It's a puzzlement. The Supreme Court agreed to hear a case from Alaska that didn't deserve its attention. The case stems from the punishment imposed upon a high school student for publicly unfurling a 20-foot banner that read: "BONG HITS 4 JESUS."
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What in the name of the First Amendment is going on here? The facts are not seriously in dispute: On Jan. 24, 2002, the Olympic torch was to be carried through the streets of Juneau on its way to Athens. The parade would pass by the Juneau-Douglas High School. Students were given time off to watch from the sidewalk.
At the climactic moment, young Joseph Frederick and his co-conspirators leaped to their feet from across the street. They had scarcely elevated their banner with its strange device before the high school principal, Deborah Morse, rushed into action. She lost her cool, tore down the banner, ordered Frederick to report to her office, and eventually suspended him for 10 days for publicly advocating the use of illegal drugs.
Naturally the lad sued for violation of his civil liberties. It's the American way. He lost at the trial level but won a resounding victory last March in the 9th Circuit. Judge Andrew J. Kleinfeld spoke for a three-judge panel of the court. The law on student speech, he said, "is so clear and well-settled that no reasonable government official could have believed the censorship and punishment of Frederick's speech to be lawful."
In this narrow field of First Amendment law, the chain of precedent goes back to the Tinker case of 1969. Three students in a public school in Des Moines wore black arm bands to signal their disapproval of the war in Vietnam. In a resounding 7-2 division, the Supreme Court upheld their right of free speech. Subsequent cases, involving a variety of student speech on school premises, have created an area of constitutional law of remarkable clarity.
Unlike these precedents, the pending case from Alaska offers not a single issue worthy of review in the high court. The "speech" at issue (1) was not on school premises, (2) did not disrupt a school function, (3) did not involve students wearing T-shirts with a scatological message, and (4) had nothing to do with school-sponsored publications. Young Frederick was not even cutting a class. He was doing what comes naturally to high-spirited teen-agers. I should know: Once upon a time I was on
Everything about this case is unsettling. Ms. Morse and the Juneau School Board are represented in part by Kenneth W. Starr, the former solicitor general. He's now a hired gun, to be sure, but even so: What's a nice guy like Ken Starr doing in a case like this? In his petition for review, he even asked for summary reversal!
Among the supporting briefs on behalf of the Juneau school board is a brief signed by William J. Bennett, a gentleman who has served the country ably as "drug czar" and secretary of education. Bill Bennett can't possibly believe that the 9th Circuit's "tortured application of the rules governing student speech will severely undermine our schools' ability to protect students from the grave dangers of drug abuse." Pish tush! He says the lower court's opinion "makes it difficult, if not impossible, for schools to address the cumulative effects of pro-drug advocacy." He must have been having a very bad hair day.
The National School Boards Association, for its part, whines that the 9th Circuit's opinion "creates an untenable chilling effect on the hundreds of thousands of administrators who are charged with maintaining order and discipline in our schools." Moreover, the opinion "promotes indecorous behavior by students." Well, mercy me! Indecorous behavior!
Bennett and Starr and other friends of the court who have filed supporting briefs are doubtless on sound ground in this respect: Teenage drug use, as they say, is indeed an "enormous national problem." They cite sobering statistics: "Twenty-one percent of eighth-graders have used drugs. Half of American high school students will have tried an illicit drug before they drop out or graduate." Sure, it's a problem.
But it is not a problem to be solved by trampling upon the First Amendment rights of teenagers blowing off steam on the cold streets of Alaska. I have no idea why the Supreme Court agreed to hear the school board's appeal in this pipsqueak case, but I know what the court ought to do with it now.
James J. Kilpatrick was a debater for nine years on "60 Minutes" and wrote the column "A Conservative View" for 28 years. He now follows the U.S. Supreme Court and writes "Covering the Courts."