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Should the court grant the petition, the outcome could hinge on whether the banner disrupted the educational process, whether watching the relay was a school-sponsored event, and whether Mr. Frederick — who had yet to enter school property that morning because his car had been stuck in the snow — was officially on campus.
The court of appeals found that the incident occurred while Frederick was a student and school was in session and that, accordingly, the case was to be resolved by applying “student speech” doctrine under Tinker, Fraser, and Kuhlmeier.7 App. 1a, 5a-6a. The court further assumed that Principal Morse correctly interpreted the phrase “BONG HITS 4 JESUS” as “express[ing] a positive sentiment about marijuana use.” App. 6a-7a. The panel ruled, however, that the district court incorrectly applied the “plainly offensive” standard from Fraser.
One amicus, Drug Policy Alliance, argues that we should analyze this not as a student speech case, but simply as speech on a public sidewalk. That would make the case analogous to a student having an after-school job at a video store that rents out Cheech and Chong tapes, or a student driving a car on public streets with a “Bong Hits 4 Jesus” bumper sticker. Were this factually such a case, the law would be easy indeed, but the facts established by the submissions on summary judgment make this a student speech case. Even though Frederick never got to school that morning, that was only because he got stuck in his driveway because of the snow. School had started and the students were released to watch the Olympic torch pass. And even though supervision of most students was minimal or nonexistent, the school could have supervised them more if it chose to, as it did with the gym class and perhaps the pep band and cheerleaders. Frederick was a student, and school was in session.Again, it's conceivable that the Supreme Court could conclude otherwise and affirm the Ninth Circuit on the basis that Frederick was not technically on school property, but that wouldn't make any sense. Frederick was a student under school supervision at a school-sponsored event. If the fact that he was not on school property was dispositive, the same principle should apply to field trips.
Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly “No.”This conclusion largely turns on the Ninth Circuit's reasoning that two Supreme Court cases finding against students in speech cases were distinguishable. The first is Bethel School District No. 403 v. Fraser, in which the Court held that schools may suppress vulgar, lewd, indecent, obscene, and plainly offensive student speech at school-sponsored functions, even absent a showing of disruption. The Ninth Circuit interpreted Fraser narrowly to cover only sexual speech. The second case is Hazelwood School District v. Kuhlmeier, in which the Court held that students' school-sponsored or curricular speech can be suppressed when it conflicts with messages the school intends to send. The Ninth Circuit concluded that this case does not involve school-sponsored or curricular speech, and therefore that Kuhlmeier does not apply.
posted by Blazecock Pileon at 9:51 AM on August 28, 2006