Date: June 2007
The U.S. Supreme Court ruled that a student who displayed a banner calling for “BONG HiTS 4 JESUS” was promoting illegal drug use at a school-sponsored event and thus was not eligible for First Amendment free speech protection.
The case arose from an incident in January 2002, when the Olympic torch relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers were scheduled to pass in front of the Juneau-Douglas High School during the school day, and the principal decided to permit staff and students to participate in the relay as an approved school-sponsored event. As teachers and administrators supervised, students lined both sides of the street in front of the school.
Student Joseph Frederick and others, standing on the side of the street facing the school, unfolded a 14-foot banner bearing the phrase “BONG HiTS 4 JESUS.” Students on the other side of the street could easily read the banner. When Frederick refused to remove his sign, the principal confiscated it and suspended Fredrick for 10 days. Frederick sued, alleging violation of his First Amendment rights.
A majority of the court found that this conduct occurred at a school event and that the banner’s phrase could reasonably be viewed as promoting illegal drug use—which, of course, would violate school policy. The court confirmed that students at school events are not entitled to the same free speech rights that adults enjoy in other settings and held that the special circumstances of a school environment must be considered—including, in this case, the school’s interest in discouraging illicit drug use by schoolchildren. Accordingly, the school need not tolerate Frederick’s speech (the banner) celebrating illegal drug use at a school event in the presence of administrators and teachers.
The majority of the court cautioned that this decision should not be interpreted as a broad ban on offensive speech, specifically noting that much political and religious speech—which is protected by the First Amendment—might be offensive to some. The court noted that the concern here was not that Frederick’s speech was offensive but, rather, that it was reasonably viewed as promoting illegal drug use and thus not protected by a student’s limited free speech right.
Education Legal Alliance: Friend of the court brief
The impact of this decision on California schools is questionable. State Education Code section 48907 only prohibits school related expression which is “obscene, libelous or slanderous” or “material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations or the substantial disruption of the orderly operation of the school.” Otherwise, a student’s free speech right is based on what a student may do outside of the school environment (Education Code section 48950). Therefore, because Frederick’s conduct probably does not meet the section 48907 standard Frederick could probably not have been disciplined under California law.
However, Section 48950 must be read in conjunction with Section 48907 which prohibits expression which is “obscene, libelous or slanderous” or “material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations or the substantial disruption of the orderly operation of the school.”
CSBA and its Education Legal Alliance joined with the National School Boards Association and filed an amicus brief when this case was pending in the Ninth U.S. Circuit Court of Appeals, supporting the school’s right to restrict certain types of student speech. CSBA and the Alliance were also supportive of NSBA in filing an amicus brief in the U.S. Supreme Court as well. That brief was written by attorney Michael Smith of Lozano Smith, who serves as chair of the Alliance’s Attorney Advisory Committee.
Related link
The Morris v. Frederick decision can be found at
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-278