My Turn: 'Bong Hits' deserves Supreme Court test

Board's decision to challenge ruling shows respect for law

Posted: Wednesday, May 24, 2006

Recently, several people have suggested that the Juneau School District's decision to seek a Supreme Court review of the 9th U.S. Circuit Court of Appeals' ruling in the "Bong Hits 4 Jesus" case is either disrespectful of students' First Amendment rights or an inappropriate expenditure of district resources. The Juneau School Board believes that it is neither.

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Annual surveys of Juneau-Douglas High School students confirm that a high percentage have smoked marijuana or used other illegal drugs, some on a regular basis, by the time they leave high school. As a condition of receiving federal grant funds, the district is required to maintain a consistent message that use of drugs is harmful and illegal. Our anti-drug message is a critical part of the district's health curriculum. And like most school districts, we attempt to exclude pro-drug messages from the educational environment, whether that message appears on clothing or some other medium.

The "Bong Hits" banner was displayed at a school-sponsored event, during school hours, and while the students were under school supervision. A respected federal judge concluded that the district's policy against pro-drug messages is inseparable from its basic educational mission. After reviewing the Supreme Court's rulings on the First Amendment in the public school setting and lower-court decisions dealing with the authority of school officials to suppress pro-drug and alcohol messages, the judge concluded that the principal had the right, if not the duty, to confiscate the banner and ruled in favor of the district.

The 9th Circuit recognized that the fact that Mr. Frederick was standing on a sidewalk did not exempt him from the school's disciplinary authority or confer upon him the First Amendment rights normally accorded to adults in public places, but held that the district may not discipline a student for displaying a pro-drug message unless it can prove that classroom activities were disrupted. The 9th Circuit also held that the school principal could be held liable for damages for enforcing the district's policy restricting pro-drug messages. These rulings strike at the heart of the district's mission to teach healthy lifestyles.

The Supreme Court has held that lewd and vulgar language is inconsistent with the basic educational mission of the schools and may be sanctioned. The court has never had occasion to consider whether school administrators may sanction pro-drug messages for the same reason. The decisions of the lower courts, however - with the notable exception of the 9th Circuit in the Frederick case - tend to support school administrators. We think that this question is important enough to warrant Supreme Court clarification. We are not alone. The National School Boards Association and the American Association of School Administrators strongly support the need for Supreme Court clarification.

Although the district could incur some additional liability for the plaintiff's attorney's fees by proceeding, the district carries insurance for such risks. Whether we proceed to the Supreme Court or return to district court to resolve the plaintiff's damages claims, the district will incur some additional costs. If the Supreme Court reverses the 9th Circuit, however, the district and our insurance company will be saved the expense of further district court proceedings and will be relieved of any obligation to pay plaintiff's attorney's fees.

The School Board considered this matter very carefully. Our legal counsel contacted leading law firms specializing in Supreme Court practice. Without exception, these firms agreed that this is an important case that should receive serious consideration by the Supreme Court. Several were so confident of the prospects for the court taking the case that they offered to represent the district pro bono or for a reduced fee. Ultimately, the district decided to retain Kenneth Starr on a pro bono (no-fee) basis. Politics played no part in our decision. Starr is a former circuit court judge and solicitor general of the United States. We selected him because he is one of the most experienced, successful Supreme Court practitioners in the country.

Under our Constitution, the Supreme Court, which frequently reverses the decisions of the 9th Circuit, is the ultimate authority on the meaning of the First Amendment. By seeking review of the 9th Circuit's ruling, the School Board is honoring the rule of law, not showing disrespect for it.

• Phyllis Carlson is president of the Juneau School Board.

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