Did Prince Write that Sign?

To have a laugh one day, Joseph Frederick held up a banner while the Olympic torch passed him by in Juneau, Alaska with the message, "Bong Hits 4 Jesus." This being across the street from his school, during school hours, the principle rushed over, grabbed the banner, tore it up, and gave the high school senior a 10 day suspension. So he sued the principle claiming violation of 1st amendment right to speech.

The district court agreed with the principle, the 9th circuit agreed with the student, and the Supreme Court heard arguments on the case about a week ago.

Student speech is not a novel topic in the Court, and the most direct precedent to this case is Tinker v. Des Moines. There, the school suspended kids wearing black arm bands to protest the Vietnam war. The Court held that students still enjoy certain first amendment protection. Recognizing a school's need to maintain order, the Court said that the school can prevent speech when such speech is disruptive. Black armbands were not disrupting any lessons.

In a recent column, Marci Hamilton writes:

Why shouldn't schools be able to effectively discourage illegal drug or alcohol use, smoking, promiscuous sex, profane speech, and violence? The Motion Picture Association of America screens movies for children under such categories; surely, schools can make similar judgments in their guardian-like role as parens patriae.

...the slippery slope here is the one that is going to persuade many fine school administrators to find other lines of work. If the court rules that the school's actions in this case cross the First Amendment line, then school administrators are going to be advised to err on the side of permitting a wide swath of student attention-grabbing, inappropriate speech, even if it directly undermines legitimate school policies. This turns each principal into Sisyphus, constantly rolling the rock of civility and wholesomeness up the hill only to have it roll back down, again and again.

Schools certainly can discourage drug use. But I don't understand how Hamilton's hope that schools can censure student opinion on the subject will even help the drug-resistance policy. Silencing the other side of the debate often strengthens it--especially when it is an illicit activity that teenagers are being told by authority figures to avoid.

Far better the debate of drug use be out in the open...as it is very often in Alaskan referendums. An honest debate about whether marijuana should be legal seems a perfectly civic oriented discussion that the 1st amendment would envision.

Many arguments on the school's side focus on drug-use and propose that "disruptive" speech can be that which runs counter to a major school theme, and because pot-use is illegal, the school can prevent posters/shirts/etc that advocate the activity.

But, in Tinker, it was a major school policy was to promote patriotism and service (ie-not draft dodging). Thus, the black armbands in Tinker were a rebellion against the school's policy just as a a poster advocating drug use.

Illegality is often used as a potential differentiator--the Principle can censure a sign reasonably understood to advocate illegal drug use. Speech about some civic/political point is one thing, so the argument goes; speech about drug use is not as deserving of protection. This is a problematic line, though. Many civic minded discussions are precisely about what should and should not be legal. In any event, speech about drug use is far different from passing out drugs or using drugs on school property.

All the above said, though, we cannot ignore the amazing need to allow teachers control within their classrooms. We would be robbing our children's learning if we allowed their classmates to disrupt the learning environment at will, claiming 1st amendment protections.

In my mind, the focus ought never come off of "distraction." The 9th Circuit made this point in its decision in Frederick, noting that in other contexts, the bong banner may have been a distraction to schooling and could be removed. Distraction should be a context driven concept. Some students might be able to talk about the merits of legalized/illegal marijuana while the mention of a drug, for others, might cause eruptions of shouting.

In deciding whether a speech incident was disruptive, courts should defer to teachers, principles, the community, and then common sense.

In Frederick, the student could not have been disrupting class because class was not going on, and the parade was not school sponsored (rather, it was Coca-Cola sponsored). On the facts, I tend to side with Frederick. Then again, district courts decide facts and this one sided with the school.