Education Law - SchoolNET

Supreme Court Upholds Student Discipline in Latest "Free Speech" Case

The Supreme Court’s recent 6-3 decision in Morse v. Frederick, known as the “Bong Hits 4 Jesus” case, had been widely anticipated by public school districts. Building on its decisions regarding students’ First Amendment rights over the past several decades, the Court reinforced the authority of schools to regulate nonpolitical student speech that undermines the educational mission of the school.

The case arose when a high school senior and his friends in Juneau, Alaska unfurled a banner reading “BONG HiTS 4 JESUS” in front of other students, bystanders, and news cameras, when the principal had permitted students to go outside to watch the Olympic torch pass by the school. The principal insisted that the students take down the banner and everyone but Joseph Frederick complied. The principal then confiscated the banner and subsequently suspended Mr. Frederick for ten days. Mr. Frederick later sued, arguing that his First Amendment rights had been violated.

Chief Justice Roberts, writing for the majority, reaffirmed that students in school do not have the same rights as adults, given the vital and unique mission of public schools. School officials retain broader authority than other state officials to balance student rights with the educational needs of the school, particularly in the context of combating illegal drug use. Although the banner contained a cryptic message--perhaps advocating marijuana use, perhaps just salacious nonsense designed to attract the media’s attention--other students could interpret the message as advocating illegal drug use. Moreover, in removing the banner and disciplining the student, the principal could reasonably have believed that the message violated the school policy against promoting illegal drug use and required an immediate response. Thus, school officials enjoyed qualified immunity against monetary damages, even if they had violated the student’s rights.

In his dissent, Justice Stevens, joined by Justices Ginsburg and Souter, disputed the finding that the banner promoted illegal drug use and thus found school officials had no right to limit the students’ free expression. Even if schools have a compelling interest in deterring illegal drug use, Justice Stevens reasoned they cannot use that interest to restrict speech with either an ambiguous message or a viewpoint that they simply do not like.