Education Law Publications Duff, White & Turner, LLC Attorneys Columbia South Carolina

Earlier this summer, the U.S. Supreme Court issued an opinion in an important case dealing with the free speech rights of students in the public school setting. In the case of Morse, et al. v. Frederick, referred to as the "Bong Hits 4 Jesus" case, the Court confirmed that school officials may prohibit student speech at school-sponsored events when the speech would reasonably be interpreted as promoting the use of unlawful drugs.

The Morse case arose out of an incident that occurred on January 24, 2002, when the Olympic Torch Relay passed by Juneau-Douglas High School (School) in Juneau, Alaska, on its way to the Winter Games in Salt Lake City, Utah. In honor of the event, the School principal, Deborah Morse (Morse), allowed students, under faculty supervision, to exit the building and watch the Relay from either side of the street in front of the School. Joseph Frederick (Frederick), a student at the School, arrived late that day in time to join a group of other students assembled to watch the Relay across the street from the School. As the Relay passed by, Frederick and several other students unfurled a 14-foot long banner which read "BONG HITS 4 JESUS." When Morse saw the banner, she recognized "bong hits" as a slang term related to smoking marijuana and instructed the students to take the banner down. Frederick refused. Morse confiscated the banner and suspended Frederick for 10 days, based on district policies prohibiting messages at school events that advocate unlawful drug use. Frederick appealed to the school district superintendent, as well as the school board (Board), both of which upheld the suspension.

Frederick then brought suit against Morse, in her individual capacity, as well as against the Board, alleging that his right to freedom of speech under the First Amendment to the U.S. Constitution had been violated. Frederick argued that Morse did not have the authority to discipline him for something that occurred when he was not "at school." A federal district court rejected the argument that Frederick was not "at school" and ruled in favor of Morse and the Board. Frederick successfully appealed the lower court decision to the Ninth Circuit Court of Appeals, which agreed that Frederick's banner was displayed at a school-sponsored event and also that the banner conveyed a pro-drug message. The court concluded, however, that Morse had failed to demonstrate that exhibiting the banner threatened a "substantial disruption" at the School. The court also found that Morse could be held personally liable because a reasonable principal under the same circumstances would have recognized that her actions violated the First Amendment.

Morse and the Board appealed to the U.S. Supreme Court. In a split decision, the Court also rejected Frederick's argument that his location across the street from the School limited Morse's authority to discipline him for failing to remove the banner. The Court concluded that Frederick "cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school." The Court also agreed that Morse reasonably believed that Frederick's banner would be interpreted as promoting illegal drug use, especially by the many high school students present. The Court then addressed the question of whether a principal may restrict student speech at a school event where the speech is reasonably viewed as promoting illegal drug use.

To answer this question, the Court first considered the case of Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court decision involving high school students prohibited from wearing armbands to school in protest of the Vietnam War. In Tinker, the Court ruled that wearing the armbands as a political expression could not be prohibited unless school officials had reasonably concluded that the expression would "materially and substantially disrupt the work and discipline of the school." The Court also reviewed the 1986 Supreme Court case of Bethel School District No. 403 v. Fraser, in which the Court upheld the suspension of a student who used a lewd and explicit sexual metaphor during a high school assembly speech. The Court held in Fraser that schools have the authority to determine what manner of speech is appropriate at school, and that the Tinker "material disruption" test need not be applied in every case involving student expression. Applying these holdings to the situation in Morse, the Court determined that schools may impose reasonable limitations on student speech when the speech would likely be regarded as encouraging illegal drug use. Finally, although the Court was split in its overall decision, all nine justices agreed that under the facts of the case, Morse should not be held personally liable to Frederick.

Just days after the "Bong Hits" decision was published, the U.S. Supreme Court declined to hear a school district's appeal in the case of Marineau v. Guiles. That case involved a Vermont seventh-grader, Zachary Guiles (Guiles), who wore a t-shirt to school with images of cocaine, a martini glass, and President Bush portrayed as a chicken. Comments on the t-shirt linked the images to the President's personal behavior and called into question his leadership abilities. Guiles was suspended for violating the school's dress code, which prohibited clothing that promoted drugs or alcohol. Following his suspension, Guiles returned to school wearing the offending t-shirt, but with duct tape covering the cocaine and the martini glass images. Guiles also sued the district, however, alleging violations of his First Amendment right to freedom of expression. Although the lower court upheld the district's authority to require concealment of the images, the Second Circuit Court of Appeals overturned that decision. The Court of Appeals reasoned that the images were part of a political message which, overall, should not reasonably be perceived as promoting drug or alcohol use.

Although the decision in Morse is limited to a school district's authority to restrict student speech that promotes drug use, the case affirms that the "substantial disruption" test of Tinker is not required in all student speech cases and that the Morse holding is likely to be applicable to any student speech at school or a school-sponsored event that promotes illegal activity of any kind. In line with the decision in Marineau, however, school administrators may not have the authority to restrict student speech that contains a political message simply because the message contains references to illegal activities, unless the overall message would reasonably be perceived as promoting illegal activity. Should you have any questions about your district's policies or practices related to restrictions on student expression, please feel free to contact this firm.

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