Free-Speech Case
Divides Bush and
Religious Right
By LINDA GREENHOUSE.
NYTimes on the Web, March 18, 2007
WASHINGTON, Mar. 17 -- A
Supreme Court case about the free-speech rights of high school students, to be
argued on Monday, has opened an unexpected fissure between the Bush
administration and its usual allies on the religious right.
As a result, an appeal that asks the justices to decide whether school officials
can squelch or punish student advocacy of illegal drugs has taken on an added
dimension as a window on an active front in the culture wars, one that has
escaped the notice of most people outside the fray. And as the stakes have
grown higher, a case that once looked like an easy victory for the government
side may prove to be a much closer call.
On the surface, Joseph Frederick’s dispute with his principal, Deborah Morse, at
the Juneau-Douglas High School in Alaska five years ago appeared to have little
if anything to do with religion — or perhaps with much of anything beyond a
bored senior’s attitude and a harried administrator’s impatience.
As the Olympic torch was carried through the streets of Juneau on its way to the
2002 winter games in Salt Lake City, students were allowed to leave the school
grounds to watch. The school band and cheerleaders performed. With
television cameras focused on the scene, Mr. Frederick and some friends unfurled
a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”
Mr. Frederick later testified that he designed the banner, using a slogan he had
seen on a snowboard, “to be meaningless and funny, in order to get on
television.” Ms. Morse found no humor but plenty of meaning in the sign,
recognizing “bong hits” as a slang reference to using marijuana. She
demanded that he take the banner down. When he refused, she tore it down,
ordered him to her office, and gave him a 10-day suspension.
Mr. Fredericks’s ensuing lawsuit and the free-speech court battle that resulted,
in which he has prevailed so far, is one that, classically, pits official
authority against student dissent. It is the first Supreme Court case to
do so directly since the court upheld the right of students to wear black arm
bands to school to protest the war in Vietnam, declaring in Tinker v. Des
Moines School District that “it can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate.”
The court followed that 1969 decision with two others during the 1980s that
upheld the authority of school officials to ban vulgar or offensive student
speech and to control the content of school newspapers. Clearly there is
some tension in the court’s student-speech doctrine; what message to extract
from the trio of decisions is the basic analytical question in the new case,
Morse v. Frederick, No. 06-278. What is most striking is how the two
sides line up.
The Bush administration entered the case on the side of the principal and the
Juneau School Board, which are both represented by Kenneth W. Starr, the former
solicitor general and independent counsel. His law firm, Kirkland & Ellis,
is handling the appeal without a fee. Mr. Starr and Edwin S. Kneedler, a
deputy solicitor general who will present the government’s view, will share
argument time on Monday. The National School Board Association, two school
principals’ groups, and several antidrug organizations also filed briefs on the
school board’s side.
While it is hardly surprising to find the American Civil Liberties Union and the
National Coalition Against Censorship on Mr. Frederick’s side, it is the array
of briefs from organizations that litigate and speak on behalf of the religious
right that has lifted Morse v. Frederick out of the realm of the
ordinary.
The groups include the American Center for Law and Justice, founded by the Rev.
Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an
organization based in Arizona that describes its mission as “defending the right
to hear and speak the Truth”; the Rutherford Institute, which has participated
in many religion cases before the court; and Liberty Legal Institute, a
nonprofit law firm “dedicated to the preservation of First Amendment rights and
religious freedom.”
The institute, based in Plano, Tex., told the justices in its brief that it was
“gravely concerned that the religious freedom of students in public schools will
be damaged” if the court rules for the school board.
Lawyers on Mr. Frederick’s side offer a straightforward explanation for the
strange-bedfellows aspect of the case. “The status of being a dissident
unites dissidents on either side,” said Prof. Douglas Laycock of the University
of Michigan Law School, an authority on constitutional issues involving religion
who worked on Liberty Legal Institute’s brief.
In an interview, Professor Laycock said that religiously observant students
often find the atmosphere in public school to be unwelcoming and “feel
themselves a dissident and excluded minority.” As the Jehovah’s Witnesses
did in the last century, these students are turning to the courts.
The briefs from the conservative religious organizations depict the school
environment as an ideological battleground. The Christian Legal Society
asserts that its law school chapters “have endured a relentless assault by law
schools intolerant of their unpopular perspective on the morality of homosexual
conduct or the relevance of religious belief.”
The American Center for Law and Justice brief, filed by its chief counsel, Jay
Alan Sekulow, warns that public schools “face a constant temptation to impose a
suffocating blanket of political correctness upon the educational atmosphere.”
What galvanized most of the groups on Mr. Frederick’s side was the breadth of
the arguments made on the other side. The solicitor general’s brief
asserts that under the Supreme Court’s precedents, student speech “may be banned
if it is inconsistent with a school’s basic educational mission.”
The Juneau School Board’s mission includes opposing illegal drug use, the
administration’s brief continues, citing as evidence a 1994 federal law, the
Safe and Drug-Free Schools and Communities Act, which requires that schools, as
a condition of receiving federal money, must “convey a clear and consistent
message” that using illegal drugs is “wrong and harmful.”
Mr. Starr’s main brief asserts that the court’s trilogy of cases “stands for the
proposition that students have limited free speech rights balanced against the
school district’s right to carry out its educational mission and to maintain
discipline.” The brief argues that even if Ms. Morse applied that precept
incorrectly to the facts of this case, she is entitled to immunity from suit
because she could have reasonably believed that the law was on her side.
The religious groups were particularly alarmed by what they saw as the
implication that school boards could define their “educational mission” as they
wished and could suppress countervailing speech accordingly.
“Holy moly, look at this! To get drugs we can eliminate free speech in
schools?” is how Robert A. Destro, a law professor at Catholic University,
described his reaction to the briefs for the school board when the Liberty Legal
Institute asked him to consider participating on the Mr. Frederick’s behalf.
He quickly signed on.
Having worked closely with Republican administrations for years, Mr. Destro said
he was hard pressed to understand the administration’s position. “My guess
is they just hadn’t thought it through,” he said in an interview. “To the
people who put them in office, they are making an incoherent statement.”
The solicitor general’s office does not comment publicly on its cases. But
Mr. Starr, by contrast, was happy to talk about the case and the alignment
against him of many of his old allies. “It’s reassuring to have lots of
friends of liberty running around,” he said in a cheerful tone, adding: “I
welcome this outpouring because it will help the court see that it shouldn’t go
too far either way.”
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