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March 22, 2007
More on Bong Hits 4 JesusAs we promised (well, OK, a day late), here are some more impressions from the Supreme Court arguments in the Morse v. Frederick case heard Monday. You’ve probably read or heard some news accounts, as well as some of the editorials, but you can count on BoardBuzz to give you the rest of the story.
Look a little closer: hard facts
First, the facts of the case are messier than most press accounts acknowledge. For one thing, many of the justices were clearly skeptical of the notion that the Olympic torch relay where the incident happened was not a school event, a question we raised here. Justice Kenendy asked whether if students at the event had started throwing bottles, the teachers and administrators should have thrown up their hands and said, “Oh well, not our responsibility.” For our part, BoardBuzz is sure if a kid had been injured, it never would have occurred to anyone to criticize school officials for poor supervision, right?
In addition, principal Deborah Morse has been subjected to characterizations and aspersions unworthy of some of the reporters and commentators who have been repeating them. In questioning the student’s lawyer, Justice Kennedy was downright angry about what she’s been through. BoardBuzz notes, for one thing, that it is disputed whether she ever “ripped down” the Bong Hits 4 Jesus banner as many recount. And Justice Breyer zeroed in on the fact that the superintendent had made clear in upholding the student’s suspension that even if the banner was protected speech, the suspension was warranted and had more to do with the kid’s lippy attitude—the “I was further victimized for solemnly invoking Thomas Jefferson” version of events, by the way, is disputed as well, but it’s understandably irresistible to reporters.
Look a little closer: hard law
Second, anyone who actually heard the justices’ questions would come away realizing the law, too, makes this case a much harder call than you’d ever guess from media debates. Justice Breyer summed up the dilemma best when he essentially said he was worried that a win by the student might open Pandora’s box to all kinds of limit-testing and lawsuits, but a school board victory might result in suppression of lots of student speech.
It’s true some justices are troubled by the idea of giving school officials a “blank check” to define any speech they dislike as contrary to the school’s educational mission. Justices Souter and Alito worried about this, and Chief Justice Roberts expressed concern about school boards tending to define their mission more and more broadly. BoardBuzz can only wonder whether any of the countless advocacy groups, politicians, and lawyers constantly dreaming up more good ways for schools to assume responsibility for solving society’s problems on the cheap will take a moment to look in the mirror before pointing accusatory fingers at school boards.
More importantly, as NSBA’s brief to the Court pointed out, this argument about giving school districts a blank check is nothing new. In the last two big Supreme Court cases on student speech, that same sky-is-falling hue and cry was raised. The Court didn’t buy it. But neither, we should note, did the Court give school officials the much-dreaded blank check. In Hazelwood v. Kuhlmeier, a 1988 decision on student journalism that is loathed by reporters, the Court didn’t abdicate its responsibility for the Bill of Rights and give principals free rein. Instead, it examined each and every disputed decision by the school officials in the case and decided each was reasonable under the circumstances. Free speech in the nation’s schools is alive and well, thank you very much.
Look a little closer: hopeful signs
BoardBuzz hopes readers and the Court alike will reject the false choice. We take consolation from the fact that the justices, if anything, appeared even more doubtful about the argument that unless there’s some kind of major disruption, school officials have nothing to say about any student expression. To be sure, there are some examples of school officials who simply react a little too hastily to anything insulting or controversial. But generally when you look a little closer into these cases you find there’s more to them. Surely we can protect student speech without further hyper-legalizing all things educational and making a constitutional crisis out of every silly thing kids do.
One positive note: The justices were decidedly hostile to the notion that Ms. Morse should be subject to personal liability for her judgment call, however the case turns out. BoardBuzz readers will recall that this issue was the thing we found most astonishing about the Ninth Circuit’s ruling in the case. Justice Souter said it best when he pointed out, after the Court and attorneys had spent 50 minutes exploring the finer points of all this case law and wrestling with hypothetical fact variations, that perhaps the law might not be quite so clear cut for a school principal, either.
The news media and commentariat might do with a dose of such humility and nuance. Hats off to Ed Week's Andrew Trotter, whose account is here.
The Bottom Line
This case is yet another example where the more comfortably removed one is from day-to-day responsibility for large numbers of children, the simpler the issues appear. Freedom-of-expression and liberty vs. authoritarianism and censorship, right? That easy view, of course, resonates instinctively with Americans—especially journalists. In the current political climate, BoardBuzz also suspects there’s more than a little guilt-by-association at play in the fact that the Bush administration and Ken Starr have sided with the principal.
Perhaps the most delicious aspect of this whole debate is this irony: So many people who are buying into the conventional wisdom about this case are doing so with such sanctimony about critical thinking and questioning authority.
Posted March 22, 2007 9:35 PM | School Law
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Comments(2)
Posted by: JimMc on March 27, 2007 12:19 PM
What's worrisome is something that you referred to: defining the scope of a school's limit of influence or control.
This student held up a banner across the street from the school. What if a private party bought an ad with a similar message on a billboard across the street on private property? What recourse does a school have? Or does that come under local laws controlling alcohol ads, etc.?
In the day and age of the Internet this could have broader implications too. What if a private party sets up a "disruptive" website with a URL (e.g. www.whatever.com address) which is so similar to the school's web address that to most people and to most search engines, it is virtually "next door"? What recourse, if any, does a school district have. SHOULD it have any?
Posted by: Eric on April 3, 2007 2:03 PM
If the incident had truly involved a non-student private citizen, the school wouldn't have acted.
If a group of 30-year-olds had held up the banner on the sidewalk, even if they were surrounded by students, the school wouldn't have acted.
It was plausible for the school to treat Frederick as a student (because he was a student) at a school-sponsored event (which occurred partly off-campus.)
Students were allowed to leave class in second period and congregate outside, on school grounds and across the street, to watch the relay. The band was playing. The cheerleaders were out. Teachers were monitoring.
The viewing of the relay by students was clearly a school-sponsored event. Frederick, a student, was standing among students, and students helped Frederick hold up the banner. Thus it was a school concern.
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