More Than Student Rights on Trial

"In truth, every American should be concerned. Forget abortion rights. Forget the law of privacy or homosexuality. Forget student rights. George W. Bush may well have given us a chief justice who doesn't believe in any individual civil liberties."

Yesterday, the U.S. Supreme Court heard arguments in Morse v. Fredrick. [Legal briefs here.] It could well become a key case defining student free speech rights for the next generation; it also may have wider implications for the First Amendment rights of everyone under the yellow eye of Chief Justice John Roberts.

The case arose in 2002 when Joseph Frederick, an 18 year old high school senior at Juneau-Douglas High, and friends (including an army soldier on leave) suddenly unfurled a "14-foot banner proclaiming 'Bong Hits 4 Jesus''' as the Olympic torch was being carried by en route from Salt Lake City to Beijing. Apparently, Frederick et al. were in "hopes of attracting the attention of television crews covering the event" by displaying a "humorous, ironic" statement "that could be controversial."

Lucky thing for Frederick he hasn't chosen to go into writing "humorous, ironic" television marketing slogans for a living. (At the moment, he's teaching and studying in China.)

It seems that Frederick had been engaged in a running dispute with school officials over what he saw as his First Amendment rights; more specifically, he opposed efforts by the high school vice-principal to force Frederick to stand during the pledge of allegiance.

Unfortunately for the student, as the Olympics torch passed by high school principal Deborah Morse was standing nearby on school property. She saw the banner go up, crossed the street, and ordered Frederick and friends to take down the sign. When Frederick refused, citing his First Amendment rights, principal Morse then "grabbed and crumpled the banner" and later suspended Frederick from school for five days.

She doubled the suspension to ten days when Frederick protested the principal's action by "quoting Thomas Jefferson on free speech."

"How dare he?" one supposes principal Morse thought. Or maybe she said to herself, "Thomas Jefferson? Thomas Jefferson? Sounds like just another druggie to me."

Nasty little facts often have a way of clouding what otherwise might have been a clear legal issue. So it is here.

One debatable fact is whether Frederick's banner conveyed a message "encouraging" illegal drug use. Kenneth Starr, late of the over-cooked, over-budget Clinton investigation, says it did. But according to Chris Sherman of the Associated Press, at least some among "scores of students" who happened to be visiting Washington D.C. during oral arguments felt otherwise.
So, too, did the Court of Appeals, who found Frederick's message "vague and nonsensical."

Another factual dispute is whether the banner was "disruptive." By all accounts, Frederick himself was polite and respectful throughout the entire incident. (Not so the principal. Yet, no one seems to be wondering whether principal Morse's actions in crossing the street, seizing the banner, and tearing it apart was 'disruptive.' But that's the law for you.)

Perhaps the central factual argument is whether the Olympic torch-carrying event through the streets of Juneau was a "public event in a public place" or became the "equivalent of a school assembly" when the principal dismissed classes to encourage students to attend. On that hangs the difference between full constitutional rights protection for a student and the 'something less than full' protection school students are said to enjoy under our Constitution.

Accounts of the oral arguments in the Supreme Court yesterday (and a transcript here) suggest that whatever divisions of opinion the Court may have about Frederick's free speech rights, most justices seem ready to rule that Frederick cannot collect money damages from the school (via a judgment against the principal). Explains an early AP wire dispatch:

A clear majority seemed to side with Morse on one point, that she shouldn't have to compensate Frederick. A federal appeals court said Morse would have to pay Frederick because she should have known her actions violated the Constitution. [emphasis added]

The legal principle behind shielding school principals and other public officials from money damage awards even when they violate a citizen's constitutional rights is a late-era invention of the Supreme Court, courtesy of Nixon-appointee Lewis Powell and Reagan-appointee William Rehnquist, the latter whom we now know was himself brain-addled by a dependency on the psychotropic drug Placidyl.

Essentially, the doctrine comes down to this: a government official has "qualified immunity" from paying money damages (or, as invariably happens, sticking the government agency with the bill) if he violates a citizen's constitutional rights out of ignorance because the right had not yet been "clearly established" by a specific Supreme Court precedent.

Yes, Virginia, ignorance of the law is a defense. Just as long as you are a school teacher or other government employee.

Maybe this explains the "low levels of proficiency in American history and limited knowledge of our political system" so prevalent in today's high schools. Too many educators either don't know, or don't want to know, how our constitutional system works.

Linda Greenhouse identifies what may be the most disturbing implication in yesterday's oral arguments: the apparent predilection of Bush's new chief justice, John Roberts, to take a truly extreme position against the First Amendment. It's always dicey to reach any conclusions from oral remarks made by justices during oral arguments, but Greenhouse reports that Roberts showed a distinct desire to overturn the central case that reaffirmed First Amendment rights for students almost 40 years ago, Tinker v. Des Moines School District.

In Tinker, the court held that a school had violated the students' rights to wear a balck armband as a protest against the war in Vietnam.

The court’s leading precedent on student speech, a 1969 decision called Tinker v. Des Moines School District, “articulates a baseline of political speech” that students have a presumptive right to engage in, Mr. Starr said.

That was too far to the middle for the chief justice. “Presumably, the teacher’s agenda is a little bit different and includes things like teaching Shakespeare or the Pythagorean theorem,” he said, adding that “just because political speech is on the student’s agenda, I’m not sure that it makes sense to read Tinker so broadly as to include protection of that speech.” [emphasis added]

According to that early AP dispatch filed late yesterday, "Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion."

In truth, every American should be concerned. Forget abortion rights. Forget the law of privacy or homosexuality. Forget student rights. If Greenhouse is right, George W. Bush and the Republicans who enabled him over the past six years may well have given us a chief justice who doesn't believe in any individual civil liberties.

The First Amendment is the bedrock freedom preserved by our founding fathers. Without freedom of speech, press, assembly, religion, and the right to "petition" against grievances, the rest of the Bill of Rights have little practical meaning.

If Chief Justice Roberts really thinks that the Constitution doesn't protect "political speech" when it isn't on "the agenda" of a public school -- or Government in general, for that matter -- then far more is in danger than the freedom of school students.