'Bong Hits 4 Jesus':
Student Rights & the Supreme Court

By Alan Shapiro

To the Teacher:

Student rights are often an issue in schools, but not every controversy over them lands in the Supreme Court. When one does, it presents an opportunity for students to learn about and discuss the particular case and the Constitution. Though at first glance Morse v. Frederick may seem trivial and unworthy of class examination, it has attracted widespread interest--and not just because of the banner at the center of the dispute, "Bong Hits 4 Jesus." Among those submitting briefs to the Court included such groups as the American Civil Liberties Union, to the Christian Legal Society, the Drug Policy Alliance and the Lambda Legal Defense and Education Fund.

A preliminary exercise aims to provoke interest in student behavior that raises constitutional questions. The first student reading provides basic information on Morse v. Frederick, brief excerpts from the Supreme Court hearing on the case, and some background from Tinker v. Des Moines, a landmark student freedom of speech case. The second reading provides excerpts from the Roberts' Court ruling as well as from minor and major dissenters. Discussion questions and other student activities follow each reading.

A Preliminary Exercise:
Constitutional or Unconstitutional?

Mark with a Y each item you think represents a constitutional right. Mark with an N each item you do not think represents a constitutional right.

1. Students wearing black armbands to protest the Iraq War.

2. Students wearing T-shirts which declare, "Homosexuality is shameful."

3. Students wearing T-shirts which declare, "Homosexuality is a sin! Islam is a lie! Abortion is murder!"

4. Students staging at night in their school a play made up of monologues consisting of reflections from soldiers who have served in Iraq.*

Divide the class into groups of four to six students. Ask each student in each group to state his or her decision on a case and the reason for it--citing a constitutional principle (such as freedom of speech) if possible. Each group should then discuss the case for two or three minutes to see if they can reach a consensus. If they cannot reach consensus within the given time, they should go on to the next case. Ask each group to name one student the discussion leader and another the reporter on the results for each case.

What constitutional principles did students cite for their decisions? How valid were they in each case? What issues and questions are students uncertain about? Why? Use the questionnaire and the student discussion as an introduction to the reading.

Repeat the questionnaire and group discussion after students have completed the reading and discussion outlined below. How, if it all, have student views changed?

*Note to the teacher:

Item #1: This is a slight modification of the issue raised in the Tinker case described in the reading.

Item #2: A California appeals court declared that a ban on such T-shirts was constitutional because the statement on them was "injurious to gay and lesbian students and interfered with their right to learn."

Item #3: An Ohio federal court declared such T-shirts constitutional. Note contradiction of Item #2.

Item #4: Refusing to allow the play to be staged, the principal of Wilton High School in Connecticut said he "was worried that the play might hurt Wilton families 'who had lost loved ones or who had individuals serving as we speak,' and that there was not enough classroom and rehearsal time to ensure it would provide 'a legitimate instructional experience for our students.'" To date, there has not been a court challenge of this decision. (New York Times, 3/24/07)

The Iraq war play prepared by Wilton High School students will be performed in June at The Public Theater in New York City and at other venues which have offered them a platform. A lawyer for the Wilton Board of Education said that the district has "no objections to students privately producing and presenting the play on their own" and has "no interest in interfering with the private activities of students." (New York Times, 4/12/07)

Student Reading 1:
Bong Hits 4 Jesus

The Olympic torch passed through Juneau, Alaska, on January 24, 2002, on its way to Salt Lake City, where the Winter Games were to be held. Juneau-Douglas High School students had permission to go outside to watch the torch go by. One of them, Joseph Frederick, stood across the street from the school but had not yet been to class that day. As the torch parade went by, he and some friends unfurled a banner displaying the words, "Bong Hits 4 Jesus."

High School principal Deborah Morse viewed the words on the banner as drug-related, confiscated it and suspended Frederick from school for five days for promoting illegal substances at a school-sanctioned event. After he refused to name the friends who helped him, she added five more. Aided by the Juneau Civil Liberties Union, Frederick sued the principal for violating his First Amendment right to freedom of speech.

Frederick said he saw the words on a snowboard and thought they were "meaningless and funny." He wanted "to get on television." And "I wasn't trying to say anything about religion, I wasn't trying to say anything about drugs." Later he added that what he did was "most importantly an exercise of my inalienable right to free speech."

A lower court upheld Frederick's suspension, but the San Francisco Ninth Circuit Court of Appeals overturned this decision. It objected to school censorship of "non-disruptive off-campus speech by students during school-authorized activities because the speech [promoted] a social message contrary to one favored by the school." The appeals court ruled that freedom of speech cannot be restricted unless it disrupts school activities.

Principal Deborah Morse and the Juneau school board took the case to the Supreme Court, which heard arguments on March 19, 2007. Morse's lawyer, Kenneth Starr, was asked what Frederick's behavior disrupted. "The educational mission of the school," he responded, for it was "inconsistent with the fundamental message of the schools, which is that the use of illegal drugs is simply verboten."

Supporting the principal, the Bush administration's deputy solicitor general, Edwin Kneedler, said that "schools receiving federal money" must "convey a clear and consistent message" that illegal drug use "is wrong and harmful."

Joseph Frederick's lawyer, Douglas Mertz, disagreed. "This is a case about free speech. It is not a case about drugs." He cited the 1969 landmark Supreme Court ruling in favor of John Tinker and two other students who wore black armbands to schools in Des Moines, Iowa, to protest the Vietnam War on December 16, 1965. The students refused to remove them and were suspended from school until after New Year's Day.

In Tinker v. Des Moines Independent Community School District, the Supreme Court by a 7-2 margin declared that the principal did not show that the students had substantially interfered with or disrupted the school program. In the decision, Justice Abe Fortas wrote that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Public schools "may not be enclaves of totalitarianism." Schools should promote "a robust exchange of ideas."

In the current case, Mertz, the student's attorney, argued that schools promoting an anti-drug perspective must permit students outside of the classroom to present a competing view. "Content neutrality is critical here," he said. Chief Justice John Roberts disagreed. "Where does that notion that our school have to be content neutral" come from? he asked. "I thought we wanted our schools to teach something, including something besides just basic elements, including character formation and not to use drugs."

On the other hand, Justice Samuel Alito Jr. took issue with Edwin Kneedler's comment that a school "does not have to tolerate a message that is inconsistent" with its educational mission. "I find that a very, very disturbing argument," the justice said, "because schools have defined their educational 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."

The Supreme Court will announce its decision later this year.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Supreme Court cases often involve problems of definition. How should Morse v. Frederick be defined? As a student free speech case? As a case bearing on an educational mission to promote the message that illegal drug use is wrong and immoral? Or should it be defined in some other way?

3. An issue in the Morse v. Frederick case, regardless of how you define it, is whether or not Joseph Frederick's action and those of his friends substantially interfered with or disrupted the high school's program. How do you define "interference" and "disruption"? How does your definition bear on the case?

4. Another issue is where Joseph Frederick and his friends were when they unfurled the banner. Since they were across the street from the high school and not on school grounds, should he have been suspended? Why or why not?

5. Frederick claims to have exercised his "inalienable right to free speech." But he also says that the words on his banner were "meaningless and funny." In that case, do you think he has a justifiable claim to freedom of speech rights? Why or why not?

6. Supreme Court decisions often have implications that affect many others besides those involved in the case. For example, among those who have submitted briefs to the Court on Morse v. Frederick are the Christian Legal Society, the Drug Policy Center, the Lambda Legal Defense and Education Fund (a gay and lesbian rights organization) and the American Civil Liberties Union. In each case, what interest do you think these organizations have in making their views known before the Court reaches a decision?

For writing, a roleplay and discussion

You are a Supreme Court justice and have studied the Morse v. Frederick case. To prepare for a discussion of the case with other justices, you must write a concise paper in which you provide:
1) an overview of what you consider to be the chief issue(s)
2) the decision you think is demanded by the Constitution, and
3) your reasoning.

When the justices have completed their papers, divide them into groups of five or six. Each is to read his or her paper to the group. Following a reading, justices might ask clarifying questions. When all papers have been read, justices are to determine by a vote which of them they regard as clearest, most persuasive and constitutionally correct. That paper is to be read to the class.

Following the reading of the papers, students might have a further discussion of issues and vote on the decision they think is most appropriate.

Student Reading 2:
The Supreme Court's majority and dissenting decisions

On June 25, 2007, the Supreme Court ruled 6-3 to overturn the appeals court decision. It rejected Frederick Morse's claim of First Amendment free speech rights and supported Principal Deborah Morse.

Chief Justice John Roberts, in writing for the majority, cited the Tinker case: "Our [the Court's] cases make clear that students do not 'shed their constitutional rights to freedom of speech at the schoolhouse gate.'" But, he added, "At the same time, we have held that the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings" and that the rights of students must be "applied in the light of the special characteristics of the school environment. Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."

The principal's action was reasonable, the chief justice wrote. While the banner might be "gibberish," the principal "had to decide to act--or not act--on the spot." Her decision was that the banner promoted illegal drug use and that "failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use….The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."

Justice Clarence Thomas supported the decision, but went further. In his view, Frederick had no First Amendment rights. "In the light of the history of American public education, it cannot seriously be suggested that the First Amendment 'freedom of speech'" includes "a student's right to speak in public schools."

Justices Anthony Kennedy and Samuel Alito Jr. were also part of the Court majority, but said the decision should be understood as limited to speech advocating drug use, and that the court was not endorsing the Bush administration argument that school officials can censor speech that interferes with a school's "educational mission."

Justice John Paul Stevens, in a dissenting opinion supported by Justices David Souter and Ruth Bader Ginsburg, agreed with the majority that the principal "should not be held liable for pulling down Frederick's banner" because she had a legitimate concern about the portrayal of such student conduct on national TV. But, he added, "In my judgment, the First Amendment protects student speech if the message itself neither violated a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This banner does neither and the Court does serious violence to the First Amendment in upholding…a school's decision to punish Frederick for expressing a view with which it disagreed."

Justice Stevens said the majority opinion distorted the First Amendment by "inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs in a way that someone might consider a "latent pro-drug message." There is, he wrote, "absolutely no evidence" that reference to drug paraphernalia infringed on anyone's rights or "interfered with any of the school's educational programs."

For discussion

1. What questions do students have about the reading? How might they be answered?

2. According to the Roberts' ruling, why is Frederick not entitled to First Amendment rights?

3. According to the Stevens' dissent, why is Frederick entitled to First Amendment rights?

4. Which point of view do you favor? Why?

5. Divide the class into groups of four to six students to discuss and then decide how and why, based on the Morse v. Frederick ruling, the Court would rule on each of the following cases:

• In a history class discussion of the Iraq war, Peter Jones declares that President Bush has violated the constitution by ordering an invasion of Iraq without explicit congressional authority. The school principal is observing the class at the time and when it is over suspends Jones for his anti-patriotic remarks.
  
  
• Rutledge High School has a rule that students may not wear caps and other head coverings in classrooms because doing so is disruptive of the school's educational mission. Arwa Jaradat comes to school one day wearing a hijab, a Muslim headscarf, as an expression of her religious beliefs. The teacher reports this to the principal, who suspends her for violating the school rule and educational mission.
  
  
• During a question-and-answer portion of an assembly program on the dangers of drug use, Tim Russell says, "Drinking alcohol is more dangerous than smoking pot. Just think of how many DWI cases there have been in which drunk drivers killed people. But I don't recall any cases in which marijuana use resulted in fatal accidents. I support legalizing pot." After the assembly, the principal suspends Russell for violating the school's educational mission to prevent illegal drug use.

The groups should select a reporter to summarize for the class its decision in each case and the reasons for it.

For writing

Write a well-developed essay in which you discuss your understanding of the First Amendment's guarantee of freedom of speech. Imagine situations in which you would uphold it absolutely, others in which you would think it reasonable to deny it.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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