Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska's Capital.

Author:Brenner, Samuel
Position::Book review

BONG HITS 4 JESUS: A PERFECT CONSTITUTIONAL STORM IN ALASKA'S CAPITAL. By James C. Foster. Fairbanks: University of Alaska Press. 2010. Pp. ix, 373. $29.95.


con-text, (1) noun

  1. The parts of a discourse that surround a word or passage and can throw light on its meaning;

  2. The interrelated conditions in which something exists or occurs: environment, setting .

    triv-ia, (2) noun

  3. Unimportant matters: trivial facts or details; also singular in construction: a quizzing game involving obscure facts.

    "My academic mantra," writes Professor James C. Foster (3) in the Introduction to BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska's Capital, which examines the history and development of the Supreme Court's decision in Morse v. Frederick, (4) "[is] context, context, context" (p. 2). Foster, a political scientist at the University of Oregon, argues that it is necessary to approach constitutional law "by situating the U.S. Supreme Court's ... doctrinal work within surrounding historical context, shorn of which doctrine is reduced to arid legal rules lacking meaning and significance" (p. 1). He seeks to do so in BONG HiTS 4 JESUS by incorporating interviews with and discussion about the parties, some bystanders, and various judges and

    lawyers who worked on the case throughout its multiyear history. Among his subjects are Douglas Mertz, who represented Juneau high school senior Joseph Frederick from the federal district court in Alaska all the way to the Supreme Court; David Crosby, Principal Deborah Morse's initial attorney; former Solicitor General Kenneth Starr, who, as a partner at Kirkland & Ellis, took up Morse's case after the Court of Appeals for the Ninth Circuit ruled against her; Mary Becker, the former president of the Juneau-Douglas school board; and retired teacher Clay Good, the former president of the Juneau Education Association (the teachers' union) who took the famous picture showing Frederick and other students hoisting the "BONG HiTS 4 JESUS" banner. Foster also traces the litigation from the moment in January of 2002 when the students in Juneau held up their cryptic sign through the district court proceedings, the decision by the Ninth Circuit, the reversal by the Supreme Court, and ultimately the settlement in November of 2008 after a second round of oral arguments at the Ninth Circuit. Explicitly striving to emulate a veritable pantheon of academic role models, including, among others, the sociologist Alan F. Westin, legal scholars Michael Dorf and Peter Irons, historian Richard Polenberg, and, "[his] muse" (p. 3), the famed anthropologist Clifford Geertz, Foster consciously draws upon what he refers to as "a rich variety of legal, political science, anthropological, and literary materials" (p. 3). His goal, he explains, is "to make sense of the origins and consequences of the perfect constitutional storm that engulfed Joseph Frederick, Deborah Morse, and the other 'natives' whose stories shape this book" (p. 3).

    In exploring the context, both doctrinal and sociological or anthropological, in which the Morse litigation was decided, Foster has written a book that is often fascinating, entertaining, erudite, and useful, and that touches on important and continuing questions of law, freedom of speech, student rights, and state power. Particularly interesting is the way in which Foster tracks the litigation, through both briefs and oral argument, through all the levels of judicial analysis. That said, however, in seeking to employ his "rich variety" of materials in telling the Morse story, Foster, who is clearly extremely well versed in both high and popular culture, has written a book that is also often--sometimes maddeningly--frustrating, obscure, or irrelevant. More problematically, while he devotes space to comparing Frederick to Till Eulenspiegel, the fourteenth-century German "merry prankster" who "became legendary in sixteenth-century German Schwankliteratur, or 'fool's literature'" (p. 18), and invoking the film Heathers, (5) in which characters played by Winona Ryder and Christian Slater systematically murder popular students, to describe "vexatious high school social relations" (p. 232 n.42), Foster occasionally omits more useful context or includes legal or historical analysis that is mistaken or even misleading. Unfortunately, Chapter One, in which he sets the scene by recounting Frederick's and Morse's different views of the events of January 24, 2002, but also spends many pages quoting at length the views of film critics about Akira Kurosawa's film masterpiece Rashomon to explain why it is so difficult to say what actually happened, is historically and stylistically problematic. That said, a substantial core of the book, which includes Foster's second, third, and fourth chapters on the Supreme Court's decision in Tinker v. Des Moines Independent Community School District, (6) the Court's gradual move away from recognizing the full constitutional rights of students in public schools and conflation of Fourth Amendment and First Amendment analyses in the school context, and the recent history of the Supreme Court justices, is excellent. Foster's central analysis of the Morse litigation itself, which occupies Chapters Six, Seven, and Eight, is thorough and interesting--though, as in the rest of his work, Foster is continually drawn away from his central points about this case by what he sees as interesting asides into, for example, how amicus briefs have changed since the late 1700s (pp. 113-19) and whether the Supreme Court in the eighteenth and nineteenth centuries issued unanimous rulings (p. 173). Ultimately, this is a useful and interesting book, albeit one that raises the question of when one crosses the line between addressing historical context on the one hand and recounting historical trivia on the other.

    Part I of this Review summarizes the factual and procedural background that led to the Supreme Court's opinion and to the parties ultimately settling the Alaska state law claims. Part II examines Foster's book in order and in depth, addressing the progression of the work and presenting Foster's argument as a whole. Part III takes a slightly more critical view and touches on more thematic questions, including the effectiveness of Foster's treatment of Morse and use of Morse to examine more broadly constitutional doctrine in the public school context, as well as the fine line that must be drawn between examining context on the one hand and obscuring the relevant facts with trivia on the other.

    As Washington Post columnist Dana Milbank observed in a tongue-in-cheek column entitled Up in Smoke at the High Court, published the day after oral argument in Morse v. Frederick, in this instance a high school prank had literally become a federal case. (7) On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska. (8) The relay was officially sponsored by Coca-Cola and other private entities. (9) To celebrate the event, which occurred during school hours, the Juneau school district arranged for district schools to send their students to the streets to see the torch go by, and even bussed students from distant schools to closer points (pp. 16-17, 231 n.33). The relay route passed in front of Juneau-Douglas High School, where Deborah Morse was the principal and Joseph Frederick was a senior. (10) Frederick was late to school that day, but after he arrived, he joined a group of friends across the street from the school. (11) When the cameras following the torchbearers came near, "Frederick and his friends unfurled a 14-foot banner bearing the phrase: 'BONG HiTS 4 JESUS.'" (12) Morse, who was watching, and who later explained that she thought the banner was encouraging illegal drug use, immediately crossed the street, and demanded that the students take the banner down. (13) Frederick refused, and Morse grabbed the banner, crumpled it up, and (after bringing Frederick to her office) suspended Frederick for ten days. (14) Frederick appealed his suspension to the school board, but lost on March 19, 2002. (15) On April 25, 2002, Frederick filed suit under 42 U.S.C. [section] 1983 in federal district court in Alaska, alleging that the Juneau school board and Morse personally had violated his rights under the First Amendment and Alaska law, and seeking declaratory and injunctive relief along with compensatory and punitive damages. (16) Morse and the school board responded by filing motions for summary judgment on the basis that they were protected from Frederick's claims by qualified immunity. (17)

    On May 27, 2003, District Judge John W. Sedwick granted the defendants' motions, concluding that both Morse and the Board were entitled to qualified immunity. (18) The doctrine of qualified immunity for government officials recognizes that, "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences.'" (19) Accordingly, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (20) Under the two-part qualified immunity test laid out by the Supreme Court in Saucier v. Katz, (21) a court asks first whether, under the facts viewed in the light most favorable to the nonmoving party, there is any violation of a constitutional right. If there is, the court then asks whether the right was "clearly established" at the time of the violation. (22) In this case, Judge Sedwick found that Frederick could not demonstrate that his right to disseminate a message that Morse reasonably believed pertained to drugs was "clearly established" at the time of the incident. (23) Frederick appealed.

    On March 10, 2006, the...

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