WASHINGTON (BP)–The U.S. Supreme Court heard oral arguments March 19 on the free speech rights of public high school students in a case that drew participation by Christian religious liberty advocates.
The justices constantly questioned the views of lawyers for an Alaska school board and a student whose banner appeared to endorse illegal drug use, as well as a government attorney who argued in support of school officials.
The case, Morse v. Frederick, involved the 2002 actions of Joseph Frederick, a student at Juneau-Douglas High School. Students were released from school to observe the relay of the torch on the way to the Winter Olympics in Salt Lake City. As the torch passed, Frederick and others unfurled a 14-foot banner that said: “Bong Hits for Jesus.”
Principal Deborah Morse, concerned about the reference to marijuana use in the words “bong hits,” tore down the sign and suspended Frederick for 10 days. A federal judge ruled in the school’s favor, but the Ninth Circuit Court of Appeals overturned that judgment.
Kenneth W. Starr, a former U.S. solicitor general and independent counsel, represented the school board and the principal.
Several Christian organizations that defend religious freedom, however, filed friend-of-the-court briefs on behalf of the student. They did so out of concern that a ruling in favor of the school’s right to restrict speech could harm the religious and free-expression rights of Christians and other religious students in the future.
Among the organizations filing briefs in support of Frederick were Alliance Defense Fund, American Center for Law and Justice, Christian Legal Society and The Rutherford Institute.
In explaining ACLJ’s decision to file a brief, chief counsel Jay Sekulow said in a written statement, “While we strongly disagree with the student’s message in this case, the fact is that unless student speech is protected, a message considered appropriate today could be deemed offensive tomorrow. We want to ensure that students who hold pro-life and pro-family positions will continue to be able to present those messages without censorship.”
CLS said in a news release it “has no sympathy for Frederick’s tasteless banner and his juvenile stunt,” but if the Supreme Court bestows “broad power on public school officials, they would almost certainly employ that power to suppress controversial religious expression, including the right to associate around shared convictions and moral standards.”
The justices expressed skepticism at the arguments from both sides.
Edwin Kneedler, deputy solicitor general for the Department of Justice, began to argue the court had ruled a school “does not have to tolerate a message that is inconsistent” with its educational mission, but Associate Justice Samuel Alito interrupted.
“I find that a very, a very disturbing argument, because schools have said and they can define their education mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner … of getting rid of speech that’s inconsistent with educational missions,” Alito said.
The justices and lawyers debated how a 1969 opinion, Tinker v. Des Moines School District, should be applied in this case. In that ruling, the high court famously declared, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Chief Justice John Roberts wondered aloud how broadly the court should interpret Tinker, saying, “I mean, why is it that the classroom ought to be a forum for political debate simply because the students want to put that on their agenda? Presumably the teacher’s agenda is a little bit different … and just because political speech is on the student’s agenda, I’m not sure that it makes sense to read Tinker so broadly as to include protection of … that speech.”
Associate Justice Anthony Kennedy seemed particularly skeptical of the assertion by Douglas Mertz, Frederick’s lawyer, that principal Deborah Morse did not have the right to control students’ actions, even though they were across the street from school property.
Roberts and Kennedy expressed particular dismay to Mertz that his client was seeking damages from Morse.
Afterward, Walter Weber, the ACLJ’s senior litigation counsel, called the case “very messy factually and legally.”
“I suspect the court may reverse on the First Amendment merits on narrow grounds, i.e., by ruling that advocacy of unlawful activity (drug use) may be prohibited in the school context,” Weber wrote for the World magazine weblog. “Or the court may send the case back for further factual determinations.”
A transcript of the oral arguments is available online at www.supremecourtus.gov.
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Compiled by Tom Strode.
