'Bong Hits 4 Jesus': Student Protest Goes to Supreme Court


March 15, 2007 — -- Joseph Frederick, a student rebel halfway through his senior year of high school, tried the patience of his principal when he displayed a drug-referenced sign reading "Bong Hits 4 Jesus" at a public parade in Juneau, Alaska, in 2002.

The 18-year-old had fashioned a 14-foot paper banner, which he held as the Olympic torch passed across the street from his high school on a national relay leading up to the 2002 winter games in Salt Lake City.

Frederick said he wanted to capture the attention of TV cameras -- and the ire of his principal.

Principal Deborah Morse, who had previously disciplined Frederick for other acts of protest, confiscated the banner and suspended Frederick, sparking a feud that has gone all the way to the Supreme Court.

Monday, the Court will hear arguments on Morse v. Frederick, in what legal experts say could be the most significant case on student free speech since the days of Vietnam War protests.

At stake is the 1969 landmark ruling Tinker v. Des Moines, which said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Since then, the Court has narrowed that ruling, giving schools the right to censor speech to maintain order and protect students from harmful messages.

But since the 1999 student shootings at Columbine High School, the legal climate has changed, and that, experts said, could influence the Court's tolerance for student free speech.

"The student has a better case than the school," said Martha Minow, professor at Harvard Law School. "But the trend of the Supreme Court has been toward curbing student speech and increasing deference to school administrators. If the school district wins here, it could have important ramifications."

The school charges that Frederick's banner promoted drug use and had an offensive religious message. Frederick said the language, which he had seen on a snowboard, is meaningless.

Frederick's case has been taken up by the American Civil Liberties Union, which agrees the message on his banner was controversial, but he had the right to express it. The ACLU further argues that student free speech restrictions since the Tinker case do not apply: The event was not school-sponsored and Frederick was not disruptive.

The controversy has drawn an array of high-profile players, including Kenneth Starr, independent counsel during the President Clinton-Monica Lewinsky investigation, who has offered his pro bono services to Morse. Morse has also received the support of school boards around the country and the Bush administration.

Also in the spotlight is Mary Beth Tinker, now 54 and one of the defendants in the historic Vietnam-era case; she was suspended for wearing a black armband to her Iowa school to protest the war. Now a nurse and advocate for student rights, Tinker said she'll be an "active observer" on the side of young Joseph Frederick.

"I had no idea at all the significance of what we did," Tinker, who was only a 13-year-old junior high student at the time of her suspension, told ABCNews.com. "But it didn't feel fair, and after talking to Joe [Frederick], he felt the same way."

Frederick was suspended for 15 days for his actions. The parade itself was not on school grounds, but Morse's lawyers argue the event was like a school-sanctioned field trip -- students were dismissed from classes, and the band and cheerleaders entertained.

All agree that Frederick was a rabble-rouser. The school had previously called police when he refused to leave a common area. The next day, he was disciplined after he remained seated during the Pledge of Allegiance.

"I never professed to be a saint," Frederick, now 23 and teaching English in China, told reporters at an ACLU teleconference.

The ACLU claims Frederick was acting independently of the school, and at least one of his cohorts was a nonstudent. And, say his lawyers, even if his message was construed as pro-marijuana, that issue had been a subject of legitimate political debate in Alaska for years.

The case was first heard in federal district court, which relied on the 1988 ruling in Hazelwood v. Kulhmeier to uphold the school's position that it had a right to censor expression if the decision was "reasonably related to legitimate pedagogical concerns."

But the 9th Circuit Appellate Court fell back on the 1969 Tinker ruling that forbade schools from punishing speech with which they disagreed. The Court also held Morse personally liable for her actions.

Morse's brief argues the ruling undermines "the vital task of teachers, administrators and volunteer school board members in attending holistically to the needs of millions of students entrusted every school day to their charge."

"We think it's a draconian and punitive measure," said Francisco Negron, lawyer for the National Association of School Boards. "They are holding Morse responsible for professional duties when she was acting to uphold the educational mission of the school."

The legal team will also ask the Court to review its interpretation of school sponsorship in light of the Internet.

"In this era of instant communication, it's quite a challenge for principals to maintain sufficient order and safety to do what they do -- teach," said Negron.

Steve R. Shapiro, legal director at the ACLU, argued Frederick's protest was not at school and is therefore not a case of student free speech. To call it so would "change the architecture for student law," he said.

"They didn't like what he said, and the thought he wanted to convey, and it was censored," said Shapiro. "That would permit schools to censor student speech whenever they chose to and completely unravel the Court's understanding of the last 40 years."

Last year, the Student Press Law Center in Arlington, Va., fielded 1,260 calls for legal advice from high school newspapers, according to Executive Director Mark Goodman.

One call came in January, from student editor Eric Sheforgen, whose St. Francis, Minn., high school principal objected to the publication of a theater department photo of a student tearing up tablecloth bunting that looked like a flag.

Fearing it would anger veterans, the school froze the newspaper's funds and threatened legal action. Students countered with this replacement: "Originally, a photo was to be placed here but was censored by the administration."

"It's not at all democratic or American to silence the voice of students who will become leaders," said Sheforgen, who said students had been responsible for the St. Francis High School Crier editorial content for 30 years.

The principal has invoked the more restrictive Hazelwood ruling, insisting that Sheforgen remove the paper's editorial guidelines, declaring it is "an open forum for student expression."

In a standoff between the editor and principal, the Crier has not published in two months.

"A lot of people don't realize how dramatically Hazelwood changed the landscape for student expression," said Goodman. "You look at a lot of high school journalism programs today, and what you see is more akin to journalism as it is practiced in China than in the U.S."

Lawyers in the Frederick case said most schools are willing to work with students before sanctioning outright censorship. They say Frederick could have avoided suspension when Morse asked him to meet in her office after the parade, but he failed to show up.

Mary Beth Tinker, whose black armband now sits behind glass in the First Amendment Museum in Chicago, insists Morse v. Frederick is more than a referendum on drugs.

"Research has shown that what keeps kids healthy and in school is an atmosphere of democracy and involvement," said Tinker, who now visits high schools to talk to students about her own Supreme Court challenge.

"Columbine started a wave of feeling that kids needed to be controlled and they were somehow a dangerous group of people to be feared," Tinker said. "Kids need to be able to express themselves because in a democracy, the ones who are affected should have a voice."

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