It began with nonsense. "Bong hits 4 Jesus," the banner proclaimed. But the principal took it to advocate smoking marijuana, and she took the banner away from a student and punished him. Now it's a Supreme Court case, testing the boundaries of high-school students' freedom of speech and raising questions about character education in a free society with public schools.
Representing Principal Deborah Morse and the Juneau, Alaska, school board, Kenneth W. Starr argued that Morse had the right to discipline student Joseph Frederick for what she deemed his advocacy of drug use merely because it "disrupted" the school's anti-drug message. Starr did not claim that the event at which the banner was unfurled -- an Olympic Torch relay -- was focused on that message. Rather, he argued that Frederick's message disrupted the school's message simply by disagreeing with it and violating a school-board policy against pro-drug speech. The school's message was that illegal drugs are bad -- and because of the importance of this message, according to Starr's main brief, messages contrary to it did not have to be tolerated at school-sponsored activities. (The connection between the school and the torch relay is weak enough that a decision supporting Frederick's punishment would undermine the constitutional protection of a wide range of student speech off school grounds.)
Oral arguments were heard at the Supreme Court last week, and a transcript, some highlights of which follow, is available on the court's website.
Starr did not ask the court to overturn its ruling in Tinker v. Des Moines School District, in which it famously said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," but that disruptive speech could still be punished. Instead, he argued that disruption need not be disruption of the orderliness necessary for teaching and learning: Disrupting an anti-drug message by encouraging drug use could count too.
But if disrupting a school's anti-drug message by disagreeing with it can be punished, what about disagreeing with other messages a school may endorse? Suppose, Justice Ruth Bader Ginsburg asked, a school has a pro-war message -- can it prohibit anti-war expression, such as the black armband John Tinker wore back in 1965 to protest the Vietnam War? No, said Starr: That is political speech. But "Bong hits 4 Jesus" was -- or at least the principal thought it was, which was good enough for Starr -- "an encouragement of the drug culture."
But as Chief Justice John Roberts pointed out, school districts take positions on a wide variety of political questions. Drug use can be distinguished from these in that encouraging the use of illegal drugs is not the same as supporting a change in the law to make them legal. But according to Starr's main brief, the "basic educational mission" that the suppression of Frederick's speech supported was that of "promoting a healthy, drug-free lifestyle." And schools take a wide variety of positions on the lifestyles students ought to embrace.
Suppose a school takes the position that teenagers ought not to have sex. It might claim that a student who tells his friends about methods to prevent pregnancy and disease while being sexually active disrupts its "basic educational mission" of promoting a healthy, moral, sexually abstinent lifestyle. Or suppose a school board believes that condemning premarital sex as immoral is unhealthy. That board might claim that a student who advocates abstinence on moral grounds disrupts its "basic educational mission" of promoting a healthy attitude toward sex.
Freedom to discuss important personal choices is almost as important as freedom to discuss political questions -- perhaps more important, especially in high schools, most of whose students are not allowed to vote but do have to make important choices about the kinds of lives they want to live.
High schools have a legitimate role in character education, as Chief Justice Roberts pointed out, and it is reasonable for them to teach their views on drugs, sex and other matters of morality. But in a free society, character education must have as its overriding goal helping students develop as free, responsible men and women. Being free and responsible means considering the reasons for one's choices, not adopting unthinkingly every aspect of the way of life prescribed by the local school board. It means being willing and able to state one's views and defend the choices one has made. And it means knowing one's rights and knowing that a free society will respect them.
As silly as Frederick's banner was, he did get one thing right. According to his lawyer's brief, when Morse confronted him, he quoted Mr. Jefferson on free speech. The principal doubled his suspension. And that sent a message far more disruptive than any banner Frederick could have held.
Alexander R. Cohen's column appears Fridays in The Cavalier Daily. He can be reached at acohen@cavalierdaily.com.
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