WASHINGTON – The Supreme Court appeared split Monday over the line between individual freedom and institutional order in public schools, in a high-profile case that pits the First Amendment against school efforts to discourage drug use.
In 2002, Joseph Frederick, a high school senior in Juneau, Alaska, greeted the Olympic torch during a school-sponsored event with a banner that blared: “Bong Hits 4 Jesus.”
His principal said the sign promoted drug use, and suspended Frederick for 10 days. Frederick said the message was politically protected speech, and sued the principal for trampling his constitutional rights.
The case, argued Monday at the Supreme Court, could bring new clarity to the boundaries between student expression and the scope of school officials’ power.
Former federal judge and independent counsel Kenneth Starr, who represents the principal, told the justices that the case was a simple matter of a student defying longstanding school anti-drug policies.
“Drugs and the glorification of drugs are profound problems in this society,” Starr said to open his argument. “This case is ultimately about drugs.”
The justices immediately pushed back.
Justice Anthony Kennedy asked Starr which constitutional rule prevented Frederick from displaying his banner.
Starr cited a 1969 high court ruling that said students’ free speech rights could be curtailed when their speech or expression is disruptive.
But Kennedy quickly responded: “There was no classroom here.”
Starr said the court’s rules say school officials can suppress any message that contradicts their educational mission, and that would include pro-drug messages.
Justice David Souter asked whether the school could have taken the same action if the banner had a message promoting a change in drug laws to legalize marijuana.
“It’s political speech, to me,” Souter said. “I don’t see what it disrupts.”
Starr, in a revealing moment, said the school could still suppress the message, because it was at odds with the district’s drug policy.
It was a candid admission of how bold his assertions in the case are.
Indeed, most First Amendment law precludes the government from singling out particular messages for disfavor simply because they are unpopular or at odds with government policy.
Starr, backed by the federal government, is arguing to give school officials near-carte blanche to squelch messages that conflict with their educational mission.
Assistant Solicitor General Edwin Kneedler had no more success making that point to the justices than Starr seemed to. He stressed that schools need to have the authority to enforce their educational policies and pursue their missions.
“I find that a very, very disturbing argument,” Justice Samuel Alito told Kneedler. Echoing a point made earlier in the argument by Chief Justice John Roberts, Alito said schools define their missions broadly, to include things that are not really academic in nature.
Douglas Mertz, the lawyer for Frederick, also faced skepticism from the justices, particularly about his assertion that the school’s principal ought to be held personally liable for confronting Frederick about the banner.
As Mertz began his presentation, saying the case was about “free speech,” Roberts interrupted suddenly.
“It’s about money, the damages you’re seeking, right?” Roberts said.
Mertz said his client would gladly waive damages beyond a meager amount, to make his point, but Roberts pressed the issue.
“Do principals and teachers have to be afraid that they’ll be sued for doing their jobs?” Roberts asked.
Mertz said no, but they do need to worry when they act in conflict with established law.
To decide the case, the justices will have to sort out both issues – the limits on students’ free speech and the culpability of administrators if and when their actions restrict rights beyond those limits.
A decision is expected by June.
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