Sarah Tope Reise, "just Say No" to Pro-drug and Alcohol Student Speech: the Constitutionality of School Prohibitions of Student Speech Promoting Drug and Alcohol Use

• Citation: Vol. 57 No. 5
• Publication year: 2008

COMMENTS

"JUST SAY NO" TO PRO-DRUG AND ALCOHOL STUDENT SPEECH: THE CONSTITUTIONALITY OF SCHOOL PROHIBITIONS OF STUDENT SPEECH PROMOTING DRUG AND ALCOHOL USE¹

INTRODUCTION

Schools across the country prohibit students from promoting or advertising drugs and alcohol.²Juneau-Douglas High School in Juneau, Alaska, is no different.³So when a student, Joseph Frederick, unfurled a banner reading "BONG HITS 4 JESUS" while standing outside the school and watching the

2002 Olympic Torch Relay, Principal Deborah Morse requested that he remove it.⁴When Frederick refused, Principal Morse confiscated the banner and suspended him for ten days.⁵Frederick sued, alleging a violation of his constitutional rights. When the district court found for the school, he appealed.⁶

In response to Frederick's appeal, the Ninth Circuit held that schools may not prohibit pro-drug and alcohol student speech.⁷Frederick v. Morse marks the first time a court directly considered whether a school may constitutionally restrict pro-drug and alcohol student speech.⁸

Ever since the Supreme Court decided that Mary Beth Tinker could protest the Vietnam War by wearing a black armband to school, courts and scholars have disagreed about how to define students' First Amendment speech rights.⁹

The concept that students do not "shed their constitutional rights . . . at the schoolhouse gate"¹⁰conflicts with one of the main objectives of a public school education: "the inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system."¹¹Schools should balance their interest in preparing students for democratic discourse with their interest in inculcating students with necessary social values.¹²They should encourage the development and discussion of different viewpoints while protecting impressionable children from harmful messages.¹³

Schools seek to protect children from messages that promote drug and alcohol abuse.¹⁴The Supreme Court has recognized that administrators may wish to distance their schools from such messages.¹⁵However, while the Court has stated that "school[s] must . . . retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use,"¹⁶it has not considered if a school can prohibit such speech when it occurs independently from school activities.

This Comment argues that the current legal framework of First Amendment student speech rights denies schools the necessary authority to prohibit pro- drug and alcohol student speech. Nonetheless, schools should have this authority to aid their efforts in combating teen drug and alcohol abuse. Therefore, the Supreme Court should create a new category of student speech that schools may restrict.

The Court's decisions in cases involving student rights and drug testing in schools reflect the Court's willingness to create a new category of speech. In two Fourth Amendment cases considering the issue of drug testing in schools, the Supreme Court expressed serious concerns about drug use in our nation's schools.¹⁷In response, the Court gave schools more power over students under the doctrine of in loco parentis.¹⁸Therefore, the Court may be willing to follow this trend and allow schools to restrict pro-drug and alcohol student speech.

Public schools need the authority to restrict pro-drug and alcohol speech because drug and alcohol use has detrimental effects on children.¹⁹In addition to the physical and psychological effects of drug and alcohol use,²⁰early drug use is a significant factor in drug dependence later in life.²¹Furthermore, peer approval and the perception that peers are drug or alcohol users significantly affects a child's decision to use drugs and alcohol.²²

Part I of this Comment introduces the concept of the "school power continuum" as a way of understanding the Supreme Court's approach to defining the nature of school power and ability to limit or restrict free speech. Part II analyzes the case law relating to student expression, beginning with the trilogy of Supreme Court student-speech cases. This Part contends that, under most interpretations of these cases, schools lack the authority to restrict pro- drug and alcohol student speech.

Part III demonstrates the importance of this issue and why schools should have the authority to restrict pro-substance use speech. That Part also describes the current state of drug and alcohol use in schools and illustrates the influence pro-substance use messages have on an adolescent's decision to use drugs or alcohol. Finally, Part IV asserts that the best solution is to create a new category of student speech. This contention is supported by evidence that the Court has increased school power in relation to students' constitutional rights when the issues involved drug and alcohol use. That Part also addresses arguments that schools already wield too much power over student speech.

I. THE NATURE OF SCHOOL POWER: THE SCHOOL POWER CONTINUUM

In attempting to define the extent of students' constitutional speech rights, the Supreme Court has never clearly described the nature of school power.²³

Instead, the Court's opinions on student speech implicitly create a continuum of school power.²⁴On one end of this continuum is the power of the state and, on the other, the power of the parent.²⁵

Traditionally, at common law, schools cared for and disciplined students by acting in loco parentis.²⁶Sir William Blackstone discussed the doctrine of in loco parentis in his Commentaries:

[The father] may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.²⁷

Therefore, when a parent entrusted his child into the schoolmaster's care, the parent bestowed a measure of his parental power to the teacher.²⁸

However, the rise of the American public school changed the face of school authority. Before public schools became common, parents chose whether to send their children to school and therefore voluntarily delegated their parental authority to the schoolmaster.²⁹Compulsory education laws undermine this concept of voluntary delegation, and school authority has become, in part, a delegation of state power.³⁰As government actors, schools must abide by the limitations on State power set forth in the Constitution.³¹The Court has consistently recognized this aspect of school power³²and suggested that failure to protect constitutional rights in schools "strangle[s] the free mind at its source and teach[es] youth to discount important principles of our government as mere platitudes."³³

Though public schools are in some respects state actors, the doctrine of in loco parentis survives.³⁴The Court has preserved this doctrine in public schools by recognizing the "special characteristics of the school environment."³⁵The doctrine of in loco parentis loosens some of the "governmental" constraints placed on public schools, giving school administrators more power over students than the government has over adults.³⁶

The Court has never delineated just how much parental authority a public school retains in relation to student speech rights, despite acknowledging that a school's authority is not strictly limited to the powers of the state.³⁷The Court has placed markers on the school-power continuum with each case it has decided.³⁸For example, when schools attempt to restrict political speech, the Court tends to define school authority in terms of governmental power and thus constrained by the Constitution.³⁹This places the marker closer to the state end of the continuum.⁴⁰However, in cases involving obscenity, the Court defines school authority as parental power and loosens the constitutional constraints on student speech regulation.⁴¹

II. DEFINING THE BOUNDARIES OF SCHOOL POWER AND THE EXTENT OF

STUDENTS' RIGHTS TO FREEDOM OF SPEECH

While the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech," the Supreme Court has determined that the Constitution does not protect all types of speech.⁴²Moreover, the rights of children are not coextensive with those of adults.⁴³Therefore, the primary recurring issue in student-speech cases is when the Constitution permits limitations on student expression. Whether a school may restrict or limit student speech depends on whether the student speech at issue falls into one of three categories: offensive speech, school-sponsored speech, or speech that causes a substantial disruption in school function.

A. Constructing the Framework: Supreme Court Decisions

Prior to Frederick v. Morse, The Supreme Court had decided three major student speech cases in the last thirty years: Tinker v. Des Moines Independent Community School District,⁴⁴Bethel School District No. 403 v. Fraser,⁴⁵and

Hazelwood School District v. Kuhlmeier.⁴⁶Tinker considers independent student speech and marks a low point for school power.⁴⁷Fraser returned some power to the school to limit obscene or offensive speech and recognized a school's parental power is appropriate if necessary to protect children.⁴⁸

Finally, while Hazelwood increased school power to restrict school-sponsored speech, the Court characterized this authority as state power.⁴⁹

1. Tinker v. Des Moines Independent Community School District

In Tinker v. Des Moines Independent Community School District, a group of students wore black armbands to school to protest the Vietnam War.⁵⁰The Court held that a school could not restrict this expression unless it could show that the students' conduct would materially and "substantially interfere with the work of the school or impinge upon the rights of other students."⁵¹The Court recognized that student rights must be balanced with the needs of school authority "in light of the special characteristics of the...