Dear Superintendents and Administrators:
The United States Supreme Court issued a decision today regarding student’s First Amendment rights.
In Morse v. Frederick, the principal decided to permit staff and students to participate in the Olympic Torch Relay as an approved school-sanctioned event. The principal suspended a student after he displayed a banner stating “BONG HiTS 4 JESUS” while the Olympic Torch Relay passed in front of high school. The student filed suit under 42 U.S.C. Section 1983 alleging that the school board and principal violated his First Amendment rights. The Ninth Circuit Court of Appeals held that the student’s First Amendment rights were violated, and the principal was NOT entitled to qualified immunity. The Supreme Court reversed the Ninth Circuit Court of Appeals.
The principal in this case believed the “reference to a ‘bong hit’ would be widely understood by the high school students and others as referring to smoking marijuana.” She further believed that “display of the banner would be construed by students, district personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use” in violation of school policy. The Supreme Court agreed with the principal.
The question before the Supreme Court was whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Under the Tinker v. Des Moines Independent Community School District case, student expression cannot be suppressed unless the speech will “materially and substantially disrupt the work and discipline of the school.” In the Bethel School District No. 403 v. Fraser case, the Supreme Court upheld the suspension of a student who delivered a high school assembly speech employing an “elaborate, graphic and explicit sexual metaphor.” In the Fraser case, the Court found there was no disruption, but the school district was within its authority to impose sanctions upon the student in response to his offensively lewd and indecent speech.
The Supreme Court has in the last few years empowered school districts to drug test students in extracurricular activities. The Supreme Court has recognized that deterring drug use by schoolchildren is an “important — indeed, perhaps compelling” interest and the problem continues today. The justices understand the difficult job that school principals face. As a result, the Supreme Court ultimately concluded that the First Amendment does not protect speech at school-sponsored events that promotes illegal drug use.
In this case, the Court created another exception to the Tinker decision. Without overruling Tinker, the Supreme Court continues to distance itself from the Tinker decision. In fact, Justice Thomas would like to dispense with Tinker altogether. The Court continues to restrict student’s constitutional rights at school-sponsored events. It will be interesting to see how this case is interpreted in future free speech cases.
This case is an important victory for school employees around the country. Had the Supreme Court not reversed the Ninth Circuit Court of Appeals, then the principal would have been personally liable for disciplining a student who promoted illegal drug use at a school-sponsored activity.
If you have specific questions regarding this case or any other legal issue, please feel free to give me a call. This legal update and others can be found at our website.