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Schools can ban pro-drug banners

Justices rule, 5-4, that administrators have the right to discipline students for promoting illegal activities.

June 26, 2007|David G. Savage | Times Staff Writer

WASHINGTON — School principals may punish students for displaying signs that favor the use of illegal drugs, the Supreme Court said Monday in a narrow decision limiting the free-speech rights of students.

The 5-4 ruling rejected a free-speech claim from a former high school student in Juneau, Alaska, who was suspended for unfurling a banner outside school that read "Bong Hits 4 Jesus." The student, Joseph Frederick, hoped to show up on the local television news because the Olympic torch parade was due to pass by. Instead, he ended up in the principal's office and received a 10-day suspension.

He sued the principal, Deborah Morse, contending she had violated his rights under the 1st Amendment, and he won before a federal appeals court in San Francisco.

The justices sided with the principal Monday in throwing out the student's lawsuit, but they stressed they would have come to a different conclusion if the banner had carried a political or social message. For example, if the banner had read "Down with Bush" or "Praise Allah," the court might have concluded it was protected as free speech.

Bush administration lawyers had urged the court to permit public school officials to censor any student speech that interferes with the school's educational mission. But two justices in the majority -- Samuel A. Alito Jr. and Anthony M. Kennedy -- said they would not go along with such a ruling. Alito said school authorities should not have "a license to suppress speech on political or social issues based on disagreement with the viewpoint expressed."

This strong support for free-speech appeals to conservatives and liberals.

Some conservative groups have gone to court to defend Christian students who have worn T-shirts objecting to homosexuality or proclaiming their faith in Jesus.

But the Alaska case decided Monday turned on whether principals can forbid signs, banners or T-shirts that appear to support illegal drug use. Chief Justice John G. Roberts Jr. put together a five-member majority to uphold the principal's decision in this case.

"School principals have a difficult job, and a vitally important one," Roberts said. "When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act, or not act, on the spot. It was reasonable for her to conclude the banner promoted illegal drug use -- in violation of established school policy -- and that failing to act would send a powerful message to the students in her charge.

"The 1st Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."

Justices Antonin Scalia and Clarence Thomas, along with Kennedy and Alito, agreed with Roberts in Morse vs. Frederick.

While Alito and Kennedy said they supported broad free-speech rights for students, Thomas said he would have gone further in the other direction and said high school students do not have free-speech rights.

The court's main ruling in this area of free-speech law goes back to the Vietnam War era. In 1969, it sided with students who had worn black armbands to high school to protest the war. The court said then in Tinker vs. Des Moines Independent Community School District that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Roberts cited that phrase with approval Monday, and only Thomas, speaking for himself, said he would overrule the Tinker decision.

Since 1969, high school students have not won a free-speech case in the Supreme Court. In 1986, for example, the court said a student could be disciplined for giving a speech that included several mild sexual allusions. Two years later, the court said a teacher could remove articles from a school newspaper because they mentioned the names of girls who were pregnant.

However, the court has maintained the view that speech by students, including signs or T-shirts, should be permitted, so long as it is not "disruptive." The U.S. 9th Circuit Court of Appeals relied on that formulation when it ruled in favor of Frederick and his "bong hits" banner.

But the Supreme Court said advocating illegal drugs at school could not be treated as protected speech.

Justice John Paul Stevens spoke for the dissenters Monday and questioned whether the "bong hits" sign had much to do with illegal drug use.

He called it a "nonsense banner" and said "the court does serious violence to the 1st Amendment in upholding -- indeed, lauding -- a school's decision to punish Frederick for expressing a view with which it disagreed."

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