Fall 2009-#17. Student Speech after Morse v. Frederick : An "Unwise and Unnecessary" Convolution.

Author:By Ronald Schildge, M.A. and Michael A. Stahler, Esq.

Vermont Bar Journal


Fall 2009-#17.

Student Speech after Morse v. Frederick : An "Unwise and Unnecessary" Convolution

THE VERMONT BAR JOURNALVolume 35, No. 3Fall 2009 Student Speech after Morse v. Frederick : An "Unwise and Unnecessary" ConvolutionBy Ronald Schildge, M.A. and Michael A. Stahler, Esq.In his affdavit eighteen-year-old Joseph Frederick testifed that after Principal Deborah Morse of Juneau-Douglas High School confscated his banner reading, "BONG HiTS 4 JESUS," he asked, "What happened to the Bill of Rights? This is our right to do this. It's a free speech exercise." She responded, "Not here it's not." He later asked his assistant principal, "What about the Bill of Rights? Doesn't that still exist?" Frederick claimed to have been told, "Not until you graduate," and "not in schools."(fn1) Regardless of the veracity of Frederick's testimony, these exchanges symbolize the underlying confrontation between the school offcials' interests and Frederick's rights. As a legal adult facing state punishment for expressing an unpopular message, Frederick baulked at the perceived denial of his freedom of speech. He believed that he had the right to express himself amongst his fellow students on a public sidewalk during the school day. Principal Morse and the administration, however, claimed to have the authority to censor him for promoting an opinion contrary to the mission of his school. This dilemma remained central as Frederick and the school fought their way to the Supreme Court, and this question reignited a national debate that unfortunately continues to fester in our nation's schools and courts.

In Morse v. Frederick (2007),(fn2) the U.S. Supreme Court reexamined the subject of students' voices in public schools for the frst time since Hazelwood School District v. Kuhlmeier (1988).(fn3) In their recent decision, the Court ruled in a 5-4 majority with fve written opinions(fn4) in support of Principal Morse, further restricting student speech rights in America's government-run educational institutions. The infamous "BONG HiTS 4 JESUS" case has now added a new caveat to the standard for proscription that many legal critics consider muddled and unnecessary. Rather than awarding qualifed immunity without ruling on the constitutional issue, as Justice Breyer supported, the majority opinion allows schools to restrict speech that a reasonable person could interpret as the promotion of illegal drugs. Given the opaque language and divided majority, many scholars have noted that is unclear how the lower courts will interpret this decision.(fn5) A few recent cases indicate that the majority's imprecise logic in Morse will have many unexpected implications. The decision emerged as a misguided attempt to expand the powers of administrators without curtailing other forms of religious and political expression in schools. Rather than clarifying the law, the Court merely created an ambiguous exception to Tinker v. Des Moines.(fn6) As Justice Breyer wrote in his partial concurrence, this "unwise and unnecessary"(fn7) ruling "raises a host of serious concerns"(fn8) without providing clear and cogent guidance for lower courts, schools, and students.

Many essential questions thus remain unresolved in school settings. What forms of speech does the frst amendment protect? What limits must reasonable administrators respect while attempting to maintain decorum in their schools? What future exceptions will the Supreme Court carve from students' existing speech rights? Left unresolved, these questions leave many students, school offcials, and courts unsure how to proceed in the face of rising litigation.(fn9) Indeed, situations similar to that of Frederick and Morse are likely to arise again between students and administrators as they attempt to navigate the diffcult waters of student speech law.

The Original Precedent: Tinker

Student speech rights is a unique feld of frst amendment law. Three cases prior to Morse v. Frederick, starting with Tinker v. Des Moines,(fn10) laid out the concept that these rights are not coextensive with adult rights and that courts need to balance the competing interests of decorum and liberty. The Warren Court was the frst to 'discover' the constitutional mandate to protect students from administrators' prescriptions of political orthodoxy on campus. Tinker raised the question of whether students could wear black armbands in opposition to the Vietnam War. Prior to this ruling, school offcials had an almost unlimited ability to regulate student expression.(fn11) Political discussions in the Vietnam War era had a tendency to get heated, so teachers who wished to avoid controversy would go to great lengths to stife speech that made them uncomfortable. The Court's decision in support of the students' symbolic protest affrmed that young people do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."(fn12) Students' right to protests were akin to "pure speech," which is granted the greatest protection by the frst amendment.(fn13) This decision justifably protected students who wished to display a non-disruptive political message.

The real question, however, was how far students' speech rights paralleled those of adults. What allowed public educational institutions to restrict expressions that could not be proscribed outside schools? Tinker said that, given the "special characteristics of the school environment,"(fn14) regulation of student expression was generally permissible only when the speech would (1) "materially and substantially disrupt the work and discipline of the school"(fn15) or (2) "impinge upon the rights of others."(fn16) This two-pronged test made it substantially more diffcult for public schools to punish students for espousing controversial viewpoints. There was no explicit requirement that student speech be political or of high value, and courts have read the second prong as only limiting speech with tortuous liability, such as slander.

As a result, students had much liberty. They could make a speech in front of an audience of their peers that could, under Tinker, deride the faculty, other students, or the mission of the school as long as they did not create a substantial disruption or violate any preexisting laws governing speech, such as those prohibitions on expressions that presented a clear and present danger to society or those that constitute libel, obscenity, or slander. The ruling also protected the student who presented an expository essay in English class with violent themes as long as it did not create a "substantial disruption."

The Court placed the onus on the administration to show that it was not simply suppressing, "expressions of feelings with which they do not wish to contend."(fn17) Justice Black's dissent, however, warned that this decision effectively "surrender[ed] control of the American public school system to public school students."(fn18) His voice was prophetic of the apparent shift in the Court's subsequent decisions.

Tinker Revisited

Seventeen years later the composition of the Court changed and so did the attitude towards student speech rights. Bethel School District v. Fraser(fn19) added a caveat to the Tinker test, with Chief Justice Burger ruling that schools could restrict non-obscene speech(fn20) if it was "offensively lewd and indecent."(fn21) The case involved a student who delivered a speech to a school assembly using sexual innuendo to endorse his friend for student government. Given that students are often a captive audience, the Court decided that schools could restrict speech that was incongruous with the "habits and manners of civility."(fn22) This ruling would apply to the proscription of speech in a cafeteria where students made lunch announcements as well as in an auditorium where debates were held. This case also mentioned that schools do not need to tolerate vulgar speech that "undermine[s] the school's basic educational mission."(fn23) These words provided the basis for Principal Morse's assertion that Tinker did not protect non-political speech that conficted with a school's mission.(fn24)

The third case in this student speech trilogy was Hazelwood School District v. Kuhlmeier,(fn25) in which Chief Justice Rehnquist's Court ruled that administrators could censor the speech of students in a school newspaper if it was not, "by policy or by practice a [open] for indiscriminate use by a student organizations."(fn26) Because the student newspaper was not a public forum, the school could restrict student expression because "the public might reasonably perceive [the student's opinion] to bear the imprimatur of the school."(fn27) The Court reasoned that teaching students how to use their voices appropriately in a public setting included showing them what is appropriate or inappropriate for publication.(fn28) This issue arose in Morse when the principal dubiously claimed that her failure to act would lend implicit support for Frederick's "BONG HiTS 4 JESUS" banner, and hence her actions were necessary to prevent the perception that drug advocacy bore the school's imprimatur. Needless to say, the Court agreed in Morse with earlier holdings that the government's mere failure to censor does not constitute their tacit support for a...

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