The 2007 Roberts Court education law cases: reaffirmation or cut-back of student rights?

• Author: Dodd, Victoria J.

1. INTRODUCTION

   In late June 2007, the newly formed Roberts Supreme Court of the United States (2) issued two significant opinions: Morse v. Frederick, (3) and Parents Involved in Community Schools v. Seattle School District No. 1. (4) The Morse case involved a Juneau, Alaska, high-school student who was disciplined for unfurling the now-infamous "BONG HiTS 4 JESUS" banner during a school-sponsored event. (5) The Seattle School District case concerned school districts in Seattle and Louisville that were using racial classifications to make pupil assignments in certain schools. (6) Both decisions were narrowly decided and seemed to mark a shift in the constitutional law governing student speech and school desegregation.

   This Article will discuss these two important Supreme Court opinions, how they might have veered from previous Supreme Court precedent, and what they might portend for subsequent Supreme Court opinions in these areas of law. (7) In addition, this article will briefly discuss some newly decided cases which rely on Morse and Seattle School District to ascertain how these Supreme Court rulings are already influencing state and lower federal court judges. (8)

2. MORSE V. FREDERICK

   Joseph Frederick, a senior at Juneau-Douglas High School in Alaska arrived late to school on the morning of January 24, 2002 because of a snowstorm. (9) By the time he arrived at school, students had been allowed to leave class to watch the Olympic Torch Relay pass through the town. (10) On the street, Frederick and his friends unfurled a banner saying "BONG HiTS 4 JESUS." (11) High School Principal Morse, spying the banner, demanded that it be taken down and promptly suspended Frederick from school for ten days. (12)

   Frederick brought suit pursuant to 42 U.S.C. [section] 1983 in the United States District Court for the District of Alaska, claiming that Principal Morse and the school board had violated his First Amendment rights. (13) The district court ruled against him, finding qualified immunity for the defendants and no violations of Frederick's free-speech rights. (14) Interestingly, the United States Court of Appeals for the Ninth Circuit reversed both of the lower court's findings. (15)

   1. Chief Justice Roberts's Majority Opinion

      Chief Justice John Roberts penned the majority opinion, reversing both aspects of the Ninth Circuit's ruling. (16) In his decision, Justice Roberts emphasized that Frederick's speech took place during school time at a school-sponsored activity and was thus "school speech." (17) Though Frederick claimed his banner was just "nonsense," Justice Roberts concluded that the Principal reasonably interpreted the banner as meant to promote illegal drug use, namely the smoking of marijuana. (18)

      While the Ninth Circuit supported Frederick because his activities had not caused "substantial disruption" as required by the 1969 case, Tinker v. Des Moines Independent School District, (19) to punish student speech, (20) Justice Roberts instead focused on the "special needs" of the school setting to protect students from the dangers of drug use. (21) Collapsing the Court's recent rulings allowing widespread student drug testing in Vernonia School District 47J v. Acton (22) and Board of Education v. Earls (23) into the heretofore separate area of student-speech rights, Justice Roberts announced a new limitation on students' First Amendment rights: public schools may limit student speech that promotes illegal drug use. (24)

      This was certainly a new approach in Supreme Court student First Amendment constitutional doctrine. The Warren Court had strongly supported student speech rights in Tinker, as Justice Fortas ruled that neither "students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (25) Of course, the student in Morse was not at the gate but across the street, and in Tinker Justice Fortas also opined that "[a] student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinion, even on controversial subjects like the conflict in Vietnam ..." (26) It is not clear, therefore, that the Warren Court would even have classified Frederick's banner as "school speech," and even if it had, because the banner caused no disruption, it is unlikely that Frederick's suspension would have been constitutionally permissible in the eyes of the Warren Court. Something new was afoot in Morse concerning student-speech rights.

   2. The Concurring Opinions

      The concurring opinions of Justices Thomas, Alito, and Breyer demonstrate their hopes and fears concerning student-speech rights. (27) Justice Thomas writes to explain his view that the Tinker decision "is without basis in the Constitution." (28) Historically, according to Justice Thomas, students never had speech rights. (29) Noting that the Supreme Court decisions of Bethel School District No. 403 v. Fraser (30) and Hazelwood School District v. Kuhlmeier (31) created exceptions to the Tinker standards, Justice Thomas proclaims: "Today, the Court creates another exception. In doing so, we continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not." (32)

      As the author of the Earls opinion, a case involving student drug-testing, Justice Thomas must feel vindicated by its pivotal use in Morse. (33) He evidently also seeks to reproduce here the jurisprudential logic of Justice Kennedy in the 2003 Lawrence v. Texas (34) case overruling Bowers v. Hardwick. (35) In Lawrence, Justice Kennedy ruled that Bowers was improperly decided because it was based on incorrect factual history, the same methodology Justice Thomas uses in Morse to deride the Tinker ruling. (36) Justice Thomas seems to have increasingly found his judicial "voice" in recent Supreme Court opinions.

      Justice Samuel Alito, joined by Justice Kennedy, concurs from an opposite viewpoint. (37) Instead of demeaning Tinker, he seeks to save it and joins "the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions." (38) Justice Alito attempts to hold the constitutional line. (39)

      Justice Alito replaced Justice Sandra Day O'Connor on the Court, and this attempt to limit the Court's holding in Morse is classic O'Connor jurisprudence. (40) Alito's concurrence in Morse is all the more interesting because when he sat on the Court of Appeals for the Third Circuit, he ruled in Edwards v. California University of Pennsylvania (41) that a tenured professor did not have the freedom of expression to select college course materials. (42)

      Justice Breyer concurs in part and dissents in part, reasoning that the Court should readily give qualified immunity to Principal Morse, obviating the need to resolve "the fractious underlying constitutional question." (43) He states that the precise coverage of the Tinker ruling is unclear, possibly because he is reluctant to carve more exceptions to Tinker, lest the opinion itself be overruled. (44) The more conservative majority of the Roberts Court, in comparison to the Justice O'Connor-dominated majority of the Rehnquist Court, seems to have nudged Justice Breyer closer to the dissenting camps, whereas in some Rehnquist Court opinions Justice Breyer was able to fit his disagreeing views within a pure concurrence. (45) Increasingly, Justice Breyer separates himself from the majority.

   3. The Dissenters

      Justice Stevens authors the dissent in Morse, on behalf of himself and Justices Ginsberg and Souter. Understandably, he accuses the Court of "viewpoint discrimination," which is a prohibited goal under traditional, First Amendment jurisprudence relative to adults. (46) He also questions whether a reasonable viewer would necessarily interpret Frederick's banner as promoting drug use. (47) Courts are obligated, in Stevens's view, to make an independent analysis of the factual situation to safeguard protected expression. (48)

      Justice Stevens and his fellow dissenters are clearly concerned that Tinker may soon be overruled, as is Justice Breyer. (49) But their concerns go beyond Tinker. (50) They seemingly fear that the alacrity with which the majority limits student speech rights may ultimately influence First Amendment jurisprudence concerning adults. (51) Hence, Stevens's dissent is laced with references to landmark speech opinions: Justice Holmes in Gitlow v. New York, (52) Justice Brandeis in Whitney v. California, (53) and the Brandenburg v. Ohio (54) opinion.

      The dissenters' concerns may not be completely unfounded. Tinker has been substantially undermined by Morse, (55) and its overruling may be just one case, or one new justice, away. It is also plausible to imagine the expansion of the "special needs" exception in educational contexts to future adult search cases involving drugs or terrorism.

   4. Harper ex rel. Harper v. Poway

      The Supreme Court has additionally muddied the student free-speech waters in another 2007 case, Harper ex rel. Harper v. Poway Unified School District. (56) The Harper case involved a controversy in a public school in which a student was prohibited from wearing a t-shirt with an anti-homosexual slogan. (57) The Gay-Straight Alliance at Poway High School in California organized a "Day of Silence" in 2003 to teach tolerance lessons, particularly those concerning sexual orientation. (58) During the days surrounding the 2003 "Day of Silence," some anti-homosexual remarks and incidents occurred, and another student group organized its own "Straight-Pride Day." (59) On the "Day of Silence" of the following year, Harper, a student, wore a t-shirt to school that day that read on the front, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED," and on the back, "HOMOSEXUALITY IS SHAMEFUL...