The incident on Glacier Avenue: 3/19/07 Argument

By Lyle Denniston
on Mar 17, 2007 at 10:10 am

If the Supreme Court on Monday finds itself interested in the facts in a case coming up for argument, it might never get to the law. That is because both sides in the case of Morse v. Frederick (06-278) are as divided on the facts and especially on the meaning the facts convey as they are on the serious constitutional issues at stake.

A focus on the facts may determine whether the Court sees this as a case about student free speech rights, raising major, unresolved First Amendment questions, or a case about speech on a public sidewalk, making it routine, perhaps even unremarkable. If it is only the latter, the Court has been advised, why bother? It has been suggested seriously that the case should simply be dismissed, and an alternative found to pose the issues more clearly.

When each side reaches the law questions in the briefs, the issues appear to be momentous. If the Court decides those questions, it may have to expand or contract significantly three important rulings on students’ speech rights (none of which seems exactly on point with the dispute in this case).

An Alaska high school principal and her school board, and school groups and others supporting them, insist that the case potentially will shake the legal foundations of America’s public education system, and will thwart efforts by school officials to counter the scourge of teenage drug abuse. The Justice Department, as amicus, sees the case as a fundamental test of public schools’ ability to teach students to respect the law. The former high school senior on the other side, and a wide array of supporting groups from across the ideological spectrum, see a grave new threat of turning public schools into enclaves of enforced orthodoxy or even “totalitarianism.”

Arguing the case for the school principal, Deborah Morse, and the Juneau (Alaska) School Board will be Kenneth W. Starr, the former federal judge, Justice Department official and special prosecutor who is now law dean at Pepperdine but will be appearing in his capacity as a partner of Kirkland and Ellis. Ten minutes of that side’s time will be taken by Deputy Solicitor General Edwin S. Kneedler, offering the federal government’s views. Former student Joseph Frederick (who is still seeking money damages) will be represented by Douglas K. Mertz, who has a firm in his own name in Juneau. The case is set to begin at 10 a.m., and is scheduled for one hour.

The core facts that the two sides can agree upon are these: when the Olympic torch was being carried along Glacier Avenue in Juneau, Alaska, on January 24, 2002, 18-year-old Joseph Frederick held up a 14-foot banner with the message, “BONG HITS 4 JESUS.” (“Bong hits” is slang for smoking marijuana.) Glacier Avenue runs in front of Juneau-Douglas High School, where Frederick was enrolled as a senior. School Principal Morse crossed the Avenue, and demanded that the sign be taken down; Frederick refused, and the principal grabbed the sign and crumpled it. Later, Morse suspended Frederick for ten days, citing a variety of infractions of school rules. The Ninth Circuit found a violation of Frederick’s First Amendment rights, and found that the law was so clear on this issue in January 2002 that the principal was not entitled to legal immunity to money damages.

But the agreement on the facts largely ends there. The principal and the Juneau School Board insist that Frederick was taking part in a school-sponsored event – the students were let out of school to attend the torch-passing rally, and school cheerleaders and pep band took part; the students were closely supervised; school system money was spent to bus students in from other schools; the event occurred during school hours, and four students were torch-bearers. Frederick with equal fervor insists that this was a public event in a public forum (a sidewalk next to a public street), he was not on school property at the time, he was an 18-year-old adult, and he had not even gone to class that morning so was not among students released to go to the rally.

In addition, the two sides cannot agree on what Frederick’s banner meant to say: the school argues that it was a promotion of illegal drug use that explicitly contradicted school policy, while he contends that he was, at most, trying to send a message about First Amendment rights, and what he intended was only a meaningless stunt – except, perhaps, designed to get filmed for TV news. Much of the battle in the briefs focuses on who is right about these interpretations.

The most straightforward suggestion that the Court simply dismiss the case and start over with a different one is made in a brief by a conservative legal advocacy group, the American Center for Law and Justice. “It would be regrettable,” that brief argued, “if the Court were to resolve the important questions of constitutional law at issue here in the context of a jokester’s prank, rather than a student’s bearing of a serious message….It would likewise be regrettable if the Court decides these important questions on a factual record based in significant respects upon inference (e.g., as to whether the school policies applied and whether respondent Frederick meant to advocate drugs at all).” The brief suggests the core constitutional questions are worth reviewing, but recommends that they be confronted in a different case involving “serious messages” by students clearly in a school setting. (One alternative case mentioned remains on the Court’s docket: Marineau, et al., v. Guiles, 06-757), involving a Second Circuit Court ruling in favor of a seventh grader in Williamstown, Vt., who wore a T-shirt with images of drugs, alcohol and drug paraphernalia.)

Much of Starr’s brief for the principal and the school board is devoted to shoring up the view that the torch rally definitely was a school-sponsored event, so officials were entitled, under past Court precedents, to take action to head off the dangerous message the banner supposedly conveyed. On the law, the brief contends that the Ninth Circuit Court, in ruling for Frederick, “wildly enlarged the amount of purportedly political speech” by providing protection based upon an “uncompromisingly libertarian vision” of what political expression encompasses. The Justice Department suggests what appears to be a new exception to student speech rights that would allow public school officials to act explicitly to stop students from promoting illegal use of drugs, as part of their educational mission and their duty to protect the health and safety of the students.

A coalition of anti-drug groups (also including two former White House drug “czars,” William J. Bennett and Barry R. McCaffrey) argues that the Circuit Court ruling may make anti-drug policies unenforceable in the school setting. The National School Boards Association, joined by organizations for school administrators and high school principals, urges the Court to provide new guidance on how to balance student rights with school officials’ efforts to protect a learning environment but, in the process, to expand the concept of “educational mission” to embrace more discretion for school administrators in dealing with student speech issues.

The former student’s brief goes to considerable lengths to convince the Court that there is no clear tie in the case between Frederick’s expression and the school system. “There is ample basis in this record to conclude that this is not a student speech case at all,” it contends. While it concedes that schools have an important message to deliver against drug abuse, it asserts that the schools do not have the constitutional authority to compel students to utter the same message. Frederick’s banner, it adds, was not even remotely an incitement for others to engage in law-breaking. And it argues that what he did fits comfortably into a larger public policy debate about the wisdom of criminal enforcement of laws against marijuana use.

Frederick’s stance is fervently supported by groups ranging all the way from liberal organizations such as the National Coalition Against Censorship and the Campaign for New Drug Policies to conservative organizations such as the Christian Legal Society and the Alliance Defense Fund. Much of their argument, as summed up by the anti-censorship coalition, is opposition to the view that new limits should be imposed on student speech in a setting where the Court has never imposed restrictions before – off-campus, outside the schoolhouse gates. Many of the conservative advocacy groups appear to have a strong fear that the case could lead to a new precedent enabling school officials to curb religious expression by students in public schools.

The Court is expected to decide the case (or dismiss it) sometime before recessing in late June.