It has often been observed that there are no unimportant Supreme Court cases. Every one of them matters, and so it was a little odd last week when an American Civil Liberties Union official said he was surprised the Supreme Court had decided to review the free speech case involving a Juneau, Alaska, high school student.
The student, Joseph Frederick, had been suspended in 2002 for displaying a large banner that read “Bong Hits 4 Jesus” at a parade featuring the carrying of the Olympic torch.
The ACLU represented the student in the lower courts, including before the 9th Circuit Court of Appeals. That court held Frederick’s constitutional rights had been violated by the school principal, Deborah Morse, and that the student could sue her for financial damages.
The Alaskan ACLU official opined that the facts of the case are unique and don’t lend themselves to the creation of much new case law.
The proper response to that claim is: Let’s wait and see. There is much about the case and much about the circuit court ruling that deserves further attention.
If one wanted to predict the outcome of the case at this early stage, a couple of things should be initially noted. The first is that the Supreme Court rarely takes cases out of the 9th Circuit (the most reversed circuit court in America) simply to pat the court on the back and say, “Way to go.” Often, the high court finds fault with the 9th Circuit’s reasoning. A second point is that Ken Starr, former U.S. solicitor general, represents the school district and took the case pro bono, or “for the public good.” It must be assumed Starr thinks the case presents important concerns.
The case facts are quite simple. School in Juneau was dismissed one January day in 2002 so students could attend a parade featuring runners carrying the Olympic torch. The parade passed the street next to the school and, as television cameras scanned the scene, Frederick, with the help of others, unfurled his banner (“Bong Hits 4 Jesus”), which roughly translates into “Smoke marijuana for Jesus.” The principal approached Frederick and, after an exchange in which the student cited the Bill of Rights and his free speech interests, Morse took the banner, crumpled it, and told Frederick he was suspended for 10 days.
When the principal was later asked to explain why she thought the banner was disruptive to the educational process, she explained that the school district had a strict drug-free policy and that the banner was clearly in conflict with that policy and might be viewed by others at the parade as a school endorsement of illegal drug use.
It’s important to keep in mind that although school had been let out for the parade, the attendance at the event was nominally supervised by school personnel and the parade was deemed to be of educational value in and of itself.
The 9th Circuit panel was unimpressed by these facts and held that the banner was not disruptive of the educational process, that Frederick’s rights were thus violated and that the principal had no qualified immunity from a lawsuit seeking monetary damages.
To reach this remarkable result, the court had to find that the principal not only knew all of the appropriate case law and was able to apply it on the spot but that there was simply no basis on which she “reasonably but mistakenly” could have believed her conduct was constitutionally permissible.
The judges emphasized that the principal didn’t specifically claim the student’s action was disruptive, adding that it’s generally settled law that disruptive student behavior on school grounds can be regulated. This conclusion, however, seems more of a minor distinction than a major difference.
The banner was clearly intended to be disruptive. It could have had no other purpose. It was meant to disrupt the parade, the television coverage and whatever “education” was otherwise in progress.
In protecting this form of student speech and in holding that the school principal can now be sued personally for damages, the 9th Circuit again finds itself way out on a legal limb. Here’s hoping Ken Starr and the Supreme Court do their duty and – to finish the metaphor – saw it off.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff.
