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Supreme Court Further Defines Restricted Speech in Public Schools

- by Brian S. Batterton
Legal & Liability Risk Management Institute | School Resources & Training Institute

On July 25, 2007, the United States Supreme Court decided Morse, et al., v. Frederick and further defined to what extent school administrators may restrict speech in public schools and at public school sanctioned events.i  This case began when the Juneau-Douglas High School in Salt Lake City, Utah decided to  allow its students to participate in the Olympic Torch Relay as it passed in front of the school.  The principal was sanctioned this activity as an approved social event or class trip.  Students were allowed to observe the relay from either side of the street in front of the school and teachers and school administrators monitored the student’s actions. 

Frederick, a senior at Juneau-Douglas High School, arrived late to the event and joined his friends.  Together, as the torch passed by, Frederick and his friends unfurled a 14 foot banner that read “BONG HITS 4 JESUS.”  The banner was clearly readable by other students.

The principal, Ms. Morse, crossed the street and instructed Frederick and his friends to take the banner down.  Frederick refused and the principal confiscated the banner.  She then sent him to the office and subsequently suspended him for 10 days. 

The principal’s reasoning in ordering the banner taken down was because she believed it promoted illegal drug use in violation of school board policy.  Specifically, the policy states that the board “prohibits any assembly or public expression that ...advocates the use of substances that are illegal to minors...”  Additionally, another school board policy makes all school board policies applicable off campus, at school sanctioned or approved events.

Frederick appealed his suspension and the school superintendent found in favor of the principal.  He reasoned that the “common-sense” meaning of “bong hits” refers to smoking marijuana.  As such, the student’s speech was potentially disruptive to the event and in contradiction with the school educational mission to educate students about the dangers of illegal drug use.

Frederick then sued Morse and the school board under 42 U.S.C. § 1983 for violating his First Amendment right to free speech.  The district court ruled for Morse and the school board and granted them summary judgment holding that the principal and board did not violate Frederick’s rights.  However, the Ninth Circuit Court of Appeals reversed the district court.  The Ninth Circuit reasoned that, although the banner did express a sentiment about illegal drug use, the school board failed to demonstrate that the banner posed a “risk of substantial disruption” to the school.  Further, the court reasoned that the principal should have known she was violating Frederick’s rights and was, therefore, not entitled to qualified immunity.  The principal and the school board appealed to the United States Supreme Court to determine if Frederick’s First Amendment rights were violated.

To determine whether this principal and school board violated Frederick’s rights, court first had to determine whether this was a “school speech” case.  The court came to the conclusion that the Torch Relay was a “school event.”  It was sanctioned by the principal as an approved school event and a board policy applied school rules to school sanctioned events.  Therefore, this case will be viewed as a school speech case.

Next, the court came to the conclusion that, although Frederick dismissed the language on the banner as “nonsense meant to attract television cameras,” the phrase BONG HITS 4 JESUS appeared to advocate or celebrate illegal drug use. 

With the two preliminary issues settled, the court set forth to decide the primary issue this case: whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.

To answer the above question, the court examined three other U.S. Supreme Court decisions.  First, in Tinker v. Des Moines Independent Community School District, students wore armbands in an effort to express their disagreement with the Vietnam War.ii  The school prohibited this demonstration and the Supreme Court held that “student expression may not be suppressed unless school officials reasonably conclude that it will ‘materially and substantially disrupt the work and discipline of the school.’”iii

Next, the court looked at Bethel School District No. 403 v. Fraser, in which a student was suspended after he delivered a speech before a high school assembly in which he used “an elaborate, graphic, and explicit sexual metaphor.”iv  The Supreme Court held that the school acted within its rights and authority in disciplining Fraser for his offensive, lewd and indecent speech.  The court reasoned that school boards must have the authority to determine what type of speech, in the school or classroom setting, is inappropriate.    Thus, what is acceptable in a non-school setting may not be acceptable in a school setting.  The court in Fraser, apparently did not apply the Tinker analysis of whether the speech would cause a “substantial disruption.”  Thus, the court established that the analysis in Tinker is not absolute. 

The last school speech case that court examined was the Hazelwood School District v. Kuhlmeier, in which two students sued the school district for refusing to publish two articles in the high school newspaper.v  The Supreme Court held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”vi  More relevant to the case at hand, was the principle that schools can regulate some speech even though the government would not be able to regulate the same speech outside of the school.vii 

While not a school speech case, the Supreme Court also looked at Vernonia Sch. Dist. v. Acton, in which the court held that, while students do not shed their rights at the schoolhouse gate, Fourth Amendment rights are analyzed different in school than they are outside of school.viii  Additionally, this case illustrated the important and compelling need to deter drug use by students.ix 

The Supreme Court then reasoned that deterring drug use is part of a schools function.  They have held this in various cases and Congress has stated the same in Safe and Drug-Free School and Communities Act of 1994.

In light of the above, the Supreme Court, in Morse, held that “the special characteristics of the school environment and the governmental interest in stopping student drug use...allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.”x  Thus, the court reversed the Ninth Circuit in favor of the principal and the school board because their conduct did not violate Frederick’s First Amendment rights.


i 127 S. Ct. 2618 (2007)

ii 393 U.S. 503 (1969)

iii Morse, 127 S. Ct. at 2626 (quoting Tinker, 393 U.S. at 513)

iv 478 U.S. 675, 678 (1986)

v 484 U.S. 260 ((1988)

vi 273

vii 266

viii 515 U.S. 646 (1995)

ix Id.

x Morse, 127 S. Ct. at 2629


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