Appealed from: United States Court of Appeals for the Ninth Circuit
Oral argument: March 19, 2007
Joseph Frederick, an 18-year-old high school student, displayed a banner with the message “Bong Hits 4 Jesus” across the street from his school, during the Olympic torch relay in Juneau, Alaska. School administrators had released students to watch the Olympic torch, and Frederick’s banner was in plain view of those students. Deborah Morse, the high school principal, suspended him for violating the school’s policy against displaying offensive materials promoting illegal drug use. Frederick argues that he had First Amendment protection because he was not on school premises. He also contends that his actions do not fall under the types of student speech normally susceptible to regulation by school administrators. Moreover, Frederick argues that Morse is not entitled to qualified immunity because a reasonable principal would have known that she was violating Frederick’s constitutional rights. On the other hand, Morse contends that the banner was displayed during a school activity that was supervised by school faculty, circumstances that normally limit students’ First Amendment rights. Even if she did violate Frederick’s rights, Morse argues that it is unfair to deny an official qualified immunity when courts and officials reasonably disagree on whether a constitutional violation occurred. The district court sided with Morse, holding that Morse did not violate Frederick’s First Amendment rights, and even if she did, no personal liability would attach under the qualified immunity doctrine. On appeal, the Ninth Circuit reversed. The Supreme Court granted certiorari to decide a case that will have a significant impact on the Court’s student speech doctrine. With this decision, the Court will determine whether it will extend the categories of speech capable of being regulated by school administrators. Also, the Court’s decision will decide the extent of school officials’ liability in student speech lawsuits.
1. Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events.
2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. § 1983 when, pursuant to the school district’s policy against displaying messages promoting illegal substances, she disciplined a student for displaying a large banner with a slang marijuana reference at a school-sponsored, faculty-supervised event.
1. Do public schools have a First Amendment right to keep students from exhibiting a message advocating drug use at a school-sponsored event that was supervised by faculty?
2. Did the Ninth Circuit correctly decide that a school principal was liable under the Civil Rights Act for disciplining a student after he exhibited a banner that read “Bong Hits 4 Jesus” at an event sponsored by the student’s school and supervised by school faculty?
On January 24, 2002, several private sponsors and civic leaders organized the “Winter Olympics Torch Relay,” an event that wound through the streets of Juneau, Alaska. Frederick v. Morse, 439 F.3d 1114, 1115 (9th Cir. 2006). Because the relay was deemed to have educational value, students throughout the city were released from school to watch as the torch was carried through the city streets. Brief for Petitioner at 3. Joseph Frederick was then an 18-year-old senior at Juneau-Douglas High School. Frederick v. Morse, 439 F.3d at 1115. Frederick never made it to school that day due to a delay caused by the snow in his driveway, but he was able to make it to the public sidewalk directly across from his school. Id. Frederick was aware that the Olympic torch would pass by this sidewalk. Id.
After waiting for the appropriate moment, when television cameras were sure to catch the action, Frederick and some friends unfurled a large banner that read “Bong Hits 4 Jesus” in plain view of the school’s student body. Id. After watching this event unfold across the street, Deborah Morse, the school principal, crossed the street and confronted Frederick about the banner. Id. Responding to Morse, Frederick asked “What about the Bill of Rights and freedom of speech?” Id. at 1116. Morse instructed Frederick to take the banner down because “it violated the policy against displaying offensive material, including material that advertises or promotes use of illegal drugs.” Id. Morse then grabbed the banner from Frederick and crumpled it. Id. Morse suspended Frederick for ten days. Id. at 1115.
There was disorder during the torch passing, but the uncontradicted evidence is that it had nothing to do with Frederick’s banner. Id. Instead, the disorder consisted of students throwing plastic Coca Cola bottles and snowballs at each other and getting into fights. Id. Frederick and his friends, however, did not participate in these disturbances; the group was saving its energy for what they hoped would be their nationally televised banner display. Id. at 1115–16. In fact, the disruptions at the torch relay event occurred before Frederick displayed the banner. Id. at 1116. In the days following the incident, pro-drug graffiti appeared in the high school, which Morse believed was “sparked” by the banner display. Id.
According to the Ninth Circuit, however, Morse did not tear down the sign because she was anticipating these consequences on campus; rather, Morse was concerned with the message being sent to the students and public lining the street, which was “inconsistent with the district’s basic educational mission to promote a healthy, drug-free lifestyle.” Id. In fact, in answers to interrogatories, Morse and the Juneau School Board never argued that the banner had disrupted or was expected to disrupt the educational environment in the classrooms. Id.
The parties dispute whether the viewing of the Olympic torch relay off the school’s premises was a regular school-sanctioned event. Id. Frederick contends that students were simply released from school for a period of time to permit them to watch a privately sponsored event occurring on public streets. Id. Frederick notes that students were not required to submit a parental permission slip to be released, which is usually the primary requirement for school field trips and other supervised events that occur off the school’s premises. Id. Morse, on the other hand, calls the release “an approved social event or class trip,” noting that the school band and cheerleaders greeted the torchbearers, and the school’s teachers supervised the event. Id.
After Morse handed down Frederick’s ten-day suspension, Frederick appealed the decision unsuccessfully through every method and every level of administrative and school board review. Id. at 1116–17. After exhausting all other options, Frederick filed a federal suit under 42 U.S.C. § 1983, seeking a declaratory judgment that his rights under the First Amendment had been violated; an injunction to remove the ten-day suspension from his school records; damages; and other relief for Morse’s alleged misconduct. Id. at 1117.
The district court granted summary judgment for Morse and the Juneau School Board, holding that Morse’s actions had not violated Frederick’s constitutional rights, and that, even if constitutional rights violations had occurred, Morse and the School Board were entitled to qualified immunity. Id. The Ninth Circuit reversed and remanded the lower court’s decision. Brief for Petitioner at 12. The court acknowledged that the Olympic torch relay viewing was an activity authorized by the school, and that the banner expressed a positive message about drug use. Id. The court, however, decided that Frederick’s speech could not be suppressed because it was neither plainly offensive, school-sponsored, nor substantially disruptive. See id. at 12–14. Finally, the Ninth Circuit found that Morse and the School Board were not entitled to qualified immunity, remanding the case to determine Frederick’s money damages. Id. at 14.
The Supreme Court’s decision in this case will have an important impact on the scope of the free speech rights granted to public school students under the First Amendment, and will also determine the proper application of the qualified immunity doctrine, which exempts certain actors from liability for damages. See Brief for Petitioner at 14–17. Indeed, the outcome will clarify the boundaries of student free speech rights, and have a significant influence on the way student-conduct policies are enforced throughout the nation. Associated Press, ‘Bong Hits 4 Jesus’ Case to the Supreme Court?, Aug. 29, 2006.
Morse and the Juneau School Board argue that the Ninth Circuit’s decision was based on an unduly narrow reading of the Supreme Court’s jurisprudence regarding the free speech rights of public school students. Brief for Petitioner at 14. Morse notes that the Supreme Court’s student speech decisions have consistently recognized that public educational institutions possess “special characteristics” that profoundly affect the contextually sensitive boundaries of free speech doctrine. Id. at 14–15. According to Morse, the Ninth Circuit ignored settled precedent that gave respectful deference to the judgment of school administrators in limiting or suppressing student expression that is inconsistent with the educational function of public schools. Id. at 15.
Frederick, on the other hand, contends that the Ninth Circuit properly distinguished past Supreme Court precedent that allows school officials to curtail the free speech rights of students. Brief for Respondent at 6. In the leading student free speech cases, the Supreme Court found that school officials could tailor the content of student speech if it is plainly offensive (e.g., lewd or profane speech) or if the speech is directly sponsored by the school (e.g., is printed in the school newspaper). Id. Here, Frederick argues, neither situation exists, which places the case under the general rule in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), which provides that schools may regulate student speech only when it would materially and substantially disrupt class work and school discipline. Id. at 17–21. According to Frederick, his pro-drug banner was not sufficiently disruptive to be regulated by Morse. Id.
Given the educational setting of the case, the Supreme Court’s decision will significantly influence the role of school administrators when dealing with pro-drug speech and other types of controversial speech that occur at school-sanctioned events. See Amicus Brief U.S. in Support of Petitioners at 1. A decision in favor of Morse and the Juneau School Board will permit school administrators to exercise greater authority to limit any type of student speech that is inconsistent with the school’s educational mission, without having to consider its potential for disruption. See id. School administrators will have clear authority to protect students from apparent threats to the educational environment, including those associated with drug abuse. Amicus Brief D.A.R.E. in Support of Petitioners at 1.
According to the United States, a decision for Morse is essential so that school administrators may effectively maintain a successful learning environment free from drugs, which impede a student’s ability to learn and “promotes behavior antithetical to the educational mission.” Amicus Brief U.S. at 7. Additionally, school administrators will be free to regulate student speech that encourages disrespect for and violation of the law. Id. at 7. Finally, a decision for Morse and the Board will clarify the qualified immunity that applies to certain local, state, and federal officials. Id. Administrators, who are arguably in the best position to determine the context of student speech, will be free to exercise their discretion in disciplinary actions without interference from the courts. Id. at 8.
Conversely, a decision for Frederick will uphold the Ninth Circuit’s decision and limit school administrators’ authority to regulate student speech to that which is plainly offensive, school sponsored, or substantially disruptive. Amicus Brief Drug Policy Alliance (for the Ninth Circuit decision) at 3. Such a decision will mean that student speech that merely contradicts a school’s educational mission cannot be regulated. This will leave the breadth of topics that can form the basis of constitutionally protected student speech unchanged and, in the opinion of the Drug Policy Alliance, permit a free dialogue of politically sensitive issues that have been a part of the national discourse, such as the legalization of marijuana. Id.
The Drug Policy Alliance also notes that a decision for Frederick would appropriately call into question zero-tolerance policies that are similar to those adopted by the Juneau School Board and have been implemented in school districts throughout the country. Id. at 10. According to the Alliance, punishing Frederick’s student speech, and thus putting an end to an open dialogue about the topic, would actually fail to advance the goal of “drug free” schools. Id. A decision for Frederick would also keep school administrators from seeking legal refuge in cases where they overreact and over-regulate student speech under the aegis of zero tolerance policies, limiting administrators’ ability to use the qualified immunity doctrine. See id. Finally, notes the Alliance, a decision for Frederick may force school administrators to rethink their strategies and prevent them from continuing to pursue the goal of “drug free” schools “in unproven, ineffectual ways.” Id. at 12.
At issue in this case is the delicate balance between the First Amendment rights guaranteed by the Constitution and the duty of public school officials to maintain order and create a positive educational environment for their students. According to the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” However, the Supreme Court has qualified students’ right to free speech in public schools. Whether Frederick’s rights were violated when he was disciplined for displaying a banner with the words “Bong Hits 4 Jesus” hinges on the interpretation and application of the Tinker line of cases, in which the Supreme Court delineated the limits of student free speech. Additionally, whether Morse, as a school administrator, is entitled to qualified immunity depends on the court’s interpretation of past court decisions that “shield government actors from personal liability and suits arising out of their official actions,” unless their conduct violates “clearly established statutory or constitutional rights which a reasonable person would have known.” Brief for Petitioner at 35.
Students have a right to free speech outside the educational environment; however, school officials have the right to limit student speech in an educational setting.
The District Court and the Ninth Circuit Disagree
Frederick sued Morse in federal district court for violating his First Amendment rights. The district court found that there was no First Amendment violation, and if there was, Morse’s qualified immunity prevented any personal liability from attaching. Petition for Writ of Certiorari at 11. The court stated that under Bethel School District No. 403 v. Fraser, 478 U.S. 576 (1986), “a public school can regulate speech that it reasonably interprets as ‘plainly offensive’ because such speech ‘might undermine the school’s basic education mission.’” Id. at 8. In deciding to dismiss Frederick’s claim, the district court reasoned that Frederick’s decision to display the banner in plain view of other students contravened the school’s mission to deter illegal drug use. If Frederick was violating school policy while under the school’s authority, then Morse had the right and duty to discipline him. Id.
On appeal, the Ninth Circuit found that Morse violated Frederick’s right to freedom of speech when she took his sign and punished him for displaying it within visual range of the student body during school hours. The court’s reversal was based on the application of precedent set by the student speech cases Tinker, Fraser, and Kuhlmeier. Tinker stands for the proposition that schools may regulate student speech that can potentially disrupt schoolwork and discipline. Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). Fraser held that school officials may proscribe vulgar, lewd, indecent, obscene, or plainly offensive language. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Finally, Kuhlmeier held that school officials may regulate any speech that is reasonably perceived to be sponsored by the school. Hazlewood School District v. Kuhlmeier, 484 U.S. 260.
According to the Ninth Circuit, the district court incorrectly applied Fraser’s plainly offensive standard in Frederick’s case. Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006). A narrow interpretation led the Ninth Circuit to conclude that Fraser only applies to student speech of a sexual nature and thus did not provide legal precedent for Frederick’s case. Id. The Ninth Circuit also considered the school’s anti-drug policies insufficient to suppress speech that contradicted the school’s mission. Id. The court decided that the Kuhlmeier decision was inapplicable to Frederick’s case because he held his banner off school property during a non-curricular activity. Id. In Tinker, the Court held that the school’s prohibition against students expressing their opinion about the war by wearing black armbands was not permissible under the First Amendment if the student’s choice of expression did not substantially interfere with school discipline or the rights of others in the school. Id. In applying the rule set in Tinker to Frederick’s case, the Ninth Circuit focused on the fact that the banner displayed by Frederick did not significantly interfere with the school’s activities. Id. Thus, the Tinker trilogy did not provide Morse with a legal ground for her decision to punish Frederick for holding a “Bong Hits 4 Jesus” banner near the school. Since Frederick’s expression did not fit into any of the types of student speech which school officials are permitted to regulate, the First Amendment protected his actions. Id.
Morse: No Violation of Frederick’s Free Speech Rights
Morse argues that the Ninth Circuit’s analysis was erroneous. Her position is that, as a public school administrator, she had the right and duty to discipline Frederick under school policies, Supreme Court precedent, and federal law. Juneau School Board policies prohibit any assembly, public expression, or materials that advocate the use of illegal substances by minors. Petition for Writ of Certiorari at 3. Moreover, the Safe and Drug Free Schools and Communities Act requires that schools funded under the act “convey a clear and consistent message that . . . illegal use of drugs is wrong and harmful.” Id. at 14. Morse contends that case law does not support the court’s decision, arguing that the Tinker interest-balancing test does not control in this case. Id. In Tinker, students were making a statement considered a “lawful political opinion.” Id. Frederick, on the other hand, was advocating the illegal act of smoking marijuana, which should not be protected student speech in a school environment. Id.
According to Morse, the court’s reasoning was also flawed in another way. Morse argues that the Ninth Circuit’s rigid adherence to the three categories of student speech that may be regulated under the Tinker-Fraser-Kuhlmeier line of cases ignores the fact that most student speech cases do not clearly fall into those three categories. Categorization has been especially difficult in cases questioning the constitutionality of pro-drug messages. Id.at 15. Morse contends that the difficulty inherent in categorizing student speech has led courts to reach a consensus that regulating pro-drug student speech is permissive because it contradicts basic school missions (e.g., promoting healthy lifestyles for their students). Id. The court in Kuhlmeier arguably supports Morse’s position: “[A] school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug use or alcohol use.” Id.
Morse also disputes the Ninth Circuit’s factual findings. Brief for Petitioner at 2–8. She challenges the court’s assertion that Frederick was not on school property when he held up his sign. Id. She claims that permitting students to leave their classrooms during school hours to participate in viewing the Olympic torch relay made this a school-sponsored educational event, despite the existence of several corporate sponsors. Id. at 3. Also, the school participated in the torch relay by having its teachers supervise the area around the school, while the school band played and the school’s cheerleaders greeted the relay’s torch-bearers. Id.
Frederick: Morse Violated First Amendment Free Speech Rights
Frederick’s arguments focus more on the facts of this case, distinguishing it from those in which the Supreme Court found it proper for student speech to be regulated. Frederick’s position is that holding up a sign across the street from school property is not speech that can be regulated by an administrator: he was absent from school on the day of the relay, he displayed his sign off school grounds, and he was accompanied by non-students. Moreover, he contends, the school was not an official sponsor of the event, and the banner display did not cause any disruptions to the educational environment. Brief in Opposition of Certiorari at 5. Even if Frederick had displayed his sign during a school-sponsored activity, Frederick points out that Tinker prohibits the suppression of student speech if it is not sufficiently disruptive of the educational environment. Brief for Respondent at 9–10.
In Fraser, the court held that student speech that was lewd, indecent, offensive, or sexually explicit could be regulated by a school official. Id. at 13. Frederick’s sign did not contain any such language; thus, Frederick argues that Fraser does not support Morse’s decision to limit Frederick’s freedom of speech by tearing down his banner. In Fraser, the student made his remarks at a school-sponsored event, before a captive audience. Here, Frederick maintains that he was not at a school-sponsored event and his audience was not captive. Unlike in Fraser, concludes Frederick, his display did not cause any disruption in the school environment. Id.
Finally, Frederick asserts that Khulmeier does not control this case because it only applies to regulation of school-sponsored speech. Id. at 15. The Khulmeier courtheld that “where a school sponsors student speech or where student speech might reasonably be seen as bearing the ‘imprimatur of the school,’ restrictions on the student speech are permissible so long as they are ‘reasonably related to legitimate pedagogical concerns.’” Id. In Khulmeier, students wanted to publish articles about divorce and teenage pregnancy in the school’s newspaper. Articles published by the school newspaper were clearly school-sponsored; also, the newspaper bore the imprimatur of the school since it was part of the school’s curriculum, bore the school’s name on its banner, was predominantly funded by the school district, was subject to pre-publication review, and the principal was seen as the publisher. Id. The Court’s decision to uphold the school’s right to censor student-written articles was based on the school’s need to ensure “that the views of the individual speaker are not erroneously attributed to the school.” Id. Frederick argues that his expression was private speech that could not reasonably be perceived as being sponsored by the school. Therefore, Kuhlmeier should not control this case. In sum, Frederick argues that “this is not a student speech case because [he] was not subject to the school’s authority when he was told to take down his banner.” Id. at 33. The Tinker trilogy does not control because none of the cases deal with off-campus drug references by a student.
Qualified Immunity depends on the reasonability of the official’s mistake.
Qualified immunity limits the liability of government actors who make reasonable mistakes while exercising their official duties. Brief for Petitioner at 36. However, an official whose “conduct violates ‘clearly established’ constitutional rights of which a reasonable person would have known” will be personally liable for his actions. Id. The key question for the application of immunity in Morse’s case is whether a reasonable official in her shoes would have known that her actions were violating Frederick’s rights. Respondent’s Brief at 37.
Morse Argues for Qualified Immunity
Morse points to the court’s holding in Melley: “If officers of reasonable competence could disagree on the lawfulness of the conduct, then immunity should be recognized.” Brief for Petitioner at 35. If the two lower courts could not agree on whether her actions violated Frederick’s First Amendment rights, then the court should arguably deem her actions to be reasonable and grant her qualified immunity. Morse claims that if she violated Frederick’s rights, it was a result of a “reasonable, on the spot judgment to enforce her school board’s long-standing common place rule . . . [that] specifically prohibits any assembly or public expression that . . . advocates the use of substances that are illegal to minors.” Brief for Petitioner at 39. She claims that Frederick’s absence from school on the day of the torch relay was irrelevant since school policies make students who participate in school-approved events subject to school discipline. Id. By attending and participating in the torch relay viewing, Frederick was submitting himself to the authority of the school. Morse, however, overlooks that Frederick was not on school property and was not participating in the relay with other students; instead, Frederick was off school property with non-students.
Morse is against the Ninth Circuit’s decision to subject principals attempting to enforce school policies to personal liability because doing so does not leave enough room for error for officials making on-the-spot decisions in high-paced school environments. Id. at 39. Juneau’s policies are reflective of those at the majority of schools across the nation. Id. at 40. If the Ninth Circuit decision is upheld, it could pose a big dilemma for school officials across the nation. Many officials may be unable or unwilling to regulate speech they deem harmful and against school policy unless it causes a disruption in the school environment, for fear of being subjected to personal liability.
Morse also argues that the Ninth Circuit’s rigid approach to immunity is contrary to the position taken by prior courts. Id. In Fraser, the court stated that “schools should be accorded a certain degree of flexibility” and in Tinker the court stated that the First Amendment rights of public school students must be applied in light of the special characteristics of the school environment. Petition for Writ of Certiorari at 21. Thus, the decision to deny a school principal qualified immunity is a departure from past court decisions dealing with similar cases. The Ninth Circuit’s assertion that Frederick’s “clearly established rights” were violated and that immunity should be denied is unjust. The Supreme Court has held that “if judges . . . disagree on a constitutional question, it is unfair to subject governmental actors to money damages for picking the losing side of the controversy.” Id. at 24.
Frederick Argues Against Qualified Immunity
Frederick maintains that under the facts of this case and precedent set by prior court decisions, Morse is not entitled to qualified immunity. Respondent’s Brief at 36–41.The test used by the Ninth Circuit to determine whether Morse was eligible for qualified immunity was established in Saucier v. Katz, 533 U.S. 1904. The Saucier test asks three questions: (1) Do the alleged facts show that the government actor violated a constitutional right? (2) Was the constitutional right in question clearly established at the time of the alleged violation? (3) Would it be clear to a reasonable official that her conduct was unlawful? Brief for Petitioner at 43. Although Morse claims that the Ninth Circuit misapplied the Saucier test, Frederick maintains that Saucier is good law and was correctly applied by the court. Respondent’s Brief at 36–41. Morse herself admits that she was aware of the Tinker-Fraser-Kuhlmeier line of cases, and Frederick explicitly reminded her of his First Amendment rights at the time of the incident. Id. at 42. Thus, Frederick concludes that despite the law being clear to both parties, Morse chose to violate Frederick’s First Amendment rights anyway. Id. at 44. Frederick further argues that no reasonable official in Morse’s shoes could have thought that approaching a student standing on private property with non-students, confiscating his banner, and later punishing him was in accordance with First Amendment law. Id. at 36–41, 44. Finally, Frederick contends that school policy does not immunize Morse from personal liability under the facts of the case. Id. at 42–43.
With students’ First Amendment rights and the rights of school administrators to maintain a positive educational environment at stake, this decision will have an important impact on the continued development of the Supreme Court’s student free speech doctrine. A decision for Frederick will uphold the current limits of the Supreme Court’s student speech precedent, only permitting administrators to regulate student speech that is plainly offensive, school-sponsored, or substantially disruptive. This will appease student advocates who argue against added limitations and favor a doctrine that allows students to voice their opinions, even on controversial topics. On the other hand, a decision for Morse will add another limitation to student free speech rights, favoring school administrators, government officials, and their supporters, all of whom argue that it is important to regulate student speech that broaches controversial topics that have a high potential to cause a disruption in the educational environment.
- Morse v. Frederick: "Bong Hits 4 Jesus" banner; Student free speech in public school, Supreme Court Times
- Morse v. Frederick (06-278), American Civil Liberties Union
- “Bong Hits 4 Jesus” Student Speech Case: With Kenneth Starr Seeking High Court Review of the Ninth Circuit Decision, is Someone Blowing Smoke?, by Julie Hilden (Sep. 18, 2006)