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

• Author: Bell, Justin Lee

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.

1. 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)

2. FACTS AND PROCEDURE

   1. 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 the school, Frederick and his friends revealed a 14-foot banner bearing the phrase:" BONG HiTS 4 JESUS.." (25) No matter what his intentions were, the large banner was easily readable by the students on the other side of the street. (26)

      Principal Morse crossed the street and demanded that the banner be taken down; everyone but Frederick complied. (27) Morse confiscated the banner and told Frederick to report to her office. (28) "Frederick let go of the banner and walked the other way." (29) Once Frederick reported to Principal Morse's office, she suspended him for ten days based on multiple infractions, including refusal to respond to a staff directive, truancy and skipping class, defiance and disruptive behavior, refusal to cooperate and assist in investigation, and displaying the offensive banner. (30) To justify punishment for displaying the banner, Principal Morse cited Juneau School Board Policy No. 5520, which stated: "The Board specifically prohibits any assembly or public expression that ... advocates the use of substances that are illegal to minors...." (31) Additionally, Juneau School Board Policy No. 5850 subjects "[p]upils who participate in approved social events and class trips" to the same student conduct rules that apply during the regular school program. (32) Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it, limiting it to the eight days that had already been served. (33)

   2. PROCEDURAL HISTORY OF MORSE V. FREDERICK

      1. The U.S. District Court of Alaska Ruled That There Was No First Amendment Violation

         Frederick filed suit under 42 U.S.C. [section] 1983 in the U.S. District Court of Alaska, alleging that his First Amendment rights had been violated by the school board and Morse. (34) He sought declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney's fees. (35) The school board and Morse made a motion for partial summary judgment to establish that they had qualified immunity from claims under 42 U.S.C. [section] 1983, that they were immune from an award of damages under Alaska law, and that the Board was immune from punitive damages in an action under 42 U.S.C. [section] 1983. (36) Frederick made a motion for summary judgment on his claims for declaratory and injunctive relief. (37) In response, the school board and Morse filed a cross-motion for summary judgment against Frederick's claims for declaratory and injunctive relief. (38)

         The district court granted the motions for summary judgment in favor of the school board and Morse on both issues. (39) First, the court ruled that the defendants were not liable for monetary damages under the doctrine of qualified immunity because even if there was a First Amendment violation, the defendants did not violate clearly established law if Morse reasonably believed that the statement was directed at students on campus. (40) Additionally, the court ruled that Frederick was not entitled to declaratory and injunctive relief because the defendants had not infringed Frederick's First Amendment rights. (41) The court found that Morse reasonably interpreted the banner as promoting illegal drug use, a message that "directly contravened the Board's policies relating to drug abuse prevention." (42) Under those circumstances, the court held that "Morse had the authority, if not the obligation, to stop such messages at a school-sanctioned activity...." (43)

      2. The Ninth Circuit Court of Appeals Reversed

         The Ninth Circuit Court of Appeals reversed the district court's ruling on both the First Amendment and qualified immunity issues. (44) The court ruled that even if the banner expressed a pro-drug sentiment, Morse violated Frederick's First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a "likelihood of substantial disruption." (45) Additionally, the court held that Morse was not entitled to qualified immunity because Frederick's First Amendment rights were so clearly established that a reasonable principal in Morse's position would have understood that her actions were unconstitutional. (46)

   3. THE UNITED STATES SUPREME COURT DECISION

      1. Chief Justice Roberts's Majority Opinion

         With a 6-3 majority, the United States Supreme Court overturned the decision of the Ninth Circuit Court of Appeals, holding that Morse did not violate Frederick's right to free speech by confiscating a banner she reasonably viewed as promoting illegal drug use. (47) Certiorari was granted on two questions: "[W]hether Frederick had a First Amendment right to wield his banner, and, if so, whether that right was so clearly established that the principal may be held liable for damages." (48) Before answering those questions, the Chief Justice outlined the three Supreme Court cases that are controlling in the area of pubic school student speech: (49) Tinker v. Des Moines Independent Community School District, (50) Bethel School District No. 403 v...