Legal Clips, [March 2006]
The U.S. Court of Appeals for the Ninth Circuit has ruled that a Juneau, Alaska high school student's right to free speech was violated when he was suspended for off-campus speech during a school-authorized activity-speech that the school district argued promoted a message contrary to the school's educational mission. The court went further, ruling that the school's principal was not entitled to qualified immunity from the lawsuit. Students at Juneau-Douglas High School (JDHS) were released to watch the Olympic torch pass by the school. During the passing of the torch, Joe Frederick and some classmates held up a sign that read "Bong Hits 4 Jesus." Principal Deborah Morse crossed the street, grabbed and crumpled the banner, and suspended Joe. He appealed the decision through all levels of administrative and school board review and then sued, claiming that his First Amendment rights had been violated. The U.S. district court granted the school district's motion for summary judgment, holding that the principal had authority under school district policy to discipline students for display of offensive materials, including materials that could be reasonably construed as advocating drug use, and that this authority extended to off-campus, school-sponsored events.
      The Ninth Circuit vacated the district court's decision and remanded the case. The appeals court found that Joe's right to free speech was violated, citing Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which allows school officials to restrict a student's private speech only if it materially and substantially interferes with school operations, not merely because the student advocates a position contrary to government policy. The court distinguished the case from two other U.S. Supreme Court cases that permitted school officials to restrict student speech. Unlike the speech restricted in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), Joe's speech was not school-sponsored, school-endorsed, part of the school's curriculum, or made as part of a school activity. In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the Supreme Court upheld school officials' discipline of a student for engaging in speech at a school assembly that contained "pervasive sexual innuendo" that was "plainly offensive" and that resulted in immediate disruption. Noting parenthetically that "sexual speech can be expected to stimulate disorder among those new to adult hormones," the Ninth Circuit observed that Joe's sign neither was sexual nor caused disruption. "The phrase 'Bong Hits 4 Jesus' may be funny, stupid, or insulting, depending on one's point of view," the court concluded, "but it is not 'plainly offensive' in the way sexual innuendo is." Rather, speech about marijuana use was more akin to the "political viewpoint" speech in Tinker, especially since the question of marijuana legalization has been the subject repeated state referenda and a recent controversial court decision in Alaska. If Fraser's holding that a school may restrict speech that "would undermine the school's basic educational mission" is to be consistent with Tinker's principle that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the court concluded, there must be "some limit on the school's authority to define its mission." Schools can only suppress speech if it "disrupts the good order necessary to conduct their educational function."
      While conceding that there is no Ninth Circuit case law directly on point, the court cited two of its prior decisions as consistent with its conclusion that student speech that is neither school-sponsored, as in Kuhlmeier, nor vulgar, lewd, obscene, or plainly offensive, as in Fraser, can only be punished or prohibited under Tinker if school officials demonstrate a risk of substantial disruption. In Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988), the court ruled that school officials violated students' free speech by disciplining them for on-campus distribution of a student newspaper produced off-campus without prior approval. In Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992), the court invalidated the suspensions of students for refusing to remove buttons that referred to replacement teachers as "scabs" during a teachers' strike. While acknowledging that under Tinker school officials have broad authority to act to "avert perceived potential harm," JDHS officials had conceded that they acted to punish Joe's speech because it was inconsistent with the school's mission. The court also cited cases from other circuits.
      Turning to the issue of whether Principal Morse was entitled to qualified immunity from the lawsuit, the court found that the right violated by her actions was clearly established at the time. The precedents regarding student speech were well established at the time, the court determined, noting that Ms. Morse acknowledged she was aware of the case law from her school law class. There was, therefore, no basis for concluding that she reasonably but mistakenly believed her actions did not violate Joe's right to free speech.

Frederick v. Morse, No. 03-35701 (9th Cir. March 10, 2006)
[Link to full opinion]

[Editor's Note: NSBA joined an amicus brief submitted in support of the school district by the Alaska Association of School Boards, which argued that the student's speech was nonpolitical and properly regulated within the U.S. Supreme Court trilogy of student speech cases of Tinker, Fraser, and Kuhlmeier. The school district's response to the ruling, posted on its website in the upper, right-hand corner under "Ninth Circuit Ruling," criticizes the decision for leaving school administrators with no clear guidance on various issues and, especially, for the court's "disturbing… determination that Principal Morse is not entitled to qualified immunity from an award of damages." Noting that the U.S. District Court had concluded that Ms. Morse "was not only entitled to discipline Frederick for his display of the banner, but that she may have been obligated to do so," the statement says, "we don't understand how the Ninth Circuit could conclude that a high school principal should have known that it wasn't."]
[AASB amicus brief]
[Juneau School District website]