Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Linda Greehouse has a column in the NY Times about the "Bong Hits 4 Jesus" case, titled Frederick v Morse, which is set for oral argument today. This is the case where a student was suspended for putting up a banner that said "Bong Hits 4 Jesus" during a parade that was not at the school and not a mandatory event for students to attend. In particular, Greenhouse points out that there is a rather unusual coalition filing briefs on behalf of the student:
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."
These groups are primarily interested in how much authority is given to school administrators to decide what can and can't be said by students, particularly outside of the classroom itself and in a variety of ways. Interestingly, the school board in the case is being represented by Ken Starr and the Bush administration is arguing on that side as well, so this places both Starr and Bush a bit at odds with their usual allies.
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."
These fears are not idle or unjustified given the long string of cases with different outcomes involving how much authority schools, both secondary and universities, have to determine what kinds of speech are acceptable. I've written about many of these cases over the last few years. And what is disturbing about this case is that the school is making an argument for much broader authority than has existed previously under Tinker and other cases:
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.
I agree with him. Under Tinker, speech can only be suppressed if it hinders or undermines the school's educational mission; that is, if the expression of that speech will cause such disruption that it impairs the smooth functioning of the school. Even that standard is troublesome to me because it allows others to exercise a heckler's veto, but if the school has its way in this case it would allow schools to censor speech not because it disrupts the school's educational mission, but even if it conflicts with or disagrees with something the school teaches. That is simply unacceptable and far too broad.
Update: for links to the briefs filed in the case, both by the two sides and by amici, click here.
Comments
Free-Speech Case Divides Bush and Religious Right
"As the Jehovah's Witnesses did in the last century, these students are turning to the courts. The briefs from the conservative religious organizations ..."
-----------
Jehovah's Witnesses and freedom of speech.
They have won 37 of their 46 U.S. Supreme Court cases, assuring us all of freedom of speech and assembly and equal protection under the law.
The sad irony is that the Watchtower Society *daily* abuses the human rights of thousands of its members. It denies current members the right of free speech by forbidding them to speak to former members, even close family members.
And it denies former members their right of freedom of worship by refusing to allow them to leave the religion with dignity, should they come to disagree with Watchtower's practices or doctrines.
Danny Haszard expert witness on the Jehovah Witness http://www.freeminds.org
Footnote:
[Jehovah's Witnesses believe that Jesus already had his second coming "invisibly" in the year 1914 and is working exclusively through them.]
Posted by: Danny Haszard | March 19, 2007 10:23 AM
Hey Ed, you were first up on google news with this article :D Congrats!
Posted by: uafbum | March 19, 2007 10:29 AM
"she is entitled to immunity from suit because she could have reasonably believed that the law was on her side."
Is this an actual reason you can get immunity from legal action? Because you really thought what you were doing was not against the law? Or am I reading this wrong?
Posted by: jba | March 19, 2007 10:30 AM
I read about this yesterday and the article didn't make it clear if the students were observing the parade from the school grounds during the school day or if they were in attendance off school premises. Of course this was a critical piece of information that was missing from the article that I read.
I was thinking that if it was the latter as you're saying it is, not only was the principal out of line for suspending the kids, but I'd be 100% in support of prosecuting her for vandalism/destruction of property.
Posted by: Dr X | March 19, 2007 10:33 AM
Government officials receive a limited immunity for acts that arise out of their official duties. However, this immunity is waived if the law is so clearly decided that the official knew or should have known that the act was illegal. The idea is to permit honest mistakes when the law isn't clear (remembering that the governmental body itself can still be sued or enjoined), yet hold individual lawmakers personally responsible for flaunting the law.
Posted by: W. Kevin Vicklund | March 19, 2007 11:01 AM
What the post refers to jba is what is known as qualified immunity. A government can be sued in their official or individual capacity or both. Official capacity defendants act on behalf of the entity they serve and judgment against them is the same as judgment against the government entity. On the other hand, a judgment against someone in their individual capacity would not require the government to pay the judgment and execution could be made against the individuals personal assets. However, a government official is entitled to qualified immunity from being held personally liable when they were acting within the scope of their duties and were not acting in derogation of clearly established law. I believe that is probably what is being referred to when discussing immunity.
Posted by: rst | March 19, 2007 11:22 AM
Dr X wrote:
If I remember correctly from reading the briefs in the case several months ago, it took place at a parade for which the students had been dismissed from school to attend (it was the olympic torch passing through town). While it was during the school day, it was not on school grounds nor was it a school event. They were released from school so they could attend, but attendance was not mandatory, they were not required to sit with their class, and so forth.
Posted by: Ed Brayton | March 19, 2007 11:47 AM
Ed,
Thanks. The article I read was fairly useless considering the reporter or editor didn't seem to realize that the location and circumstances of attendance have everything to do with understanding what is at issue in the case.
Dr. X.
Posted by: Dr X | March 19, 2007 11:59 AM
The District Court found that the students' attendance at the parade, while not on school property, was a school event. Clearly the school officials have an obligation to maintain discipline at a school event (such as field trip or away athletic event), even if it is not on school property.
Posted by: Alan | March 19, 2007 12:04 PM
What about Jesus and Bong Hits? Besides Jesus himself,how do we know if he wanted people who support bong hits in our out of jail, or in this case, in our out of school.
Posted by: Ken Deeds | March 19, 2007 12:53 PM
W.Kevin, rst,
Thanks! That makes much more sense than:
'well, I thought it was ok',
"oh, all right then, never mind"
Posted by: jba | March 19, 2007 1:06 PM
So...bong hits are legal now?
Posted by: LB Williams | March 19, 2007 1:08 PM
My own group, Atheist Hemp Advocates for a Softer Bill of Rights, wants to file a friend of the court brief, but can't decide for which side.
Posted by: lowlights | March 19, 2007 1:32 PM
This is such a great case. I've discussed it at length in both my Con Law I and Con Law II courses. In fact, I changed the facts a bit and made it into one of the final exam essays for Con Law II last fall.
To me, one of the most interesting issues is one that seems to have gotten little attention: when, if ever, can speech by a student off school premises that may impact school functions or activities be regulated by the school? Clearly, field trips and similar off-campus activities are fair game for regulation. But what about here, where the connection between the school and the activity is more tenuous? What implications might the Court's decision have for Internet expression -- say on a My Space page -- that creates disorder or disrupts school activities? There is little evidence in this case of any actual disruption of school activities; sooner or later, though, the Court is going to have to confront these kinds of questions.
The second question presented goes to the principal's qualified immunity. The standard here is fairly well established, even if it is difficult to apply in many cases: whether the official (here, the principal) violated clearly established constitutional or statutory rights, rights that would have been known to a reasonable official in this official's position. Frankly, I think the Court is quite troubled by the Ninth Circuit's conclusion that the principal was not entitled to immunity here. I doubt you'll get nine Justices to agree about whether this student had a clearly established constitutional right to speak as he did. It seems a real stretch to hold a principal to this standard, given the facts of this case.
The oral argument transcript should be up soon. I'm looking forward to reading it.
Posted by: Dan | March 19, 2007 2:23 PM
Ed,
The problem with this case and the "extension" of the school's power is that there really isn't an extension of school powers.
I don't recall the case, sorry, but there is one where a teacher was verbally assaulted by two students on a Saturday at a shopping center. The students were identified and punished by the school. They argued that the event occurred outside of normal school hours, off of school grounds ... they lost.
Also most states, I don't know about all, hold schools responsible if students are harmed, etc., from door-step to door-step. Depending on Alaska's laws, and the time when this occurred, the school could legitimately argue that they were still responsible for him and his actions.
Finally, didn't this incident take place right in front of the school with the student standing across the street from the school in a crowd of mostly students and faculty?
Don't get me wrong, I disagree with the idea of holding a school responsible for what little Jimmy did six blocks away, or if Mr. Ratbreath is called names at a shopping center (odds are good he was a crappy teacher). I'm just pointing out that the precedent is there in many (if not most/all) states and, if you hold the school responsible, you have to also grant them powers to enforce.
Personally I love this case ... any time the Religious right joins forces with the ACLU against the Bush administration? [does a little dance] ... I wonder what Gribbit has to say ... or did his head just explode?
Posted by: dogmeatib | March 19, 2007 2:28 PM
I'll love to read about the outcome of this SCOTUS case.
Visit: OsiSpeaks.com or OsiSpeaks.org
Posted by: KYJurisDoctor | March 19, 2007 2:51 PM
..remember,,jesus loves you !!and i use too love bongs !!
Posted by: berkeley carter mills | March 19, 2007 3:31 PM
dogmeatib -
The case you site is quite different. This one is about a kid who was completely outside the context of school (it seems to me that the only real argument is whether or not it was a school activity). The case you site is very different. I am not familiar with that case, but I have a teacher friend who dealt with a similar situation. He was being harrased by a couple of students while at home, or walking in the neighborhood. They would stop by his house, yelling at him while he worked in his yard and shouted at him when he was out walking.
At the least, the harasment at home, could have been legaly actionable. The other might have been. But rather than call the police and involve the courts, it was dealt with through the school. The kids involved were suspended and legal action threatened if it didn't stop. It was in the students best interest for the school to handle it.
Look at it from a slightly different angle. If you verbaly assault your boss or co-worker, outside the workplace, you can be punished by your employer, for creating a hostile work environment, even though it didn't happen at work. The same is true of schools. Kids cannot harass or threaten school staff outside of school, any more than the employees of a business can.
Posted by: DuWayne | March 19, 2007 3:57 PM
DogMeat and DuWayne--the hypotheticals you've created and the cases you cite are not analagous to Bong Hits for Jesus. In your cases, the action is question is harassment of a school official. In Bong Hits, it was a statement that did not harass or threaten anyone. It may have caused a lot of snickering, but a bit of general disruption is not the same thing as targeted harassment.
Harassment cases are different from free speech cases. If a student states that she is against abortion and tries to convince others of her righteousness, that is one thing (and should be permitted provided that it doesn't otherwise disrupt class).
Trying to convince your fellow students that your principal will go to hell because she had an abortion is a different matter.
The latter is designed to intimidate and it must be handled differently because of the educational setting.
Finally, citing the employer/employee context isn't very useful because there is no govermental actor involved (asuming that it is a private employer). An employer can fire anyone for any reason (except for prohibited reasons such as race, religion, etc.). In contrast, a student at a public school is forced to be there by law and is being taught by governmental actors.
Posted by: David C. Brayton | March 19, 2007 5:33 PM
Links to the oral arguments are now available via Scotusblog:
http://www.scotusblog.com/movabletype/
Posted by: kehrsam | March 19, 2007 5:54 PM
Does this mean that a school could ban students from expressing the opinion (in an extracurricular club or a school newspaper, for example), that the current drug laws are unnecessarily harsh and should be restricted? Couldn't this decision, in fact, be used to forbid students from ever expressing any opinion that runs contrary to any official government policy?
Posted by: Ebonmuse | March 19, 2007 6:08 PM
Ebonmuse wrote:
That is exactly the danger. Suppressing speech that disrupts the school's ability to function smoothly is quite different from suppressing speech that is contrary to what the schools teach.
Posted by: Ed Brayton | March 19, 2007 7:12 PM
What I don't get is why the fundies still don't understand that the republican party is all about statist control and the Fortune 500. Surely they don't think Bush pushed for No Child Left Behind because he wanted a smaller government.
I worry about Christianism a lot less than Ed and some of the others here, but that is not because I am a Christian: It's because my fellow religionists, as much as I love them, are absolutely clueless about politics. They are only dangerous when a mob comes in handy. The rest of the time, the torch and pitchfork thing is pretty useless, albeit entertaining.
Posted by: kehrsam | March 19, 2007 8:18 PM
I wasn't trying to say that the teacher harassment case was analogous, simply that it (and other similar cases) do(es) establish that the school has some jurisdiction outside of the normal school grounds/hours.
Posted by: dogmeatIB | March 19, 2007 8:20 PM
David C. Brayton -
My point was that the case dogmeatib was citing was not in any way analogous to the one referenced by the post. My point was that harassment of a teacher, whether in or out of school, is an issue that can and should be dealt with by the school. Whereas the case of the bong tokes for Jesus banner is a completely different situation. It did not involve any interaction with the school or anyone from the school. My apologies for not being more clear with my comment.
Finally, citing the employer/employee context isn't very useful because there is no governmental actor involved (assuming that it is a private employer). An employer can fire anyone for any reason (except for prohibited reasons such as race, religion, etc.). In contrast, a student at a public school is forced to be there by law and is being taught by governmental actors.
I don't believe that is entirely true. At least under some state laws it is not. I know in Michigan, to fire someone, one must have cause. Unless things have changed recently, the signs that explain your rights as an employee are clear that one cannot be fired without cause. Layoffs are a completely different story. Creating a hostile work environment is a legitimate cause to fire or otherwise discipline an employee, whether that actions that cause a hostile work environment were in the workplace or somewhere else.
That specifically is quite similar to the principles that apply to students harassing teachers or other school officials, outside of school. Students can be disciplined by the school, for such actions, whether they happen on school grounds, or anywhere else. And the punishment can go as far as expulsion. Kids are required by law to go to school. Schools are not required by law to allow students into their schools.
That said, I never said that the two were exactly the same. The point there was that there are similar principles involved. My apologies, but I often equate school and employment situations. To a strong degree they should and have many similarities. By the very nature of compulsory education, there are inherent differences between education and employment - at least in regards to public schools. I would guess (only guess) that private schools can place restrictions on certain behaviours, outside school, as a condition of a student's enrolment in that school. I seem to recall there being a code of conduct, outside school, that was enforced by the parochial school I spent part of elementary school attending. It was geared more towards the high school populations than my age group, but applied to all of us. I will admit though, that I may be confusing it with eligibility requirements for extra-curricular activities - restrictions that are also acceptable for the same activities in public schools (i.e. one can be thrown off the honors choir - or any other extra-curic activity, after being caught smoking, completely outside the context of school or school activities). But I believe that the code of conduct was enforceable as a condition of enrolment itself.
Posted by: DuWayne | March 19, 2007 9:04 PM
Interesting discussion. But it appears to me that the reliance placed on the
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." (emphasis added)
is inapposite in this case. It clearly is intended to regulate the speech of the schools, as a condition for receiving federal money. It does not appear to purport to regulate speech of students. Anywhere. On school property or off.
Starr's cited cases appear to stand for the proposition that a school can regulate student speech that may be disruptive while the students are on school property, but that does not mean that the schools can regulate speech that is not in accordance with or is contrary to the school's speech. There's a difference.
Posted by: raj | March 20, 2007 6:20 AM
Ebonmuse wrote:
One of the more interesting things not reported by journalists, at least for me, was that the Ninth Circuit opinion in the case mentions two or three times that Alaska in particular has a different legal situation regarding marijuana (the Alaska Supreme Court has ruled unanimously that the it is the burden of the state to demonstrate a legitimate interest in making marijuana consumption illegal for adults, because of an explicit right to privacy in the state constitution) and has had several referenda on whether to criminalize/legalize it for personal use, so you could make a very legitimate claim that the students banner made a political statement. I find that to be a pretty interesting piece of information in the circumstances, but I haven't seen it in any articles about the case.
Posted by: nicole | March 20, 2007 7:56 AM
The following website summarizes over 300 court cases involving children of Jehovah's Witness Parents:
DIVORCE, BLOOD TRANSFUSIONS, AND OTHER LEGAL ISSUES AFFECTING CHILDREN OF JEHOVAH'S WITNESSES
http://jwdivorces.bravehost.com/
Posted by: Jerry | April 3, 2007 11:39 AM