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).

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.

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

The principal does not have to pay, but future principals in her position will have to.

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).