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learning.now: at the crossroads of Internet culture & education with host Andy Carvin

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March192007

Supreme Court Case Could Realign the Limits of Student Free Speech

Attention First Amendment geeks: there’s an important case being heard this week at the US Supreme Court about student free speech rights. And even though the case has nothing to do with the Internet, it’s quite likely that the resulting ruling could affect school districts trying to punish students for online activities taking place beyond the schoolhouse gate.

Yesterday, the Supreme Court heard oral arguments in a case being referred to as Frederick v. Morse. The case pits a former high school student against his school district over an incident that took place just over five years ago outside of Alaska’s Juneau-Douglas High School. That day, students were released from class to watch the Winter Olympics torch relay pass through town, adjacent to the school’s campus. Across the street from the school, 18-year old Joseph Frederick thought it would be fun to mess with the TV coverage surrounding the event. Just as the relay was to pass the spot where he was standing - and the cameras turned towards him - Frederick and his friends unveiled a banner with the words “Bong Hits 4 Jesus” emblazoned across the front.

The school’s principal, Deborah Morse, was horrified. She ran across the street, crumpled up the banner, and suspended Frederick for five days. Frederick claims he then tried quoting Thomas Jefferson, to which she doubled his suspension time, though Morse disputes this reason. Frederick appealed to the school district to reverse the suspension, arguing that the incident took place off of school grounds and didn’t interfere with the educational process, one of the key standards used regarding student free speech rights. The district upheld the suspension, so Frederick took the district and Principal Morse to court.

In the first round of the legal saga, a district court rejected Frederick’s claims and concluded his suspension was justified. Frederick appealed to the Ninth Circuit, and they reversed the decision unanimously. In their decision, the Ninth Circuit Court noted that school officials acknowledged that Frederick’s actions, while arguably juvenile and offensive, didn’t interfere with the educational process. The court quoted school officials on the matter:

Display of the banner would be construed by many, including students, district personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use which is inconsistent with the district’s basic educational mission to promote a healthy, drug-free life style. Failure to react to the display would appear to give the district’s imprimatur to that message and would be inconsistent with the district’s responsibility to teach students the boundaries of socially appropriate behavior.

In other words, Frederick’s actions promoted a political message the school found to be counter with their own policies, thus prompting the principal to act, even though the banner didn’t interrupt educational activities per se. Given this situation, the Court summarized the question at hand this way:

the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly “No.”

The appellate court went on to cite several key Supreme Court precedents regarding student speech rights. In perhaps the most famous precedent, Tinker v. Des Moines, the justices ruled that students could not be punished for on-campus political speech that ran counter to the government’s political position - in this case, it was protest against the Vietnam War through the wearing of black arm bands. A second case, Bethel School District v. Fraser, affirmed a school’s right to prevent a student from giving an offensive speech - specifically because it was sexually offensive rather than politically offensive. And in a third case, Hazelwood School District v. Kuhlmeier, the court ruled that a school could prevent students from publishing a politically controversial article in the school newspaper because the paper in question was edited and published as part of a classroom activity.

Kuhlmeier does not control the case at bar, however, because Frederick’s pro-drug banner was not sponsored or endorsed by the school, nor was it part of the curriculum, nor did it take place as part of an official school activity. Kuhlmeier might apply had Frederick insisted on making his “Bong Hits 4 Jesus” banner in art class, but that is not what the record shows. His display took place out of school while students were released so that they could watch a Coca-Cola and Olympics activity.

The appellate court concluded that Frederick’s case was most comparable to the Tinker decision:

Tinker requires that, to censor or punish student speech, the school must show a reasonable concern about the likelihood of substantial disruption to its educational mission. [The school district] conceded that the speech in this case was censored only because it conflicted with the school’s “mission” of discouraging drug use. That reason fails to meet the bar. [The school district’s] conduct violated Frederick’s First Amendment rights.

And now, the US Supreme Court is hearing the case. It comes as no surprise that the ACLU is backing Frederick, now a 22-year-old English teacher in China. Interestingly, though, he’s receiving legal backing from conservative Christian groups, who are concerned that allowing his punishment could lead to a slippery slope in which student’s religious rights are curtailed in school.

No matter which way the Supreme Court rules, it’s bound to have an impact on schools that have punished students for online activities taking place outside of school grounds. For example, last May I wrote about a school district in Illinois that was forcing students to sign a pledge promising not to post inappropriate content on the Internet at home or face disciplinary consequences. Across the country, other schools have sought to punish kids for posting inappropriate content, including messages and materials condoning drug use. In each of these cases, the act of publishing content online took place outside of school grounds, and didn’t necessarily interfere with the educational process. Rather, they interfered with and undermined schools’ anti-drug messages.

Sounds a lot like that kid in Alaska with his bong banner. And if that kid wins the day at the Supreme Court, school districts around the country will be forced to reconsider what online behavior is considered punishable and what isn’t. -andy

Filed under : Policy

Responses

I talked about this case in my classroom yesterday. Some of my students agreed with the higher court’s ruling that the student was within his rights under the first amendment others argued that because the student was at a school sponsored function, the principal had a right to suspend him. One of the students brought up an interesting question though…What if the banner had not alluded to drugs, but to another controversial issue like Gay marriage? Would the principal had acted in the same way?

I am currently enrolled in a “Technology in Education” course for my teaching certificate. We have been studying the social implications of the internet and how it affects the educational process. A huge topic in today’s classroom is the internet and the position in which the school system is placed. Controlling student’s behavior on the internet can not be regulated by teachers alone, it is the parent’s responsiblity to educate the child to be respectful. All children, at some point, are going to push their limits, but censoring everything a child posts on the internet is an invasion of personal freedom. Though one may not agree with every opinion a child has, it is their right to voice it. If the comments are posted off school grounds and on sites that are not produced by the school system, then I feel the school has no say in what a student expresses. This is just another tactic at government intrusion into the privacy of the home. The school system may feel that taking action against what is deemed as inappropiate behavior serves as a model for good behavior, but what happens in the home must be preserved as private.

After reading the article and making a summation based off of the rulings presented by the district and 9th district courts, one could be left to side on both sides. However, even though this incident did take place off of school grounds, it was still under the umbrella of a school function. At my school, all in-school rules apply to school function trips, regardless of where the site is located. Students must be held accountable for their actions, and when other student’s safety is at risk, then it is no longer an isolated incident. I agree 100% with the action of the principal in the suspension, because despite their reasoning for portraying the message “Bong Hits 4 Jesus”, stating that he was quoting Thomas Jefferson, it was justifiably wrong, affected multiple people, but most of all was inappropriate in a school functioned trip. I know that we are all human and to control other peoples’ opinions is not only impossible but morally wrong, schools’ must serve as an educational forum for not only subject areas but for a place to receive good ethical practices that model appropriate behavior in the “outside” world. Students must know at an early age what actions are appropriate and which are not, and those that are not have consequences. The same goes for the justice system when laws are broken. If we do not teach children this then the decisions they make could have irreversible and long-term consequences.

From what I understand schools are responsible for students from the moment they step outside their front door to head to school from the moment students walk back through their front door at the end of the day. Did this student go home then come back with the banner? It was a school event, but school was let out, so if the student went home first I would say the school is no longer responsible for the student..

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