March 20, 2007
By Ken Krayeske • Hartford • 3:00 PM EST
If wisdom prevails, the U.S. Supreme Court will not purchase the fallacy peddled by Kenneth W. Starr and the federal government that students have no right in schools to challenge the failed policy of drug prohibition.
Starr argued in front of the nine justices of the august Supreme Court Monday, March 19 that the educational mission of teaching students the dangers about illegal drugs outweighed a student's right to exercise the First Amendment.
As part of my law school education, and for the loyal readers of this column, I obtained a press pass and secured a front row seat in the hallowed Court chambers for the oral arguments of Frederick v. Morse.
On Jan. 24, 2002, the Olympic Torch relay, sponsored by Coca-Cola, passed through Juneau, Alaska. That day high school senior and American hero Joseph Frederick, then 18, picked a First Amendment fight.
Frustrated by the suppression of his speech rights throughout the year, he and a friend made a 14-foot banner with the Dadaist phrase “Bong Hits 4 Jesus.” Hearing the serious Supreme Court justices utter this absurdism no less than 10 times was a pleasure I shall savor forever.
Anyways, Frederick was late for school because his car got stuck in the snow. But he managed to make it across the street from school before the torch passed by. And the moment when the cameras started to roll, he and his buddies unfurled the banner.
Deborah Morse, the principal at Juneau-Douglas High School, saw it, and in the heat of the moment, she determined that the sign could damage the image of the school, especially on national television.
Nevermind that students on school grounds threw snowballs and hurled the plastic soda bottles provided by the corporate sponsor, and these students escaped punishment. Nevermind that Coca-Cola, a private, for-profit entity granted a liberal license to exist as a fictional human being by the very same Supreme Court in 1886, has more rights of free speech on school grounds than students.
Morse ripped down the banner, and suspended Frederick for 10 days. He appealed to the Superintendent, who reduced it to eight. He sued in federal district court and lost. He appealed to the mighty Ninth Circuit, and won.
The Supreme Court granted certiorari. The Supremes haven't heard a pure student speech case since Hazelwood in 1988, when it crushed student expression by allowing school administrators to censor speech if the school paid for it or if that speech bore the imprimatur of the school.
Hazelwood modified the foundational student speech decision, 1969's Tinker v. Des Moines. Quakers John and Marybeth Tinker wore black armbands to school in 1965 to protest the Vietnam War. School officials punished them, and they sued.
A wise Court recognized students don't have the same speech rights as adults, but declared that students do not check their rights to speech at the door. Students can say what they choose so long as they don't disrupt classroom activities.
Attorney Starr, who is now Dean of the Pepperdine University School of Law and formerly persecuted the Clintons, claimed that "classroom activities" is language broad enough to encompass a school's educational mission (i.e. – it's image).
And when a school's educational mission is to teach about the dangers of illegal drug and alcohol abuse, any speech which contradicts that message – even speech that which occurs across the street from school – is subject to unbending regulation.
Frederick's attorney Douglas K. Mertz of Juneau maintained that Morse's discipline so compromised his client's right to free speech that she had to pay out of her own pocket. Chief Justice John Roberts hammered on that notion a few times, and unfortunately Mertz seemed overmatched in trying to defend student speech.
The debate raged for 60 minutes – 20 for Starr, 10 for Edwin Kneedler (from the anti-drug faction known as the U.S. Department of Justice) and 30 for Mertz. At the end of the hour, nothing was settled.
The Supremes, who will take their time in making a decision, have not been kind to students before where it comes to drugs, as they have stamped Constitutional approval on drug testing.
If wisdom prevails, the Supreme Court will compromise by nixing Frederick's qualified immunity claim against the principal but protecting Tinker and allowing students to participate in critical thinking and democratic discourse by preserving the right to criticize or mock policies students see as wrong.