Pubdate: Wed, 28 Mar 2007
Source: Daily Orange, The (NY Edu)
Copyright: 2007 The Daily Orange Corporation
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Author: Erin Curran
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STUDENT'S FREEDOM OF SPEECH TESTED BEFORE SUPREME COURT

When Joseph Frederick unfurled his homemade, 14-foot banner 
proclaiming "Bong Hits 4 Jesus" during an Olympic torch relay in 
Juneau, Alaska, in 2002, he started down a path paved with lively 
discussions of schools' control on student speech that led all the 
way to the Supreme Court March 19, 2007.

Frederick, then a high-school senior, was off school property when he 
hoisted the banner but was suspended for violating the school's 
policy of promoting illegal substances at a school-sanctioned event.

"In Alaska, the issue of drug possession is an active political 
question," said Michael Macleod-Ball, executive director of the 
American Civil Liberties Union of Alaska. "But what really matters 
here are students' speech rights. They have as much free speech 
rights as non-students."

A March ruling by the Ninth U.S. Circuit Court of Appeals sided with 
Frederick, claiming Juneau-Douglas High School principal Deborah 
Morse violated Frederick's freedom of speech. Morse is being 
represented by Kenneth Starr, the former special prosecutor who 
investigated President Bill Clinton in the Monica Lewinsky sex 
scandal. Starr, of the Los Angeles-based firm Kirkland & Ellis, took 
the case pro bono.

"What makes this case legally complex is the unusual mix of legal 
rights and social values at stake, and the challenging set of facts," 
said Mark Obbie, director of the Carnegie legal reporting program at 
the S.I. Newhouse School of Public Communications. "We have a 
collision of student speech, school discipline, drug control and 
religion, and those principles are mixed into a factual scenario 
that's ready made for law school hypotheticals for generations to come."

Issues of free speech in high schools were first considered by the 
Supreme Court in Tinker v. Des Moines. The 1969 decision, which 
concerned students who were suspended for wearing black armbands to 
protest the Vietnam War, ruled that a student's right to free 
expression should not be limited while in school or on school grounds.

Joel Kaplan, associate dean of graduate programs at Newhouse, said in 
civics classes, high school students are taught that freedom of 
expression is the foundation upon which political freedom stands.

"When someone holds up a sign that says, 'Bong Hits 4 Jesus,' what a 
perfect opportunity to have a discussion about why it's not a good 
idea to hold that sign - or maybe, why it is," he said. "That's why 
the First Amendment is the bulwark of our society."

The Bush administration has also involved itself in the case, arguing 
that public schools do not have to tolerate a message inconsistent 
with their educational mission. But this argument was rebuffed by one 
of the court's more conservative justices, Antonin Scalia. He told 
the administration's lawyer that he found the school principal 
Morse's argument, "very, very disturbing," on the grounds that 
schools could choose to define their educational mission so broadly 
as to suppress political speech and speech expressing fundamental 
student values, according to the Associated Press.

Conservative groups often allied with the administration are backing 
Frederick out of concern that a ruling for Morse would let schools 
clamp down on religious expression, including speech that might 
oppose homosexuality or abortion.

"LGBT folks and members of the religious right are both filing briefs 
on behalf of Frederick," said Macleod-Ball, executive director of the 
ACLU in Alaska. "Conservatives realize the Bush administration isn't 
going to be around forever, and they're afraid a liberal group down 
the road could try and take away their rights to free speech. Our 
position is that politics doesn't matter in this case."

The American Center for Law and Justice, founded by the Rev. Pat 
Robertson, warned in a brief filed by its chief counsel Jay Alan 
Sekulow that public schools "face a constant temptation to impose a 
suffocating blanket of political correctness upon the educational atmosphere."

"Because these students were participating in a public event, outside 
of school, they seem to be in the right," said Hanna Kinne, a member 
of the American Constitution Society at SU. "Additionally, the 
students' lawyer tried to offer a deal to the school, that instead of 
suing them for monetary damages, they would agree to drop the suit if 
the school brought in a panel to discuss free speech. The school 
stubbornly and foolishly denied that deal, in my opinion."

The court is expected to rule on the case in June.

"What a First Amendment advocate might find chilling in all of this 
is the notion that certain ideas and speech are supposedly disruptive 
to education," Obbie said. "Some of us think they're the whole point 
of an education."
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