Free Speech in High Schools

The Objectivist
BONG HITS FOR FREE SPEECH
Dunkirk-Fredonia Observer
March 20, 2007

The Supreme Court recently (March 19, 2007) heard Morse v. Frederick, a Supreme Court case about free speech for high school students. The case arose in January 2002, when Coca-Cola and other private sponsors supported a “Winter Olympics Day.” An 18-year-old high school student, Joseph Frederick, didn’t go to school and later attended the rally for the Winter Olympics Torch Relay. Fellow students joined him since the students were released from class that day so that they could watch the Olympic torch pass by. There were fistfights and snowball fights at this “educational” event, but Frederick and his friends did not participate. Instead, they unfurled a 14-foot “BONG HiTS 4 JESUS” banner to get on TV. He took the phrase from a snowboard and viewed it as meaningless. I checked with my brother and he confirmed that this slogan is funny.

There is controversy over whether the students were on a field trip or other supervised event. The students did not have to obtain parental permission slips as would be required for such an event and were permitted to leave the rally. Nonetheless the Juneau school claimed that at the rally the school was in session (they must have done a few hits).

The principal, Deborah Morse, then grabbed and crumpled the banner. She later suspended Frederick for ten days. He says she suspended him for five and then doubled it when he quoted Thomas Jefferson, she denies this. The principal and school conceded that the display did not disrupt nor was expected to disrupt classroom work, but was shut down because it advocated illegal drug use.

Frederick then sued Morse and the school board because, he says, it violated his free-speech rights. He also sued Morse arguing that his rights were so clearly established that Morse was not entitled to legal immunity.

One thing to note about this event is that letting students out of class to attend some meaningless rally for a sporting event (and not even the NFL) was a disgrace. One would hope that school boards would be a little more careful about hiring administrators with so little respect for classroom learning.

The school’s case is weak. First, if this speech was not part of a student event, the case is easy since the school then had no basis for punishing Frederick. The Ninth Circuit held that school was in session, but it’s hard to see what facts support this conclusion.

Second, even if it was a school event, the law clearly favors Frederick. A previous Supreme Court case, Tinker v. Des Moines Independent Community School District established that the school may interfere with interpersonal communication only if it disrupts school learning or invades others’ rights. This has since been narrowed so as to allow schools to ban indecent speech (Bethel School District No. 403 v. Fraser) and control the content of school-paid-for activities, particularly when others might view the expression as being as being endorsed by the school (Hazelwood School District v. Kuhlmeier). Neither exception applies here.

Third, this is a terrible policy. Dahlia Lithwick of Slate points out that the rule the Juneau school board advocated could ban clear and polite expressions of ideas. It could get rid of banners or T-shirts that say “Change the Marijuana Laws.” Murad Hussain of the Yale Law Journal points out that the federal courts are already well down this path having permitted schools to ban Marilyn Manson T-shirts because of their anti-religious content and religiously motivated statements opposing gay sexuality. Other schools have attempted to ban T-shirts with confederate flags. It is worth noting that schools would never ban anti-drug, pro-gay, or pro-Lincoln messages. They are in effect claiming a right to censor some viewpoints. Such censorship allows little room for high school students to engage in a free and open discussion of ideas, which should be one of the hallmarks of an education. This is important both as a way for society to discover the truth and for individuals decide what to believe and why to believe it. The Juneau school’s actions were not an attempt to shut down obscenity, lewdness, fighting words, etc, but rather an attempt to control what students do by controlling what they believe. What could be more un-American?

Entrenched school officials often try to shut down robust debate whether it is over the Vietnam War or race differences in IQ. After all, such discussion calls into question some of the authorities’ policies and many of officials neither can nor want to defend. For example, it’s not easy to defend the criminalization of harmless recreational drugs like alcohol in the past or marijuana today and many drug-prohibitionists and DARE fans know this. It also tends to out zealots (for example, administrators who favor harsh punishment for students caught with marijuana) when they’d prefer to stay in the closet.

Fourth, the Juneau school board’s proposed rule is incredibly vague. Their attorney, Ken Starr (yes, the oral-sex inquisitor) argued that the school may restrict student expression because it has the task of getting students to adopt the “habits and manners of civility” and “values of citizenship.” Furthermore, the interpretation of a particular banner, T-shirt, or other the message must be left to the frontline message interpreter (that is, administrator). This is so unclear as to be no rule at all.

This case is big because of its centrality to free speech in high schools. We can only hope that Morse has to pay through the nose for her Constitutional illiteracy. It’s best to keep the enemies of liberty on the run.