Morse v. Frederick: a dubious decision shows a need for judicial restraint by the Supreme Court.

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Morse v. Frederick: a dubious decision shows a need for judicial restraint by the Supreme Court.

In the midst of an increasingly unpopular Vietnam War, the United States Supreme Court handed down its most famous student speech decision, declaring students do not shed their rights at the schoolhouse gate. Although the Supreme Court has never overturned this standard, future decisions have muddled this precedent. The Court's decision in Morse v. Frederick was no exception. In holding that school officials may constitutionally restrict student speech that can be reasonably interpreted as advocating illegal drug use, the Court employed an unclear mode of analysis in delivering a fractured opinion. Additionally, while the Court split on the First Amendment question, further complicating the precedent on the issue, it could have decided the case simply on the doctrine of qualified immunity, which would have left a unanimous decision and demonstrated showing the Court's commitment to judicial restraint.

I. INTRODUCTION

In an attempt to show his commitment to judicial restraint, Judge John Roberts, the nominee to replace the late Chief Justice William Rehnquist, wooed Senate Republicans and Democrats during his confirmation hearings when he compared judges to umpires. (1) Although some considered the hearings as little more than political posturing, (2) Judge Roberts did have a prior record of commitment to judicial restraint, including a concurrence in PDK Laboratories Inc. v. United States D.E.A., (3) where he espoused the cardinal principle of judicial restraint: "[I]f it is not necessary to decide more, it is necessary not to decide more...." (4) Further, Judge Roberts chastised the majority opinion for not following this judicial temperament and instead choosing an "alternative ground of far broader significance, one that precipitates disagreement among us but at the end of the day leads to the same result...." (5) This history of judicial deference along with a flurry of unanimous decisions during the first six months of Chief Justice Roberts's tenure had some ringing the death knell for the fragmented opinions for which the Rehnquist Court was known. (6) By the end of the 2006 Term, this purported harmony and deference had slowly slipped through the fingers of the Court. (7)

Nowhere is this change more dramatically apparent than in the fractured opinion of Morse v. Frederick. (8) In Morse, the majority opinion held that under the First Amendment, a school official may restrict student speech at a school event if that speech is "reasonably viewed as promoting illegal drug use." (9) It is not hard to imagine why the case, which involved a large banner displaying the phrase "BONG HiTS 4 JESUS," received a substantial amount of attention from the press. (10) Nonetheless, very little attention was given to the fact that the Justices unanimously agreed on what was arguably the most important part of the decision: Morse was not liable for damages even if her actions violated the First Amendment. (11)

This note will consider the effect of Morse v. Frederick on First Amendment issues arising out of school speech. (12) It begins by providing the facts and procedure of the case, followed by a more detailed review of the Chief Justice's plurality opinion, the concurring opinions, and the dissent. (13) Additionally, this note will address prior U.S. Supreme Court decisions involving First Amendment issues arising out of school speech, (14) as well as the Court's prior decisions involving qualified immunity. (15) Finally, the analysis will conclude with an examination of the Court's decision, a discussion of the impact Morse will have on future school speech cases, and an explanation of how the decision would have properly been decided unanimously under the doctrine of qualified immunity. (16)

II. FACTS AND PROCEDURE

A. STATEMENT OF THE FACTS THAT GAVE RISE TO MORSE V. FREDERICK

On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. (17) This was the first time in Olympic history that the Olympic Torch Relay visited Alaska, which made it a very important event for both Juneau and the State of Alaska. (18) Because of the magnitude of the event, a television crew followed the Olympic torch through Juneau. (19) Deborah Morse, the principal of Juneau-Douglas High School, reasoned that an event of such meaning would have educational value and decided to permit staff and students to participate in the Torch Relay as an "approved social event or class trip." (20)

Joseph Frederick, a high school senior, was late to school that day. (21) When he arrived, he joined his friends, including one friend who was not in high school, across the street from the school to watch the event. (22) As tends to happen with a group of high school students, not everyone waited patiently. (23) Certain students became rambunctious, throwing things at each other and scuffling with their classmates. (24) "As the torchbearers and camera crews passed by th...

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