Teacher 4 Free Speech
By Jane Weinkrantz
Unless I am mistaken, the right to free speech, even really stupid speech is still guaranteed under the First Amendment. However, those of us who want to be irreverent, disrespectful or just plain silly should watch Joseph Frederickís case as the Supreme Court decides what should have been done about the teen-ager who unfurled a banner that read "BONG HiTS 4 JESUS" during the 2002 Olympic torch parade.
What happened was this: In winter of 2002, the students of Juneau-Douglas High School were permitted to leave school grounds so they could watch the Olympic torch parade. Although teachers were present, cheerleaders cheered and the pep band played, it was not a field trip and students have signed affidavits, stating that they were not asked to fill out permission slips or follow any of the guidelines that would usually characterize a school-sponsored event. Eighteen-year-old Joseph Frederick had not yet reported for school that day because his car was stuck in some snow. However, he did make it to the Olympic torch procession on Glacier Avenue across the street.. When the TV cameras commenced coverage, Frederick and other students revealed a 14 foot long banner that read, "BONG HiTS 4 JESUS." The long arm of school discipline---in the form of principal Deborah Morseís arm actually ---took the banner away, crumpled it and suspended Frederick for ten days. The suspension started at five days, but when Frederick quoted Thomas Jefferson at her, Morse upped the ante to ten days. (Frederick also states that an assistant principal told him that the Bill of Rights didnít count until you graduated.) Although Frederick said he should not have been suspended because he was exercising his right to free speech, the Juneau school board disagreed, claiming that Frederickís banner weakened the school districtís continued anti-drug message. He appealed the suspension on the administrative level and lost.
Fast forward to 2007. Joseph Frederick sued Morse and the Juneau school district, lost, appealed and won. Along the way, Frederickís attorney offered the district a deal: They would drop the case if the Juneau school district brought in a panel to discuss free speech. The district declined. When the United States Court of Appeals sided with Frederick, the case was brought before the Supreme Court and the Bush administration joined the side of the school district. According to an editorial in The New York Times, the Bush administration has supported the school district "in arguing that schools have broad authority to limit talk about drugs because of the importance of keeping drugs away from young people." However, I wonder if Frederick would have been similarly disciplined if his banner had simply read, "Legalize marijuana." Would that not have been a political opinion to which he was entitled? Would the Juneau Board of Ed. have felt comfortable silencing that speech for the same reason?
On the other hand, suppose Frederickís banner had referenced the Bible verse "John 3:16" ("For God so loved the worldÖ"), something we see displayed fairly frequently at sporting events? Would Morse have come running over to rip it out of his hands and crumple it, worried that he was violating the separation of church and state? I doubt it.
Suppose Frederick had expressed the same sentiment by wearing a BONG HiTS 4 JESUS button on his lapel or knapsack off school property? Would Morse have suspended him then? Unlikely. So is free speech an issue where size does matter?
No, actually, Joseph Frederick is being disciplined for juxtaposing Jesus and bongs, for being a smartass and wanting to be on television. He thought he had formulated an airtight plan for getting attention for being clever and rebellious. How unusual for a high school student. How wrong he was. How ironic that his principal was embarrassed about a drug-related banner unfurled during a celebration of the 2002 Olympics, a competition where two skiers were stripped of their medals for doping and where substance abuse is so prevalent that all competitors must be drug tested to keep it from turning into an athletic Woodstock.
Now, as well as whatever immediate fame he gained around Juneau-Douglas High---or high for that matter---, he has the unsolicited attention of former solicitor general Kenneth Starr, who is arguing the case pro bono for the school district before the Supreme Court.
Starr framed the case as drug-related, "Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation," he told the Court. Frederick claims the phrase "BONG HiTS 4 JESUS" was not meant to advocate drug use, but was just a nonsensical slogan intended to attract the attention of TV cameras. The US Court of Appeals determined to proceed as though Frederickís message was marijuana-positive, in spite of his claims to the contrary, and given the "Hi" in "HiTS", they were probably right. But thatís not the point. And thatís how they ruled.
According to the 1969 case, Tinker vs. Des Moines School District, only speech that disrupts school activities can be suppressed. In the Appeals Court opinion, which one can read at www.ca9.uscourts.gov/ca9/newopinions.nsf/11BBADA028A095D58825712D00016761/$file/0335701.pdf
Principal Morse admits that the banner was not disruptive. She crumpled it up because she believed it was advocating drug use. Now, Starrís argument is that student speech that undermines a schoolís anti-drug position should be suppressed, whether it is disruptive or not. Some of the Justices found the idea of schools choosing what speech to suppress problematic.
"The problem," said Chief Justice John Roberts, "is that school boards these days take it upon themselves to broaden their mission well beyond Ö illegal substances. Starr claimed the ruling could only apply to drugs. Overall, Roberts, who was once Starrís deputy in the Solicitor General office, seemed to support much of what his old boss had to say, "Why is it that the classroom ought to be a forum for the political debate simply because the students want to put that on their agenda?" Roberts queried. (Letís not forget that this is a case about what took place on a sidewalk, not in a classroom.)
Justice David Souter wasnít buying. He asked, "I can understand if they unfurled the banner in a classroom that it would be disruptive," but what did it disrupt on the sidewalk? Ö It sounds like just a kid's provocative statement to me."
Justice Anthony Kennedy said Frederick's sign "was completely disruptive of the message Ö the school wanted to promote Ö completely disruptive of the school's image that they wanted to portray in sponsoring the Olympics."
Are Starr and Kennedy regarding school as an exercise in public relations? Is it now the studentís job to uphold whatever image a district is trying to promote? Do students now have to be onboard with every message their school wants to convey? If a kid canít express a message that contradicts the schoolís agenda, does that mean that a student who disagrees with a recruiter being allowed to visit their school canít say so? Does it mean that a student who feels "abstinence only" programs are not enough canít discuss condoms? Will schools, in general, take on the "if youíre not with us, youíre against us" atmosphere that seems to be pervading our country during these last two presidential terms? And what about the fact that Frederick was off-campus to begin with? If Starrís argument holds, how much distance must you put between yourself and your school before you regain your free speech?
Letís not forget Principal Morse in all this. Just as Frederick says he didnít mean to imply a pro-drug message and I donít believe him, I donít believe Morseís motivation was protecting students from pro-drug propaganda. An equally plausible motive is that she was doing a little CYA. Apparently, she had released a high school full of kids to watch a parade, creating an event that she ---in hindsight---wanted managed like a field trip, without assigning supervision, getting parental permission or doing anything to create a system of parameters and accountability in case of a problem. Without an organized plan for where students should stand and which teachers should watch them, she left the welfare of the students to chance. Morse did not take ownership of the event on behalf of the school. What would she have done if there was an accident, a fire or terrorist attack? What if a student just had a really bad asthma attack? We have to assume that if Morse did not plan for any emergencies, it was because she viewed the parade as a non-school event that was outside of her scope. So when that banner was unfurled and the cameras zoomed in on it, of course she was embarrassed. Her lack of leadership skills was now painfully public. So, she panicked, crumpled the banner up and suspended the kid who embarrassed her. Human behavior perhaps ----but not behavior the Supreme Court should encourage. Incidentally, Deborah Morse is no longer listed as principal of Juneau-Davis High School.
While the National School Boards Association is siding with the district and claiming that schools should have the power to censor speech about guns, homosexuality, drugs and abortion, Frederick has found some support in unusual places. Many right-wing religious groups fear that if he loses, students will lose the right to discuss religious beliefs. The anti-gay, anti-choice, ultra-right Alliance Defense Fund is also supporting Frederick.
Iím not saying Joseph Frederick made a brilliant choice that day. If he were my son, I would have wanted to know what he meant by that message and if he were drug-involved. I might have been annoyed at him for being an attention-seeking, smart aleck kid who was late to school. But, in the end, thatís all he was. Letís hope the Supreme Court sees it the same way. The case should be decided by June.
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