When Justice Samuel Alito agreed with other members of the Supreme Court that a school principal could constitutionally prohibit a student from holding up a sign with the words "Bong Hits for Jesus," he thought that the prohibition was limited to speech about illegal drugs. (2) He was wrong. One year later, federal courts have expanded Morse v. Frederick (3) far beyond its facts to include restrictions on student speech advocating illegal conduct and speech threatening school safety. This article suggests that the expansion of Morse has two causes. The first is the Court's opinion itself. The second is what this article has labeled the "Columbine factor."
One way to characterize Supreme Court opinions is to divide them into principled or ad hoc. Principled opinions provide lower courts with guidance. Ad hoc opinions are harder to apply in the future and leave lower federal courts with little guidance. The Supreme Court opinion in Morse v. Frederick (4) is an ad hoc opinion. It provides federal courts with little guidance in the area of student speech.
Morse concerned a First Amendment challenge by a high school student who was suspended for holding up a banner containing the words "Bong Hits for Jesus" at a time when students were released from class to watch the Olympic Torch Relay pass in front of their school. After the Supreme Court granted certiorari, it was fully expected that the Court would clarify the First Amendment rights of students. Contrary to expectations, the Court's opinion in Morse did little to clarify student rights. Instead, the predictive value of Morse can be summed up in the following way: "students have a right to speak in schools except when they don't." (5)
The aim of this article is to discuss new limitations on student speech arising from the unprincipled nature of the Court's opinion in Morse and from the Columbine factor. The Columbine factor arises from a heightened concern about the safety of students in schools after tragic events such as the Columbine massacre. (6) In some instances, this factor has resulted in a judicial balancing test where fear of a Columbine attack is balanced against the First Amendment rights of students. (7) Any attempt to predict the outcome of a student-speech case in the twenty-first century should take the Columbine factor into account. Yet this is difficult. It is difficult because it is a heuristic (8) that lies outside traditional legal theories. Nevertheless, the Columbine factor exists. It can be seen in the September 11, 2008 opinion of a federal judge who wrote that the "term 'Columbine' connotes death as a result of one or more students shooting other students." (9) It can be seen in the 2008 opinion of another judge who wrote that mass shootings are a fact of life and that it is "against this backdrop that courts across the country have considered First Amendment challenges." (10)
As Part III of this article will show, judicial references to school shootings make clear that the shootings themselves, along with the media's sensationalized coverage of them, has had its effect. Television imagery of students running away from a shooter is fear-inducing. (11) This fear, fueled by easy-to-recall images, exaggerates the probability of risk that a Columbine attack will occur. (12) Added to this, is the Court's unprincipled opinion in Morse. By failing to provide lower courts with guidance, and by characterizing schools as places of "special danger," (13) Morse opened the door to extreme interpretations of what the case meant and to its use as the legal foundation for Columbine-related concerns.
This article will begin, in Part I, by discussing the approaches to student First Amendment cases that preceded Morse. Part II will discuss the Morse case itself. Part III will develop the article's main theme: the expansive ways that Morse has been interpreted by lower federal courts and the influence of the Columbine factor on recent student First Amendment cases. Part IV will discuss the Columbine factor as an "availability heuristic" and make a suggestion about what the Court should have done in Morse.
BACKGROUND: APPROACHES TO STUDENT SPEECH THAT PRECEDED MORSE
Tinker v. Des Moines Independent Community School District: "Substantial Disruption"
The modern era of student speech cases began with the Supreme Court's opinion in Tinker v. Des Moines Independent Community School District. (14) It was in Tinker that the Court famously announced that students do not lose their First Amendment rights "at the schoolhouse gate" and that teacher expression was also subject to the protection of the First Amendment. (15) Tinker involved students who were suspended after coming to school wearing black armbands to signify their political opposition to the Vietnam War. The Court held that wearing a black armband was akin to pure speech (16) and that the suspension was an unconstitutional denial of the students' First Amendment rights. (17) When the Court decided Tinker, it created a framework to determine whether a school could constitutionally prohibit student speech. Under the Tinker approach, any restriction on student speech is unconstitutional unless the school can demonstrate that a student's expression would cause "substantial disruption" or "material interference" with the work of the school. (18) Moreover, mere "apprehension of disturbance" will not be enough to overcome a student's First Amendment rights. (19)
Bethel School District No. 403 v. Fraser: "Educational Mission" and Prohibition of "Vulgar and Lewd" Speech
A second approach to student-speech cases was created by the Court in Bethel School District No. 403 v. Fraser. (20) Fraser involved a student speaker who used sexually suggestive words to describe a student candidate in front of an all-school assembly, which included students as young as fourteen. (21) The Court concluded that, unlike Tinker, the student's words in Fraser were unrelated to any political viewpoint. (22) After his speech, the student speaker was suspended. Despite a First Amendment challenge, the Supreme Court upheld the suspension. The Court held that the First Amendment rights of public-school students "are not automatically coextensive with the rights of adults in other settings" (23) and that school officials could punish speech that would undermine a "school's basic educational mission." (24) Thus, Fraser created a new exception to Tinker. This was an exception based on lewd, vulgar speech inconsistent with the school's "educational mission" (25) and the "fundamental values of a public school education." (26)
Hazelwood School District v. Kuhlmeier: "School Sponsored Speech" and "Related to Legitimate Pedagogical Concerns"
Two years after Fraser, the Court in Hazelwood School District v. Kuhlmeier (27) created a third approach to student speech, and a second exception to Tinker. Kuhlmeier grew out of a principal's decision to prohibit the publication of stories about pregnancy and divorce in a high-school newspaper. (28) The Court began its opinion by distinguishing Tinker on the basis that the school there merely tolerated student speech, whereas in Kuhlmeier, if the publication were allowed to go forward, then the school would be seen as affirmatively promoting certain student speech. (29) Specifically, the court held that "[e]ducators are entitled to exercise greater control" over student expression that appears to be school sponsored. (30)
As the Court did in Fraser, the Court in Kuhlmeier refused to use the Tinker approach. (31) Instead of relying on Tinker's substantial disruption test, the Court in Kuhlmeier used a reasonableness standard. The Court held that school officials do not violate the First Amendment by exercising control over school-sponsored student speech, so long as the actions of the officials are "reasonably related to legitimate pedagogical (educational) concerns." (32) It is against this legal background that the Supreme Court decided Morse v. Frederick.
WHAT THE SUPREME COURT DECIDED IN MORSE
The majority opinion in Morse was concerned with six issues: (1) whether Morse was a school speech case at all; (2) whether judicial deference should be given to the disciplinary decision of a school official; (3) whether the principal was entitled to official immunity; (4) whether student speech could be prohibited merely on the ground that it was "offensive"; (5) what framework of analysis to use; and (6) whether to create a new category of speech exempt from First Amendment protection. Two of the most significant issues-creation of a new student speech prohibition and judicial deference to school authority--were influenced by the Columbine factor.
Characterization of Morse as a School-Speech Case
The first issue the Court confronted was whether Morse was a school-speech case at all. The issue arose because the fourteen-foot "Bong Hits for Jesus" banner was held by students standing on the sidewalk across the street from the school. A sidewalk is a traditional public forum ordinarily subject to strict-scrutiny analysis. (33) The Court got around the sidewalk issue by characterizing the torch relay as a "school supervised event" (34) that took place while teachers were "monitor[ing] the students' actions." (35) The Court specifically rejected the student's argument that this was not a school-speech case. (36) This was vitally important to the Court's decision. It allowed the Court to move away from the sidewalk as a public forum subject to strict scrutiny and embrace the more lenient First Amendment standards applicable to school-speech cases. (37)
Comfortable with the fact that Morse was a school-speech case, the second issue the Court confronted was whether the principal was entitled to immunity. The Ninth Circuit had held that Principal Morse was not entitled to qualified immunity. (38) This left her personally liable to student Frederick for...