick s pro-drug banner violated school policy prohibiting the display of offensive material. Frederick filed suit against Morse and the city school board, alleging that the suspension violated his First Amendment right to free speech. He requested monetary damages and the removal of the incident from his academic record. On May 27, 2003, a Federal district court judge granted summary judgment in favor of the school. Frederick appealed, and on March 10, 2006, the Ninth Circuit U.S. Court of Appeals reversed the lower court, ruling that Frederick s constitutional rights had been violated. Morse and the school board appealed to the U.S. Supreme Court, which granted certiorari on December 1, Kenneth Starr is dean of the Pepperdine University School of Law. Prior to that, he served as a U.S. circuit court judge from 1983 to 1989, U.S. solicitor general from 1989 to 1993, and an independent counsel investigating the Clinton Administration from 1994 to He received his law degree from Duke University in The following is excerpted from the Brief for the Petitioners as submitted to the U.S. Supreme Court on January 16, In reversing the district court s grant of summary judgment in favor of the Juneau School Board and Deborah Morse, the Ninth Circuit embraced an unduly narrow reading of this Court s teachings with respect to the free speech rights of public school students. In its teachings with respect to student speech principles, this Court has consistently recognized that public educational institutions possess special characteristics that profoundly shape the contextually sensitive contours of free speech doctrine. From its watershed decision in Tinker v. Des Moines Independent Community School District (1969), through its subsequent decisions in Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988), this Court has both protected nondisruptive political speech by students, while respectfully deferring to school administrators judgments in cabining expression that is inconsistent with the educational function of public schools. In its First Amendment analysis, the Ninth Circuit fundamentally misconceived the nature and scope of the mission of public education in this country as elucidated by this Court in both Fraser and Kuhlmeier and, at the same time, wildly enlarged the ambit of purportedly political speech. In doing so, the court of appeals substituted its libertarian worldview for the considered judgment of school officials (and school boards) in seeking, consistent with Congress s statutory mandate, to foster and encourage a drug-free student lifestyle. Frederick s 2007 Congressional Digest Corp. Page 17

18 banner display not was an attempt to distract from the Olympic Torch Relay ceremony by promoting illegal drug use, his message itself lay far outside the province of Tinker-protected political expression. To the contrary, as Chief Judge Sedwick [of the U.S. District Court for the District of Alaska] rightly concluded, the banner s ambiguous but obtrusive message fell comfortably within the ambit of Fraser s focus on promoting appropriate norms of discourse and civility. Kuhlmeier likewise supports the school authorities decision to just say no to Respondent s whimsically drug-focused message, inasmuch as the banner if left undisturbed could have told not only the high school student body but the larger community that drug-use promotion is openly tolerated within the local public high school. Nothing in law or logic, much less common sense, requires such an extravagant result. Under challenge to address declining academic performance in the age of globalization, American public education remains even at a time of war as a vitally important subject in the unfolding democratic conversation about the Nation s future. The Ninth Circuit s destabilizing decision in this sensitive arena renders all the more daunting the vital task of teachers, administrators, and volunteer school board members in attending holistically to the needs of millions of students entrusted every school day to their charge. In reversing the district court s grant of summary judgment in favor of the Juneau School Board and Deborah Morse, the Ninth Circuit has dramatically altered the legal landscape of public education law in the United States. The court of appeals uncompromisingly libertarian vision is deeply unsettling to public school educators across the country. I. The Special Characteristics of the School Setting Require Deference for School Officials Actions. Throughout the 50 States (and the District of Columbia), public education serves what this Court long ago described as a principal instrument in awakening the child to cultural values. Brown v. Board of Education (1954). Through government-operated educational institutions, large and small, the vast majority of young Americans are prepared for later professional training and for adjust[ing] normally to [their] environment. Kuhlmeier. Those who serve as teachers and administrators in this challenging environment are tasked with a weighty and delicate responsibility. In prescribing and controlling student conduct, public educators are inexorably required to balance students constitutionally guaranteed liberties with the bedrock duty to educate young minds, including fashioning the boundaries of socially appropriate behavior. Fraser. Pursuit of these goals inevitably requires authorities to regulate speech, symbolic and otherwise, in a manner impermissible outside the school setting. In the First Amendment context, this Court has long emphasized that the rights of students in the public schools are not automatically coextensive with the rights of adults in other settings. Thus, while students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, students rights must be applied in light of the special characteristics of the school environment. Tinker. The uninhibited, robust, and wide-open free speech in adult discourse, as ordained in New York Times Co. v. Sullivan (1964), is manifestly different from the latitude accorded to schoolchildren in a custodial and tutelary environment. Vernonia School District 47J v. Acton (1995). As this Court has acknowledged on numerous occasions, the resolution of conflicts arising in the daily operation of school systems is primarily the responsibility of parents, teachers, and State and local school officials, and not of Federal judges. Kuhlmeier. Only when a decision to censor student expression has no valid educational purpose is the First Amendment so directly and sharply implicate[d] as to require judicial intervention to protect students constitutional rights. Thus, in discerning the proper doctrinal limitations upon the baseline liberty guaranteed by the Free Speech Clause, a guiding principle unifying this Court s 2007 Congressional Digest Corp. Page 18

19 teachings is that [a] school need not tolerate student speech that is inconsistent with its basic educational mission. Firmly embedded in this Court s student speech jurisprudence, that overarching principle is the beginning and end of this case. A. Tinker Protects Speech That Does Not Intrude Upon the Work of the Schools. The framework for student speech doctrine begins with Tinker. In that landmark case, the Court upheld the free speech rights of three students to wear antiwar armbands during the school day as a silent, passive political protest. The Court reasoned that wearing black armbands, a traditional sign of mourning, was expressive conduct akin to pure speech, which is entitled to comprehensive protection. At the same time, the Tinker majority recognized the unique characteristics of a public school and the unavoidable reality that administrators and teachers may suppress student speech, whether in class or out of it, that intrudes upon the work of the schools or the rights of other students. In the record before it, however, the Court could discern no evidence that the passive wearing of two-inch armbands disrupted school operations. The Tinker Court had no occasion to spell out in detail the extent or nature of disruption necessary to trigger a school s authority to curtail student speech. The Court described the requisite disruption as interference, actual or nascent, with the schools work, which is something more than undifferentiated fear or apprehension of disturbance. Under this standard, if a school administrator reasonably perceives (or forecasts) that a student s expressive conduct is presently interfering (or would eventually interfere) with the school s work, then the administrator is warranted in suppressing the particular expression (or expressive conduct). Student speech rising to this level of disruption may occur in class or out of it and may stem from time, place, or type of behavior. The Court provided further guidance by distinguishing John Tinker s silent, passive conduct from the disciplinary problems posed by aggressive, disruptive action or even group demonstrations. The Tinker Court thus foreshadowed its willingness to approve school intervention when speech is accompanied by antisocial conduct. Justice Black dissented. He lamented that the broad sweep of the majority decision invited students to use the schools at their whim as a platform and that courts, rather than schools, will allocate to themselves the function of deciding how the pupils school day will be spent. Although his opinion failed to carry the day, Justice Black s plain-spoken words continue to echo through the body of student speech law. B. Fraser Permits Schools to Prohibit Student Speech That Undermines the Basic Educational Mission. Fraser the second stage of the student speech decisional trilogy assured school officials that they retain authority to proscribe student speech that is vulgar, lewd, indecent, obscene, or plainly offensive, even absent a showing of material and substantial disruption to school discipline. Drawing from Tinker, the Fraser Court emphasized that inculcating habits and manners of civility through discouraging offensive language is truly the work of the schools. To force a school to tolerate indecorous student speech, wrote Chief Justice Burger, would undermine the school s basic educational mission. Applying this principle, the Fraser Court reversed the Ninth Circuit s contrary judgment and upheld a public high school s disciplining a student for delivering a sexually suggestive nominating speech for a student government candidate at a voluntary school assembly. That speech referred to the candidate in terms of an elaborate, graphic, and explicit sexual metaphor, though the speaker s saucy presentation employed neither profanity nor obscenity. Under the circumstances, the Court determined that it was perfectly appropriate for the school to 2007 Congressional Digest Corp. Page 19

20 disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the fundamental values of public school education. On that note, the Court embraced Justice Black s broad teaching in Tinker that the Federal Constitution [does not] compel teachers, parents, and elected school officials to surrender control of the American public school system to public school students. Emphasizing that not all types of speech are accorded identical protection, particularly in view of the special characteristics of the educational setting, the Fraser Court recognized the marked distinction between the political message of the armbands in Tinker and the sexual content of [Matthew Fraser s] speech. The Court acknowledged that some speech is properly subject to age-appropriate restrictions: [Fraser s sexually explicit] speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. In that regard, the Fraser Court echoed Justice Stewart s concurrence in Tinker, where the Justice from Cincinnati articulated the view that [a] State may permissibly determine that, at least in some precisely delineated areas, a child like someone in a captive audience is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees. Significantly for First Amendment analysis, Fraser s ribald electioneering pronouncements fell well below the standards for obscenity established in adult contexts. The bedrock point from Tinker remained: The public education setting has special characteristics profoundly informing First Amendment analysis. Justice Brennan concurred in the judgment. He agreed that, under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly which school officials conclude disrupted the school s educational mission. In dissent, Justice Stevens similarly recognized the appropriateness of disciplining students for expressive conduct that conflicts with a school s educational mission. He opined that a school faculty must regulate the content as well as the style of student speech in carrying out its educational mission. C. Kuhlmeier Allows Student Speech Restrictions in School-Sponsored Activities When Pursuant to Legitimate Pedagogical Concerns. Fraser s deferential approach to school officials First Amendment calibrations was likewise embraced in Kuhlmeier. In this final stage of the Court s school speech trilogy, the Court acknowledged that school officials are entitled to exercise pervasive control over the style and content of student speech that reasonably might be perceived to bear the school s imprimatur. Regulation of speech viewed as school-sponsored on account of the school lending its name and resources to the activity is permitted if the curtailment is reasonably related to legitimate pedagogical concerns. Thus, in Kuhlmeier, a school properly exercised its discretion in refusing to publish certain student articles on pregnancy and divorce in a school-funded student newspaper. The Court concluded that suppression of the articles was reasonably related to the tripartite school objectives of protecting the privacy of the individuals referenced in the articles, shielding younger students from inappropriate subject matter, and teaching journalistic fairness. The Kuhlmeier Court added that [a] school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use. Alluding to Fraser s emphasis on upholding schools educational mission, the majority recognized that promoting illegal substances was inconsistent with the shared values of a civilized social order. Thus, the Court left no doubt that discouraging illegal substance use reflected a legitimate pedagogical concern. II. The Tinker-Fraser-Kuhlmeier Trilogy Permitted Juneau School Officials to Discipline Frederick for Promoting Illegal Substances Congressional Digest Corp. Page 20

21 The case at hand fits comfortably within the framework of the school speech trilogy. In sharp contrast to Tinker s antiwar armband, Frederick s bong hits banner did not involve the passive expression of a political viewpoint. Rather, his slang marijuana reference was part of an antisocial publicity stunt designed to draw attention away from an important (and historic) school activity. The message that Principal Morse, Superintendent Bader, the unanimous school board, and Chief Judge Sedwick all reasonably gleaned from this banner and on which the Ninth Circuit proceeded was that it expressed a positive sentiment about marijuana use. Frederick cannot reasonably contend otherwise. The message was therefore directly contrary to the school s basic educational mission of promoting a healthy, drug-free lifestyle (as expressed in written school board policies). In the context of a school-sponsored activity, Principal Morse s restriction of this expression was indisputably consistent with an important pedagogical concern. The trilogy when distilled to its essential principles 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. Under this body of law, Frederick s claim to First Amendment protection falls woefully short. B. Discouraging Use of Illegal Substances Is an Undeniably Important Educational Mission. Preventing teenage drug use is a critical educational mission of our public schools. That the nature of the concern is important indeed perhaps compelling can hardly be doubted. Vernonia. While drug abuse remains a serious problem with adults, the severity is even more pronounced with elementary and secondary schoolchildren: School years are the time when the physical, psychological, and addictive effects of drugs are most severe. Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound; children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor. And, of course, the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. Vernonia. Troublingly, The drug abuse problem among our Nation s youth... has only grown worse in recent years, thus mak[ing] the war against drugs a pressing concern in every school. Board of Education v. Earls (2002). In view of this flinty reality, this Court has determined that special needs... exist in the public school context to justify overriding Fourth Amendment privacy interests that would otherwise apply outside the school setting. Vernonia. Accordingly, the majorities in Earls and Vernonia upheld random drug testing of students participating in extracurricular activities. These precedents once again confirmed that constitutional protections for schoolchildren are inexorably informed (and frequently diluted) by the special characteristics of the school environment. Tinker. Student free speech rights likewise appropriately yield when it comes to promoting illegal substances. [T]he single most important factor leading schoolchildren to take drugs [is] peer pressure. Earls. Impressionable adolescents face strong inducements to use drugs as they are bombarded with pro-drug messages from classmates, adults, and the media. Remaining steadfastly consistent with the drug-free-lifestyle message is therefore particularly important while school is in session. Congress recognized this fact in passing the comprehensive Safe and Drug Free Schools and Communities Act, which supports local schools drug prevention efforts and requires consistency of message that illegal drugs are wrong and harmful. Consistent with Congress s mandate, thousands of local school boards across the country, 2007 Congressional Digest Corp. Page 21

22 much like Juneau s, have addressed the drug problem by crafting policies related to drug-abuse prevention, intervention, treatment, and discipline. These policies are adopted by duly elected school board members through a public, deliberative process. The Juneau School Board, for example, is required by statute to develop and periodically review its policies governing student rights and responsibilities. These student conduct rules must substantively and procedurally comply with applicable laws and regulations. Through this exercise in constitutional selfgovernment, a common prohibatory theme has emerged: Messages promoting illegal substances are not to be tolerated during school or any school activities. Not surprisingly, lower courts addressing First Amendment challenges to anti-drug school policies had reached a bottom-line consensus at least prior to this case. Several courts had recognized that prohibitions on pro-drug messages are constitutional because such expression is plainly offensive under Fraser and inconsistent with the mission of schools to promote healthy lifestyles (including by seeking at every turn to combat substance abuse). Other courts have observed that there can be little dispute that messages promoting illegal substances cause disruption within schools. Still other courts have upheld bans on pro-drug messages in the context of school-sponsored activities. More broadly, discouraging drug use has been universally recognized and sanctioned by school boards, legislatures, and courts (including this Court) as a permissible educational goal. This appears to be the first case in American jurisprudence in which any court Federal or State has stripped public school officials of authority to proscribe pro-drug messages. This Court should remove any lingering doubt whether school authorities, pursuant to their basic educational mission, retain discretion to restrict student speech that is reasonably viewed as promoting or advocating the use of substances that are illegal to minors. C. Frederick s Pro-Drug Banner Interfered With Decorum by Radically Changing the Focus of a School Activity. The Fraser-ordained value of preserving decorum in schools likewise stands as a permissible justification for restricting student speech and for which school authorities traditionally are accorded wide discretionary latitude. Discipline stemming from the time, place, or manner of a student s expressive conduct in no ways violates the First Amendment when the school has an interest in ensuring that school activities proceed in an orderly manner. Fraser. Here, Frederick s bong hits banner substantially interfered with a school-sanctioned activity. The Olympic Torch Relay was an important community event. At the culminating moment in his high school s welcoming the Olympic Torch Relay, Frederick radically changed the subject. By dividing the audience s attention and distracting from the purpose that the Juneau School District sought to serve in sanctioning this event Frederick s expressive conduct warranted the school s uncompromising censure. His message was trebly wrong. It was the wrong message, at the wrong time, and in the wrong place. D. Principal Morse Properly Disassociated the School From Frederick s Pro-Drug Banner. Fraser, in short, closely fits the facts at hand. But so does the third member of the Court s school speech trilogy. The Ninth Circuit deemed Kuhlmeier inapplicable because the school neither sponsored nor endorsed Frederick s banner. This dismissive conclusion underappreciated Kuhlmeier s logical reach. Frederick s banner was unfurled in the midst of a highly important school-sponsored activity. By lending its resources to the event and sanctioning student observance during school hours, the school district unwittingly provided Frederick a bully pulpit for his publicity stunt. Frederick s speech was not expression in a classroom or hallway. To the contrary, he was situated outside the school with virtually the entire student body watching. At the very moment 2007 Congressional Digest Corp. Page 22

23 the school s involvement in the torch relay was at its zenith, Frederick lofted his 14-foot, subjectaltering banner for the community (and the world) to see. To be sure, reasonable observers might have concluded that the banner s message was so inimical to the school s mission that it did not bear the school s imprimatur. But this could be said of a student who pens a pro-drug article for a school-sponsored newspaper. Kuhlmeier s framework still would apply in the latter situation, and thus censoring such an article would be entirely permissible. If [Principal] Morse had been insouciantly indifferent to Frederick s drugrelated banner, many in the community might well have wondered what they are teaching at taxpayer-supported Juneau-Douglas High School. The principal, accordingly, had a powerful pedagogical concern in prohibiting such a mission-compromising expression. Similarly, under Fraser, Principal Morse properly determined that it was her responsibility to disassociate the school from the banner s pro-drug message, which undermined the school s health and safety educational mission. III. Frederick Was Subject to School Disciplinary Rules. As a student attending a school activity during school hours, Frederick was indisputably under the school s authority. He was standing with the assembled student body, which, as permitted by the administration, had lined both sides of Glacier Avenue directly in front of the school. Under these circumstances, the school board s policies and student handbook left no doubt that Frederick was subject to school disciplinary authority: Pupils who participate in approved social events and class trips are subject to district rules for student conduct; infractions of those rules will be subject to discipline in the same manner as are infractions of rules during the regular school program. The Juneau School District s rules were consistent with common practice and established law. Based on his findings, Chief Judge Sedwick determined there is no issue of fact as to whether or not this was a school-sponsored activity. The Ninth Circuit likewise concluded, simply but decisively: This is a student speech case, not a speech on a public sidewalk case. Frederick s claim that he was somehow speaking in a Jeffersonian public square is entirely refuted by the facts as determined by the two lower courts. And in that school-related context, with its special characteristics, Frederick was not at liberty to praise, however whimsically, the drug culture and thereby radically change the subject that had brought the student body to that time and place. The First Amendment does not reach nearly so far. Reply Brief The following is excerpted from the Reply Brief of the Petitioners as submitted to the U.S. Supreme Court on March 12, Respondent and his amici do not quarrel with the proposition that advocating illegal drug use by minors is out of place in our Nation s public schools. To the contrary, they accept the schools fundamental interest in discouraging the use of illegal substances. Nevertheless, Respondent and his amici suggest that Petitioners have imposed a pall of orthodoxy over the Juneau-Douglas High School by prohibiting messages that promote illegal drug use. They are mistaken. The same Juneau School Board policy that prohibits advocacy of illegal drug use explicitly recognizes that [s]tudents will not be disturbed in the exercise of their constitutionally guaranteed rights to assemble peaceably and to express ideas and opinions. Likewise, the school board embraces students rights to explore fully and fairly all sides of... controversial issues. Under no reasonable interpretation of this record were Petitioners suppressing discourse over drug policy or any other political, religious, or ideological issue in or out of the 2007 Congressional Digest Corp. Page 23

24 classroom. Nor are Juneau s student conduct rules challenged as overbroad or vague. This case is also far removed from freedom-of-conscience concerns or attempts to restrict access to books or educational materials. Rather, this case involves the enforcement of a valid student conduct rule that seeks to protect minors from illegal drug use one of the most pressing social problems plaguing our Nation s schools. Even some of Respondent s civil liberties champions accept the proposition that schools have authority to suppress pro-drug messages. The Liberty Legal Institute recognizes that the age of the students and the educational context may justify restrictions on advocacy of prohibited conduct in public schools. Education of children, and protecting children from self destructive behavior, they reason, is at the core of the mission entrusted to schools. Exactly so. The Rutherford Institute similarly acknowledges that the school arguably has a compelling interest in insuring a drug-free environment within the school and in proscribing pro-drug messages on campus or where students formally represent the school system in academics, athletics, or extracurricular activities or on other school properties. We agree. Respondent seeks to avoid the precise issue of the case schools authority to proscribe pro-drug messages. He and his amici argue (unremarkably) that school officials should not have unbridled discretion to regulate religious and political speech. We agree. Vital constitutional assurances prevent such unfettered exercise of authority. We thus have no quarrel with Tinker and the free-speech principles it embodies. Agreement ends, however, when Respondent and his amici choose to underread this Court s decisions in Fraser and Kuhlmeier. The special characteristics of the public school setting call for judicial deference to the enforcement of reasonable school rules as school officials carry out their basic educational mission. Kuhlmeier. Respondent thus seeks to recast this case as about adult speech in a public forum. This Court should reject that recharacterization, just as the courts below did. Analyzed properly, the facts establish and the law demonstrates that Petitioners did not violate Respondent s First Amendment rights and that Juneau-Douglas High School s principal, Deborah Morse, is entitled to qualified immunity. United States of America, Amicus Curiae Paul D. Clement, Solicitor General The United States is an amicus in this case because of the constitutional issues involved. President George W. Bush nominated Paul D. Clement to be solicitor general on March 14, Clement was confirmed by the Senate on June 8, Prior to that, he had served as acting solicitor general since July 12, He is also an adjunct professor of constitutional law at Georgetown University. He received his law degree from Harvard University in The following is excerpted from the Amicus Curiae Brief for the Petitioner as submitted to the U.S. Supreme Court on January 16, A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the Government could not censor similar speech outside the school. Hazelwood School District v. Kuhlmeier (1988). For at least three reasons, a public school may reasonably conclude that student advocacy of illegal drug use is fundamentally inconsistent with the school s basic educational mission. First, it is inconsistent with the school s duty to protect the health and safety of students entrusted to its custody and care in loco parentis [in place of parents]. Illegal drug use poses one of the greatest threats to the health and safety of the Nation s school children. A school district can reasonably conceive of its mission as including not only educating students, but doing so in an environment that keeps them free from the scourge of 2007 Congressional Digest Corp. Page 24

25 drugs during their K-12 years. Second, it is inconsistent with the school s need to maintain an effective learning environment, because drug use impedes students ability to learn and promotes behavior antithetical to the educational mission. Third, it is inconsistent with the school s mission to inculcat[e] fundamental values necessary to the maintenance of a democratic political system, Ambach v. Norwick (1979), because it encourages disrespect for and violation of the law. The court of appeals erred in concluding that Tinker v. Des Moines Independent Community School District (1969) requires schools to tolerate student advocacy of illegal drug use at school events. Under Tinker, schools may not prohibit speech based on a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Petitioners did not, however, prohibit and punish Respondent s speech for that reason instead, they did so because Respondent s message was inconsistent with the school s basic educational mission. Unlike Respondent s banner, Tinker s armband protesting the Vietnam War did not advocate illegal conduct, and did not address a topic central to a school s basic educational mission. The court of appeals further erred by applying heightened scrutiny on the theory that Respondent displayed his banner off campus. Education occurs both in and out of the classroom, and the fact that field trips and other school events take place off campus does not deprive them of their educational character. Nor does it deprive school officials of the authority to apply school policies to their students. It would be especially illogical to apply heightened scrutiny in the context of this case. Not only was Respondent a student attending a school-supervised event during normal school hours, he displayed his banner across the street from his school, in view of classmates on school property. Petitioners reasonably understood Respondent s Bong Hits 4 Jesus banner to refer to illegal drug use, and both lower courts properly declined to disturb that finding. Disciplinary decisions are ordinarily committed to the discretion of school administrators, who are in by far the best position to determine the contextual meaning of students speech. Federal courts should be particularly reluctant to second-guess the judgment of school administrators on a matter so central to the educational mission as deterring illegal drug use. D.A.R.E. America, Drug Free America Foundation, Inc., National Families in Action, Save Our Society from Drugs, William J. Bennett, and General Barry R. McCaffrey, Amici Curiae Gene C. Schaerr, Counsel of Record D.A.R.E. America, Drug Free America Foundation, Inc., National Families in Action, and Save Our Society from Drugs are nonprofit organizations dedicated to fighting substance abuse. William J. Bennett and General Barry R. McCaffrey are former directors of the White House Office of National Drug Control Policy. Gene C. Schaerr is a partner with the law firm Winston & Strawn, where he specializes in appellate litigation. He received his law degree from Yale University in The following is excerpted from the Amicus Curiae Brief for the Petitioners as submitted to the U.S. Supreme Court on January 16, The decision below is fundamentally misguided as a matter of sound educational policy and should be reversed under settled principles governing the speech rights of school students. Teenage drug abuse is an enormous national problem. It endangers the health and wellbeing of millions of children and undermines the educational mission of our schools. The approach to student speech taken by the decision below, however, threatens to make 2007 Congressional Digest Corp. Page 25

26 vital anti-drug policies unenforceable. By requiring a case-by-case evaluation of pro-drug speech, and prohibiting any action unless a message causes an immediate and palpable disturbance in an educational and curricular activity, the decision below makes it difficult, if not impossible, for schools to address the cumulative effects of pro-drug advocacy. Contrary to the Ninth Circuit s decision, the First Amendment does not require school officials to remain neutral when faced with pro-drug messages in the midst of a school activity. Such speech is plainly offensive under this Court s decision in Bethel School District No. 403 v. Fraser (1986), and schools are entitled to prohibit it. Moreover, as Fraser and several other decisions of this Court recognize, courts must defer to decisions of school officials like those at issue here. The primary responsibility for regulating our public schools lies with school authorities and local communities, not the Federal courts. National School Boards Association, American Association of School Administrators, and National Association of Secondary School Principals, Amici Curiae Michael E. Smith, Counsel of Record The amici in this case are all organizations representing schools boards and their administrators. Michael E. Smith is a partner with the law firm Lozano Smith, where he specializes in labor, employment, and school law. He received his law degree from the University of California-Davis in The following is excerpted from the Amicus Curiae Brief for the Petitioners as submitted to the U.S. Supreme Court on January 16, Each day school administrators like Principal Morse must manage the conflict between maintaining a safe and effective learning environment for all students, and dealing sensitively and lawfully with student free speech issues. The conflict can arise in many ways, ranging from the expression of religious views, to racially offensive statements, to violent or provocative messages, to promoting activities that are illegal or inappropriate for children. This Court should fine tune the balance struck in its existing jurisprudence on this subject between the competing interests of student free speech and the need for orderly and effective ontask schools by providing further guidance on the authority of public school officials to regulate student expressive activity when, in their reasonable professional judgment, it impinges on the learning environment. Amici urge the Court to clarify the standards as follows. First, within the analytical framework of the Tinker v. Des Moines Independent Community School District (1969)-Bethel School District No. 403 v. Fraser (1986)-Hazelwood School District v. Kuhlmeier (1988) trilogy, the Court should confirm that Fraser is not limited solely to sexual speech or sexual innuendo, but also encompasses pro-drug and other messages inimical to a school s core educational mission and ability to instill fundamental civic values and appropriate behavior. Local school boards are best suited to establish policies limiting plainly offensive speech, inculcating values, and regulating expression and behavior that in the reasonable professional judgment of school officials is inconsistent with their core educational mission. School boards should be able to consistently promote and enforce that educational mission in all school-authorized and school-supervised settings, both on and off campus, since the twenty-first century teaching environment is not, and should not be, confined to books or to the four walls of a classroom. Second, this Court should reaffirm that Tinker establishes a two-prong analysis, allowing schools to regulate speech causing a substantial disruption or intruding on the rights of other students. This will allow school boards and administrators to foster education-focused 2007 Congressional Digest Corp. Page 26

27 environments where students can learn free from messages that are threatening or hurtful to them or otherwise at odds with the academic and citizenship-building work of the schools. Third, this Court should clarify that the less a phrase like Bong Hits 4 Jesus conveys a particular message and the closer it approaches self-serving nonsense, the more leeway school officials have in regulating such expression, and the more deference their reasonable judgments in such matters should receive. Given the continuum of student speech arising from this Court s precedents, beginning with political messages and continuing through nonsensical statements, low value speech approaching the nonsensical, such as Frederick s use of the phrase Bong Hits 4 Jesus, should receive little or no First Amendment protection Congressional Digest Corp. Page 27

28 Does the First Amendment Allow Public Schools to Prohibit Students From Displaying Messages Promoting Drugs at School-Sponsored Events? CONS Joseph Frederick, Respondent Douglas K. Mertz, Counsel of Record In 2002, Joseph Frederick was a senior at Juneau-Douglas High School in Juneau, Alaska. On the morning of January 24, he was late to school because, he said, his car was stuck in snow. By the time he arrived, classes had been suspended while students watched the Olympic Torch Relay proceed through town. Frederick waited with friends across the street from the school and, as the convoy approached, unfurled a 14-foot banner that read, Bong Hits 4 Jesus. School Principal Deborah Morse observed the banner and ordered it removed. While Frederick s friends complied, Frederick refused. Morse then confiscated the banner and told Frederick to return to school. Later that day, Morse suspended Frederick for 10 days for violating school policy on offensive displays, truancy, and ignoring a staff directive. After the appeal of his suspension to the school superintendent was denied, Frederick filed suit against Morse and the school board in Federal district court. On May 27, 2003, the court granted summary judgment in favor of the school. Frederick appealed, and on March 10, 2006, the Ninth Circuit U.S. Court of Appeals ruled for Frederick. Morse and the school board appealed to the U.S. Supreme Court, which granted certiorari on December 1, Douglas K. Mertz has a solo law practice in Juneau, Alaska, specializing in general civil law. He received his law degree from Harvard University in The following is excerpted from the Brief for the Respondent as submitted to the U.S. Supreme Court on February 20, This case is not about drugs. This case is about speech. For nearly 20 years, the free speech rights of public school students have been defined through a trilogy of cases. Consistent with this Court s holdings in Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), and Hazelwood School District v. Kuhlmeier (1988), the court of appeals correctly held that Petitioners violated Frederick s First Amendment rights when they punished his nondisruptive speech because they objected to its perceived message. What Petitioners describe as a disagreement with the decision below is, in reality, a disagreement with the student speech jurisprudence that this Court has developed and applied over the past four decades. By seeking a ruling that students have no First Amendment rights against school censorship unless a decision to censor student expression has no valid educational purpose, Petitioners ask this Court to return to a pre-tinker world. The rule they propose would open the door to an enforced orthodoxy that this Court has consistently condemned, and would effectively immunize all but irrational school censorship from constitutional scrutiny. Absent a fundamental change in the law, Petitioners actions cannot be upheld. Petitioners have acknowledged from the outset that the decision to suspend Frederick from school was precipitated by their belief that the banner he displayed at the Olympic Torch Relay expressed a positive sentiment about marijuana use. Having chosen to respond to Frederick s nondisruptive speech with disciplinary action despite the fact that the speech occurred on a public sidewalk at a public event and before Frederick had even arrived at school for the day Petitioners crossed the line between legitimately conveying their own message 2007 Congressional Digest Corp. Page 28