Numerous press accounts have claimed that the Supreme Court is about to make a landmark First Amendment ruling in a case based on a 2002 incident in which an Alaskan student waved a banner with the words “Bong hits 4 Jesus.”
These reports are almost surely wrong. The only way this case could produce a landmark decision is if the court holds that the student has a right to personally sue the principal who seized his pro-drug banner and suspended him.
Such a decision would give every school administrator (or teacher for that matter) nightmares and repeal the notion that administrators and teachers who act reasonably should have qualified immunity from personal lawsuits.
In oral arguments on the case Monday, Chief Justice John Roberts ridiculed the idea that a school principal must have a detailed legal understanding of past court rulings when he or she makes split-second decisions involving school order and student discipline. The ACLU attorneys insisted that the principal had an obligation to know precisely the current court’s thinking on the line between speech that can be regulated and the speech that cannot. Other justices quickly pointed out that the case is before the court precisely because that line between such speech isn’t clear even to them.
In some ways this is a ridiculous case. The student involved in the display of the banner at a parade celebrating the Olympics in Salt Lake City says the message was “meaningless” at the same time he said it was intended to exercise his free speech rights. It is hard to see how it could be both.
In any case, the principal took the banner to be a pro-drug message (smoke pot for Jesus) and removed it. In subsequent proceedings, she said the banner was clearly intended to undermine the school’s anti-drug program and promote unlawful drug use. She pointed out that school had been let out so that students could attend the Olympics Parade.
The ACLU has emphasized a couple of peripheral issues. The first is that the student didn’t come to school that day and therefore was beyond the school’s jurisdiction. The second is that the event wasn’t on school grounds but rather across the street. These are weak arguments. The student was still a student, albeit a truant that day. The parade event was in lieu of classroom work and the school authorities had a continuing responsibility and were on site to help keep order.
Importantly, the court, in taking this case, accepted the idea that it does involve a student and it does involve behavior at a “school sponsored, faculty supervised event.” Fears that a decision in favor of the school would license teachers and administrators to roam the community stifling student speech are at the minimum far-fetched. The First Amendment would survive a ruling against the student in this case.
It was the Supreme Court that led the nation into this thicket in 1968 in a case involving students, some as young as 8 years old, who were wearing black arm bands to lament the Vietnam War. It was a question then if the armbands were symbolic speech by children or their parents. Ultimately the court said that student speech couldn’t be regulated unless it was unreasonably disruptive of school activities. That’s still the general standard.
Justice Hugo Black, one of the best friends the First Amendment ever had, dissented and his words almost 40 years later are worth recalling:
“This case,” he said, “subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this court’s expert help from Washington, to run the 23,390 public school system in our 50 states. I wish therefore, wholly to disclaim any purpose on my part to hold that the federal Constitution compels the teachers, parents and elected school officials to surrender control of the American public school system to public school students.”
Black didn’t prevail in 1968, but his words, even today, amount to a stark warning to the Supreme Court not to use the “bong case” to make matters much worse.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
