Analysis: A new exception to “Tinker”?
The Supreme Court on Monday toyed with the notion that public school officials should have added discretion to censor student speech that they may interpret as advocating use of illegal drugs. But this was only a flirtation, not a warm embrace. During the argument in Morse v. Frederick (06-278), a clear majority of the Justices showed significant skepticism about creating a wide exception to the curb on suppression of student speech that the Court spelled out in 1969 in Tinker v. Des Moines School District
As blog colleague Marty Lederman has pointed out in the post below, a sweeping exception to Tinker had the visible support Monday of only Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia, who seemed to be competing to lay out the most generous view of officials’ discretion to enforce school-preferred messages. Although each made a fleeting comment here and there to suggest that they might hesitate to endorse total discretion for teachers and principals to stamp out any message that school officials deemed contradictory to their own definition of “educational mission,” there was little to suggest this was a real hesitation.
The Justice Department, and some school officials and supporters, would prefer a declaration by the Court that public school administrators are constitutionally free to bar any student speech that might appear to them to be advocacting a violation of law — a more sweeping proposition than wiping out student speech that seems to advocate using illegal drugs. Justice Anthony M. Kennedy, whose vote the Department would surely need for a decision going that far, was openly hostile to it. And, somewhat surprisingly, so was Justice Samuel A. Alito, Jr., one of the Court’s more conservative members.
Kennedy, in the past, has been most aggressive in supporting official action to deal with drug abuse, and especialliy so in the public school context. But he left no doubt, in questioning Kenneth W. Starr, attorney for the Juneau, Alaska, School Board and principal Deborah Morse, that pro-drug speech suppression was about as far as he would go in this case. “The rule you proposed,” Kennedy told Starr, “is that the school has wide discretion to define its educational mission and it can restrict speech that;s inconsistent with that mission….And it seems to me that;s much broader than Tinker.”
Scalia sensed this hostility from Kennedy, jumping in to suggest that he favors suppression of any student speech “that advocates violation of the law.” Starr, seeming to walk away somewhat from the points that had troubled Kennedy, said that would lead the Court into areas of suppression of protected speech, and added: “I don’t think the Court needs to stray into those areas…”
Much of the one-hour hearing was taken up with either puzzled efforts by the Justices to find out just what had happened in the student speech censorship incident outside a Juneau high school in early 2002. It was far from clear that the Justices had a settled view of whether senior Joseph Frederick actually had disrupted anything by holding up a 14-foot banner reading “Bong Hits 4 Jesus” during a rally to honor the Olympic torch. And it was not plain that the Justices were sure of what that banner’s message really was.
The Chief Justice, for example, seemed uncertain about what drove the high school senior to make his demonstration across from the school during the torch rally. He ascribed a number of motives to Frederick that Frederick’s lawyer, Douglas K. Mertz, promptly disputed, saying the record disputed Roberts’ assumptions.
Sounding somewhat frustrated, Justice David H. Souter remarked near the end of the hearing: “We have had a debate here for going on 50 minutes about what Tinker means, about the proper charaterization of the behavior, the non-speech behavior. The school’s terms in dealing with the kids that morning. The meaning of…the statement. We’ve been debating this in this courtroom for going on an hour, and it seems to me…there is reasonable debate.” Thus, Souter said, perhaps the school principal may not have known, at the time of the incident, what the correct view of the law was.
That was a clear indication that the Court may well be tempted to find that Principal Morse could not be charged with knowledge, back in 2002, of what exactly her official discretion was under the Tinker doctrine, and thus might be accorded legal immunity, at least to damages claims.
The Chief Justice reinforced that point with an expression of concern that, not only might a decision in the student’s favor mean that Principal Morse would “have to pay out of her own pocket” money damages that Frederick might yet win, but it also might mean that “principals and teachers around the country have to fear that they’re going to have to pay out of their personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school’s educational mission.”
Justice Stephen G. Breyer also seemed worried that a decision broadly favoring Frederick’s right to stage his demonstration could mean “we’ll suddenly see people testing limits all over the place in the high schools.”
The Court is expected to decide the case before recessing for the summer.
Justice Souter’s comment, noted in the last paragraph of the post, relates to the question of qualified immunity. It appears to me that the Justices seem pretty well agreed that Ms. Morse won’t have to fork over any dough. The underlying First Amendment question is a more difficult call.
Comment by Kent Scheidegger — March 19, 2007 @ 6:38 pm
Yeah, the justices will definitely grant the principal qualified immunity.
The contours of the Supreme Court’s Bethel decision are fuzzy enough to warrant qualified immunity, even though the student has a perfectly plausible underlying First Amendment claim.
That’s because the test for qualified immunity is whether the law was so clear that the school official acted in a “plainly incompetent” fashion in violating it, not whether the First Amendment was violated.
The Ninth Circuit denied qualified immunity, but it had precedents to follow in cases such as Chandler v. McMinnville Sch. Dist. (9th Cir. 1992) which recognize clear limits on Bethel.
But the Supreme Court doesn’t have precedents of its own limiting Bethel in the K-12 context, and it doesn’t place great weight on a particular lower court’s decisions in deciding either the merits or qualified immunity. (Not all circuits apply Bethel the same way, anyway).
How the justices will rule on the underlying First Amendment claim is not clear.
Although it’s a close case, I think that the student ought to win.
The school’s argument that it can ban any speech advocating a position contrary to its own as a purported interference with its educational mission is breathtakingly broad and dangerous.
School districts take sides in a host of thorny social issues, and it cannot be the case that merely be injecting themselves into a controversy, they get license to suppress opposing viewpoints.
The Seattle School District used race in student assignment to promote racial balance. Thus, using race was part of the school’s “mission” of racial balancing.
But students of that very same school district have criticized that policy, both in the schools and in letters to the editor of the Seattle Times. Can they be punished for expressing their First Amendment rights in that time-honored fashion?
Schools rightly have a mission of teaching gender equality. Does that mean that they can punish a Catholic student for arguing that the priesthood should be reserved for men?
Does a school district in a state that has a same-sex marriage ban have the right to silence a gay student who criticizes such a ban? (state constitutions often explicitly include state educational institutions by name as entities covered by particular prohibitions).
(In the 1970s, some schools treated homosexuality as being immoral or a disorder. The courts rightly did not let them ban criticism of this position on the grounds that it was against school policy).
Many school districts seek to promote nondiscrimination based on sexual orientation.
Does that mean that they can ban members of religious denominations from defending their denominations’ not hiring gay men and lesbians as ministers, when the subject is first raised by others who criticize their denominations? Or that they can make them participate in gay pride events?
In the college context, courts have held that speech CANNOT be suppressed because it conflicts with a school’s stated educational mission of promoting a contrary perspective. See, e.g., Bair v. Shippensburg Univ., 280 F.Supp. 357 (M.D. Pa. 2003); see Iota Xi Chapter v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993).
Learning to deal with differing viewpoints is not disruption of the educational process, it is a necessary part of the educational process.
Moreover, cracking down on student speech is not necessary for school discipline.
Most challenges to student discipline do not even involve the First Amendment. Most cases challenging student discipline arise under statutes, such as the Individuals with Disabilities Education Act (which limits discipline of students with behavioral disorders), not constitutional provisions like the First Amendment.
And the due process clause is the source of far more student lawsuits under the Constitution than is the First Amendment.
Allowing schools to ban speech supposedly at odds with their educational mission is a recipe for geographic balkanization. School districts in liberal areas will be tempted to squelch socially conservative views as being at odds with “diversity,” while school districts in conservative areas will be tempted to squelch liberal views as “unpatriotic” or “immoral.”
The repeated suggestion in oral argument by Ken Starr that student speech has to be “political speech” is also overbroad. While political speech is deserving of the highest level of First Amendment protection, and a greater showing of disruption should be required before it can be banned, even non-political speech is protected, both in school and out.
Speech need not be “political” to be protected by the First Amendment. “It is immaterial whether the beliefs sought to be advanced . . . pertain to political, economic, religious, or cultural matters.” NAACP v. Alabama, 357 U.S. 449, 460 (1958). The First Amendment protects not only the right to engage in political speech, but also any “expression about philosophical, social, artistic, economic, literary, or ethical matters.” Abood v. Detroit Board of Education (1978); see also, e.g., Pinard v. Clatskanie School District, 446 F.3d 964, 973 (9th Cir. 2006) (student speech need not address a matter of public concern); Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001) (same); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993) (even low-grade, juvenile entertainment, such as a fraternity skit, is protected by the First Amendment).
The school’s argument that offensive speech is automatically thereby “disruptive” conflates two different exceptions to First Amendment protection: the exception recognized in Tinker (for disruptive speech) with the exception later recognized in Bethel (for lewd, patently offensive speech).
Courts to date have not done that, treating them as analytically distinct. Thus, in the college setting, Tinker’s disruption standard applies (although in practice, courts seem to require more disruption in certain contexts for speech to be restricted in college than in high school), but Bethel doesn’t (indeed, the plaintiff in the Supreme Court’s decision in Papish v. Curators of the University of Missouri would have lost her case had the court applied a Bethel standard to her speech).
Comment by Hans Bader — March 19, 2007 @ 7:33 pm
I think both comments above are correct.
The principal does not have to pay, but future principals in her position will have to.
Comment by Jacques McKenzie — March 19, 2007 @ 7:35 pm
On C-SPAN Sunday, Lyle made a point of how conservative Roberts was, echoing pre-confirmation descriptions of his being “the most conservative person who could be confirmed.” Robets’ point yesterday, which Starr presented with complete baldness, was that public school activities are not any form of public forum, no matter how limited, but rather a platform for government or compelled speech. Rather than opposing viewpoint discrimination, as conservatives have done in the Good News Club type cases, in this case they were 100% in favor of viewpoint discrimination.
Another point from the argument is the potential for qualified immunity to become unqualified. Just because the Court wants to go in a different direction, it does not mean that the law was not clear before they set about their program. It is just that they are not willing to admit they are chnaging the law while they are doing it. Only later do they become willing to say, for example, “Oh, but that was when we were willing to infer causes of action.”
Roger Friedman
Comment by r.friedman — March 20, 2007 @ 7:26 am
Here are germane matters that may have gotten swept overboard here.
Under Alaska law, students are not required to attend school after reaching the age of 16. Sixteen, seventeen and eighteen year old Alaskans attend voluntarily, in the manner of students attending college.
Previously, Frederick elected to sometimes attend school, sometimes not attend school. The principal could have dismissed him for failure to attend school consistently. But, the school followed a pragmatic laissez-faire course with Frederick, because it received state funding for his being a student of record, and probably the principal decided that Frederick was learning more than if he were expelled, or dropped out.
We presume he completed his assignments and passed his tests satisfactorily (he ultimately graduated), so his spotty self-scheduled attendance pattern was accepted.
Frederick was allowed to “do his own thing” during school hours, as someone who was under no legal compunction to attend school, either regularly, or at all, prior to the Olympic torch relay.
Frederick’s original complaint alleged that many students meandered off to local eateries, completely unsupervised. For those over the age of 16, this was legal, and no one was punished, according to affidavits filed by several students.
Frederick did not attend school that day. There has been no evidence presented that he was acting in the capacity of a student attending school that day, nor that the school controlled the sidewalk across the street from school property.
The school didn’t sponsor the relay. Corporate Olympic advertisers, such as Coca-Cola did, without consulting the Juneau School District. The district reportedly provided 4 students to pass the torch, a pep-band playing on school grounds, and many warm bodies as an audience.
Frederick did not consider himself to be a member of this school-provided audience. It was his right to define his own status that day, as an 18 year old adult who was under no compunction to attend school, or the relay, but voluntarily chose to do the latter, as a private adult citizen. And that off school grounds.
On the matter of damages, the principal should be required to compensate Frederick for the time and materials required to make his banner. Maybe ten bucks.
As for the 8-day suspension following the incident, it didn’t hurt Frederick, who went on to the University of Idaho, and according to USA Today (Dec 2006) was spending a semester “teaching abroad” recently.
This was a very, very smart kid. He didn’t become disaffected, as most recipients of school discipline do. He sought and obtained first-rate counsel pro bono, won a Court of Appeals decision, and win or lose, got a Supreme Court hearing. Now he’s doing public service. Does anyone believe he won’t be able to get into nearly any law school in the country, should he choose this pathway? So, as a practical matter, no damages should be paid for his suspension. No tangible injury occurred in this case.
Applying Tinker would be ironic: Frederick’s banner did provoke disruption. It incited the principal to become disruptive in grabbing the banner and confiscating it, in a vandalous manner, when it was otherwise provoking no disorder of any kind.
Interestingly, Morse is now the district’s “Facilities Planning Coordinator”. Running a school with many young-adult voluntary attendees was apparently not her forte.
Comment by Mark Schooley — March 20, 2007 @ 11:12 am
I think this case could go a number of ways. It’s entirely plausible that the Court might reverse the Ninth Circuit while splintering on the rationale. From my read of the transcript, the argument in Frederick tracked three potential fault lines on the merits question:
1) affirming under Tinker,
2) reversing by adopting Morse’s strong theory of Fraser and expanding the “basic educational mission” to include combating drug use, and
3) reversing under a weak theory of the Fraser (possibly influenced by
Kuhlmeier) that focuses on restricting speech during school activities that are intended to express a specific institutional message.
I can see Justices Alito, Ginsburg, and Souter signing onto the strong Tinker theory, and Chief Justice Roberts and Justices Scalia and Thomas embracing the strong Fraser theory. (Alito’s resistance to the government’s broad view of Fraser is not so surprising given his opinion in Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir.
2001). That decision invalidated a public school’s anti-harassment speech code under Tinker after several Christian plaintiffs challenged its chilling effect on their religiously motivated anti-homosexual speech. Then-Judge Alito framed Fraser as a case concerned with letting schools restrict only certain manners of expression, and not certain messages or viewpoints. See id. at 20.)
While skeptical of the strong Fraser theory during Morse’s argument, Justice Kennedy seemed sympathetic during Frederick’s argument to the weaker “institutional message” version; for example, on page 50 of the transcript, he emphasized how the banner was “completely disruptive” of the message that the school’s sponsorship of the pep rally was designed to express. Justice Stevens’
question on pages 14-15, describing the rally as a “school event” and contrasting it with a hypothetical banner display further down the road, suggests he could be similarly sympathetic to Theory #3. (Notably, Stevens’
dissent in Fraser was limited to a procedural due process objection.) And, as I have suggested in the Yale Law Journal Pocket Part, Justice Breyer’s strong endorsement of a school’s anti-drug mission in the Earls case (coupled with his pragmatic approach to the First Amendment) may shade his interpretation of Frederick’s facts — a hypothesis seemingly supported by his comments to Mertz that he was “struggling” with the case (see page 38).
Comment by Murad Hussain — March 24, 2007 @ 5:05 pm