The Various Interpretations of Morse v. Frederick: Just a Drug Exception or a Retraction of Student Free Speech Rights?

• Author: Joyce Dindo
• Position: Capital University Law School. J.D. candidate, expected to graduate in May of 2009
• Pages: 201-238

THE VARIOUS INTERPRETATIONS

OF MORSE V. FREDERICK: JUST A DRUG EXCEPTION OR

A RETRACTION OF STUDENT FREE SPEECH RIGHTS?

JOYCE DINDO*

I. INTRODUCTION—FIRST AM ENDMENT RIGHTS ARE

DIFFERENT FOR STUDENTS

When a studen t walks int o a school yard or cl assroom, he or she is st ill

protected by the First Amend ment to the United States Constitution.1 Yet,

a student is not afforded the same protection of t he First Amendment as an

adult is in a public space.2 Schools are simp ly different; students have

different righ ts.3 A h igh school student in the classroom does not h ave the

same right s as an adult on a public sidew alk.4 “[T]he constitution al rights

of students in public school are not automatically coextensi ve with the

rights of adults in ot her settings.”5 With the recent case of Mors e v.

Frederick6 the United States Supreme Court flooded this foggy area of law

with even more u nanswered questi ons and ambigui ty.

The speech ri ghts of st udents in schools have changed sev eral times

since the first Supreme Court decis ion on this issue. The Court announced

Tinker v. Des Moines Independent Community School District7 in 196 9,

and held that students d o not “shed their const itutional rig hts to freedom of

speech or expression at the sch oolhouse gat e.”8 Since then, student speech

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Copyright © 2008, Joyce Din do.

* Capital University Law S chool. J.D. candidate, expected to graduate in May of 2009.

I would like to thank Profe ssor Susan Gilles for her assistance with this pro ject.

1 U.S. CONST. am end. I (“Congress shall make no law . . . abridgi ng the freedom of

speech . . . .”).

2 See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

3 See, e.g., id.

4 See id.

5 Id.

6 127 S. Ct. 2618 (2007).

7 393 U.S. 503 (1969).

8 Id. at 506.

202 CAPITAL UNIV ERSITY LAW REVIEW [37:201

has become a controversial top ic in the First Amendment realm. 9

Following Tinker the Supreme Court announced two other opinions prio r

to Morse, both of whi ch placed limitati ons on Tinker’s holding.10

Most recently, in Morse, the Court sided with the school, rejecting a

student’s First Amendment challenge.11 In Mor se, a group of high school

students displayed a banner at a school-sponsored event.12 The banner

contained the following mes sage: “BONG HiTS 4 JES US.”13 When the

principal noticed the banner, she immediately instructed the students to

take i t down .14 All of t he s tudents complied except one senior, petitioner

Frederick, who refused.15 The p rincipal suspen ded Frederi ck, and the

superintendent and school board upheld her decision.16 Frederick filed

suit, claiming a violat ion of hi s First A mendment right to free speech.17

The Supreme Court held, in a 5-4 decision, that the p rincipal did not

violate Frederick’s First Amendm ent rights.18

This note discusses the sig nificance of Morse v. Frede rick. The Court

stepped away from the original Tinker doctrine and limit ed a student’s

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9 See Melinda C upps Dickler, The Mo rse Quartet: Student Speech and the First

Amendment, 53 LOY. L. REV. 3 55, 356–59 (2007) (discussin g the various views of

commentators).

10 See Hazelwood S ch. Dist. v. Kuhlmeier, 484 U.S. 260, 272–73 (1988) (“[T]he

standard articulated in Tinker for determining when a school may punish student exp ression

need not also be the stand ard for d etermining when a school may refus e to lend its nam e

and resources to the dissem ination of student expression.”); Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 680 (1986) (There exists a “marked distinction between the politica l

‘message’ of the armbands in Tinker and the sexual content of respondent’s speech in this

case . . . .”); see also infra Pa rt II.

11 Morse, 127 S. Ct. at 2629.

12 Id. at 2622.

13 Id.

14 Id.

15 Id.

16 Id. at 2622–23.

17 Id. at 2623.

18 Id. at 26 29. Writing for the majority, Chief Justice Roberts h eld that “[t]he ‘special

characteristics o f the school environment,’ and the governmental interest in stopping

student drug abuse—reflected in the po licies of Congress and myriad school bo ards,

including JDHS—allow s chools to restrict student expr ession that they reasonably regard as

promoting illegal drug use.” Id. (quoting Tin ker v. Des Moines Indep. Cm ty. Sch. Dist.,

393 U.S. 503, 506 (1969 )) (citation omitted).

2008] VARIOUS INTERPR ETATIONS OF MORSE V. FRED ERICK 203

right to freedom of expression. 19 Yet, the meaning of i ts holdin g is

unclear. The Court permitted a principal to restrict a student’s speech

while the student was on school gro unds,20 but the multi tude of plausible

readings of th e Morse opin ion leaves qu estions unans wered. Did the Court

simply create a drug exception , or did the Morse fact s fit with in the

exception already established in Ti nker?

This article summarizes the Morse decision and its imp lications. First,

the background s ection analyzes previ ous student speech cases th at came

before Morse v. Freder ick. The discussio n and analysis secti ons look

specifically at Mor se, d etailing its facts and holding. Furth er, th e

discussion compares the di ssenting opinion t o the majority’s hold ing.

Finally, the analysis will scrutinize the opinion, evaluate each plausible

reading, and consider Morse’s impa ct o n the way fed eral co urts approach

student speech cas es.

II. BACKGROUND

A. Tinker and Its L egacy—The Supreme Court Established a Student’s

Right to Free S peech and Announced the First Exceptio n to Free Spee ch in

Schools

The Tinker case is at the fo refront of student sp eech doctrine. 21 Tinker

was a ground breaking case in whi ch the United States Supreme Court

recognized a student’s constitutional rights on school grounds.22 Tinker

upheld free speech rights for students,23 b ut it did not expressly hold that

these rights are co- extensive with t he First Amendm ent rights of adult s.24

The conflict in Tinker arose during the Vietnam War.25 High schoo l

students prot ested the war by wearing black arm band s during schoo l

hours.26 Administrators at the h igh school s learned of the plan pri or to t he

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19 Id.

20 Id. at 2625.

21 See A ndrew D.M . Miller, Balancing School Authority and Student Expression, 54

BAYLOR L. REV. 623, 626 (2002).

22 See Tinker, 393 U.S. at 506.

23 See id.

24 See, e.g., Bethe l Sch. Dist. No . 403 v. Fraser, 478 U.S. 675, 682 (1986); Tinker, 393

U.S. at 514–15 (Stewart, J., con curring).

25 Tinker, 393 U.S. at 504 (majority o pinion).

26 Id.