Judge: School district within rights to take debated banner

Young man says he will appeal ruling on banner at Olympic Torch Relay

Posted: Friday, June 06, 2003

Juneau school officials did not violate a student's rights by confiscating a banner during last year's Olympic Torch Relay, a federal judge has ruled.

But the former student, Joseph Frederick, will appeal the decision to the San Francisco-based 9th U.S. Circuit Court of Appeals, said his attorney, Douglas Mertz.

Frederick, then an 18-year-old senior at Juneau-Douglas High School, was suspended for 10 days for his role in displaying a banner Jan. 24, 2002, that read "Bong hits 4 Jesus" and for his actions afterward, school officials have said. The Juneau School Board upheld the suspension, but then-Superintendent Gary Bader shortened it.

Frederick sued the School Board and JDHS Principal Deb Morse for violating his rights to free speech under the federal and state constitutions. He wanted the court to say the school district had violated his rights, remove the suspension from his school records and stop the district from taking the same kind of action again. He asked also for unspecified monetary damages.

But U.S. District Judge John W. Sedwick ruled May 29 that students watching the torch relay were in a school-sponsored event. As such, school officials had wider discretion to control Frederick's actions and were entitled to regulate speech that encouraged drug use, he said. The banner was displayed on Glacier Avenue near JDHS.

Frederick said in affidavits that he was trying to be funny by displaying the banner, and he wasn't advocating drug use. He said he wanted to communicate that free speech means saying what you want to. But school officials said "bong hits" could be construed as a reference to smoking marijuana through a device known as a bong.

Sedwick turned down one of the School Board's arguments: that the banner's meaning was so unclear that it wasn't protected speech.

Sedwick instead said school officials could reasonably perceive the banner as advocating drug use. The judge added that Frederick's intended meaning or the way some students understood the banner were not relevant. Sedwick said in his ruling: "... Frederick's statements directly contra- vened the board's policies relating to drug abuse prevention."

The case didn't go to trial. Frederick and school officials instead asked Sedwick to issue a judgment in their favor based on written arguments.

Sedwick also ruled that Morse and the School Board would have been immune from monetary damages stemming from the alleged violation of Frederick's rights.

Attorney Mertz said the case would be appealed because it deals with an important principle.

"The broader principle that we think is very dangerous in (Sedwick's) decision seems to be a government official can decide what your speech means and suppress it or not suppress it depending on the official's interpretation, even if you had no such intent yourself," Mertz said.

The School Board's attorney in the case, David Crosby, declined to comment. But School Board President Chuck Cohen said the court decision vindicates school officials.

"The decision reaffirms the principle that school administrators and faculty have the authority and obligation to enforce community standards in the schools," Cohen said.

• Eric Fry can be reached at efry@juneauempire.com.

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