The Supreme Court agreed Friday to decide whether a high school student had a free-speech right to unfurl a banner that read “Bong Hits 4 Jesus” at a school-sponsored event.
A ruling on the issue, due early next year, is expected to clarify the extent to which school officials can control slogans on banners, T-shirts and the like at school events. In recent years, disputes have arisen over messages involving religion, guns, gays and drugs on T-shirts worn by students.
In March, the U.S. 9th Circuit Court of Appeals in San Francisco ruled that school officials may not “punish and censor non-disruptive” speech by students at school-sponsored events simply because they object to the message. That decision cleared the way for a student to win damages from a principal in Juneau, Alaska, who had torn down the “Bong Hits 4 Jesus” banner.
Joseph Frederick had unfurled the sign on the street outside the school in 2002, as the torch for that year’s Winter Olympics in Salt Lake City passed by. Students were released from classes to watch the event, and Frederick apparently hoped the banner would be seen on television.
Principal Deborah Morse suspended Frederick for 10 days.
Frederick sued Morse, alleging her actions violated his right to freedom of speech protected by the 1st Amendment. A federal judge in Alaska rejected the claim by Frederick, now a student at the University of Idaho, but he won before the 9th Circuit.
In August, former U.S. Solicitor Gen. Kenneth W. Starr and his law firm took up the case free of charge and appealed to the Supreme Court on behalf of the principal and the Juneau school board.
In a brief filed in the case, Starr said the 9th Circuit’s ruling would create “a dangerous precedent [that] is deeply alarming to school administrators across the country.” The decision would open the administrators to being personally sued for prohibiting “pro-drug messages” at school events, said Starr, now the dean of the Pepperdine University School of Law.
The justices said they would hear the case, Morse vs. Frederick, in February.
The line between a student’s right to speak freely and school officials’ authority to exercise control at school events long has been hazy.
During the Vietnam War, the high court said students did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That ruling, in Tinker vs. Des Moines School District, upheld students’ rights to wear black armbands to protest the war.
During the 1980s and ‘90s, the court pulled back from that pro-free-speech view and stressed that school officials had broad power to control what was said or done in school. For example, the court said a student could be punished for making a speech in a school auditorium that contained a humorous and thinly veiled sexual allusion. Another ruling said a principal could censor a high school newspaper for reporting on teen pregnancies.
In the Alaska case, however, the 9th Circuit concluded that students cannot be disciplined because officials object to the message conveyed on a T-shirt or banner, particularly at an event outside the school.
Schools are entitled “to suppress speech that disrupts the good order necessary to conduct their educational function,” wrote Judge Andrew J. Kleinfeld, one of 9th Circuit’s more conservative members. They may also stop speech that is vulgar or “plainly offensive,” he said.
“But in Frederick’s case, the school officials concede that they acted to punish speech inconsistent with the school’s mission ... of discouraging drug use, not to avoid potential harm,” he said.
Courts across the nation have divided on how to judge messages on T-shirts.
In Virginia, an appeals court upheld a student’s right to wear a T-shirt sponsored by the National Rifle Assn. depicting guns being shot. An assistant principal had objected because of its potentially violent message.
An appeals court in Atlanta, however, upheld a school’s ban on students wearing T-shirts that depicted the Confederate flag. Officials said this symbol could heighten racial tension and provoke fights.
An appeals court in Cincinnati upheld a ban on T-shirts featuring the singer Marilyn Manson on the grounds they contained “pro-drug and anti-religious messages.” In this ruling, contrary to the 9th Circuit, the court said schools may prohibit clothing that contains “symbols and words that promote values that are patently contrary to the school’s educational mission.”
Also Friday, the court agreed to decide whether taxpayers have the right to legally challenge President Bush’s “faith-based initiative” as an unconstitutional promotion of religion.
Normally, taxpayers cannot go to court to dispute how the government spends money. But in the area of religion, the court made an exception. In 1968, the court ruled that because the Constitution forbids an “establishment of religion” by government officials, taxpayers can file suit over the spending of tax money to promote religion.
In May, the U.S. appeals court in Chicago, on a 7-4 vote, cleared the way for a Wisconsin group to go forward with a lawsuit challenging the White House program, which was set up to make it easier for faith-based groups to receive federal funds.