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Commentary on Morse v. Frederick

The following is by Scott Street, an Akin Gump summer associate and a student at Loyola Law School in LA.

The Supreme Court finally went back to school on Monday, but it answered hardly any of the questions that have vexed lower courts in student-speech cases over the past decade. As other authors have noted in this space, the Court dodged the question of how far the rhetorical “schoolhouse gate” of Tinker v. Des Moines Independent Community School District actually extends. For instance, does it extend to web pages created by students off-campus that discuss school-related issues and are gossiped about on campus?

But, on a more basic level, the Court also missed an opportunity to clarify what Tinker and its entire student-speech doctrine really means. To be sure, the Court did offer some guidance to lower courts about the doctrine, clarifying that Tinker, Bethel v. Fraser, and Hazelwood v. Kuhlmeier establish different standards for measuring the regulation of student speech. For example, the Court clarified that Kuhlmeier applies when a reasonable listener would believe that the student’s speech bears the imprimatur of the school. It reaffirmed that Tinker supplies the normal standard, evaluating whether speech substantially or materially disrupts school activity (or could reasonably be forecast to cause such disruption). And it said that Fraser supplies a different test, although it did not explain what that test is or when it applies. Instead, the Court merely concluded that the Tinker test does not represent the only form of analysis for student speech cases.

While not particularly enlightening, that explanation should help lower courts, which have struggled to understand the intersection of the Court’s student-speech trilogy. For instance, some courts have said that Fraser only governs student speech delivered at a school assembly, as a district court in Washington did in Emmett v. Kent School District, while others have read the case to supply a broader “lewd and plainly offensive speech analysis,” as the Pennsylvania Supreme Court did in J.S. v. Bethlehem Area School District. The Chief Justice suggested that Fraser does not extend as far as the Pennsylvania court believed. But the Court’s opinion raises more questions than it answers.

Indeed, most obviously, we have to wonder what standard the Morse Court applied in reaching its decision. It certainly did not apply a Tinker substantial disruption standard. And it said explicitly that Kuhlmeier does not apply because no reasonable person would believe Frederick’s banner to bear the imprimatur of the school. But it also did not use the Fraser framework; in fact, it chose to postpone the debate about what Fraser means to another day. Instead, the Court simply said that school officials may prohibit speech that they reasonably believe advocates illegal drug use, so long as the speech cannot be interpreted as commenting on any political or social issue (this latter portion stems from the Alito/Kennedy concurrence, which undoubtedly gave the Chief Justice his majority).

That might make sense as a matter of public policy. The Court noted how Congress has made it the duty of school officials to stem the increase in illegal drug use among teenagers, giving them billions of dollars to fight the problem. In this vein, the Court also seemed persuaded by Dean Starr’s in loco parentis argument, which supplies administrators (during school hours) with the duty to promote the health and safety of their children (which drugs threaten). Furthermore, the Chief might have needed to use this theory to keep his majority, since Justices Alito and Kennedy are two of the Court’s strongest proponents of individual First Amendment liberties. But, in reality, the Morse holding is nothing more than subject-matter discrimination justified by the unique responsibilities of public school officials: it has nothing to do with the student-speech doctrine developed in Tinker, Fraser, and Kuhlmeier.

The Court developed its student-speech doctrine under the theory that school officials could prohibit student speech (even speech that comments on political and social subjects) when it caused an actual disruption of schoolwork or when school officials could reasonably have believed it would create such a disturbance. Say, for example, that Mary Beth Tinker and her friends had worn their black armbands to class and, instead of sitting in class quietly and letting the armband speak for them, they joined hands, left class, and started walking from classroom to classroom, singing folk songs to protest the Vietnam War. After re-reading the Tinker opinion countless times this Term, I can find nothing to suggest that the Court would have struck down the school’s effort to discipline those students for interrupting classes, even though the interruption encompassed political speech.

Of course, a number of lower courts disagree with me. That is why I hoped that the Court would resolve the issue in this case and clarify what the Tinker standard means and determine how much latitude it really gives school officials to discipline students when, like Joseph Frederick, they interfere with a school activity. Instead, the Court chose the easy way out and concluded that administrators can punish students for telling other kids to use drugs because drugs are bad. But while that answer might resolve this case, it will have little practical effect on the school community. Ultimately, the Court will have to reevaluate what Tinker says, even before it determines how far the schoolhouse gate extends. I may not agree with its answer at that point, but at least it will give school officials some idea of how to maintain order in our public high schools.