March 18, 2007
By LINDA GREENHOUSE
WASHINGTON, March 17 A Supreme Court case about the free-speech rights of high school students, to be argued on Monday, has opened an unexpected fissure between the Bush administration and its usual allies on the religious right.
As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray. And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.
On the surface, Joseph Fredericks dispute with his principal, Deborah Morse, at the Juneau-Douglas High School in Alaska five years ago appeared to have little if anything to do with religion or perhaps with much of anything beyond a bored seniors attitude and a harried administrators impatience.
As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, Mr. Frederick and some friends unfurled a 14-foot-long banner with the inscription: Bong Hits 4 Jesus.
Mr. Frederick later testified that he designed the banner, using a slogan he had seen on a snowboard, to be meaningless and funny, in order to get on television. Ms. Morse found no humor but plenty of meaning in the sign, recognizing bong hits as a slang reference to using marijuana. She demanded that he take the banner down. When he refused, she tore it down, ordered him to her office, and gave him a 10-day suspension.
Mr. Frederickss ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent. It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
The court followed that 1969 decision with two others during the 1980s that upheld the authority of school officials to ban vulgar or offensive student speech and to control the content of school newspapers. Clearly there is some tension in the courts student-speech doctrine; what message to extract from the trio of decisions is the basic analytical question in the new case, Morse v. Frederick, No. 06-278. What is most striking is how the two sides line up.
The Bush administration entered the case on the side of the principal and the Juneau School Board, which are both represented by Kenneth W. Starr, the former solicitor general and independent counsel. His law firm, Kirkland & Ellis, is handling the appeal without a fee. Mr. Starr and Edwin S. Kneedler, a deputy solicitor general who will present the governments view, will share argument time on Monday. The National School Board Association, two school principals groups, and several antidrug organizations also filed briefs on the school boards side.
While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Fredericks side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.
The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as defending the right to hear and speak the Truth; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm dedicated to the preservation of First Amendment rights and religious freedom.
The institute, based in Plano, Tex., told the justices in its brief that it was gravely concerned that the religious freedom of students in public schools will be damaged if the court rules for the school board.
Lawyers on Mr. Fredericks side offer a straightforward explanation for the strange-bedfellows aspect of the case. The status of being a dissident unites dissidents on either side, said Prof. Douglas Laycock of the University of Michigan Law School, an authority on constitutional issues involving religion who worked on Liberty Legal Institutes brief.
In an interview, Professor Laycock said that religiously observant students often find the atmosphere in public school to be unwelcoming and feel themselves a dissident and excluded minority. As the Jehovahs Witnesses did in the last century, these students are turning to the courts.
The briefs from the conservative religious organizations depict the school environment as an ideological battleground. The Christian Legal Society asserts that its law school chapters have endured a relentless assault by law schools intolerant of their unpopular perspective on the morality of homosexual conduct or the relevance of religious belief.
The American Center for Law and Justice brief, filed by its chief counsel, Jay Alan Sekulow, warns that public schools face a constant temptation to impose a suffocating blanket of political correctness upon the educational atmosphere.
What galvanized most of the groups on Mr. Fredericks side was the breadth of the arguments made on the other side. The solicitor generals brief asserts that under the Supreme Courts precedents, student speech may be banned if it is inconsistent with a schools basic educational mission.
The Juneau School Boards mission includes opposing illegal drug use, the administrations brief continues, citing as evidence a 1994 federal law, the Safe and Drug-Free Schools and Communities Act, which requires that schools, as a condition of receiving federal money, must convey a clear and consistent message that using illegal drugs is wrong and harmful.
Mr. Starrs main brief asserts that the courts trilogy of cases stands for the proposition that students have limited free speech rights balanced against the school districts right to carry out its educational mission and to maintain discipline. The brief argues that even if Ms. Morse applied that precept incorrectly to the facts of this case, she is entitled to immunity from suit because she could have reasonably believed that the law was on her side.
The religious groups were particularly alarmed by what they saw as the implication that school boards could define their educational mission as they wished and could suppress countervailing speech accordingly.
Holy moly, look at this! To get drugs we can eliminate free speech in schools? is how Robert A. Destro, a law professor at Catholic University, described his reaction to the briefs for the school board when the Liberty Legal Institute asked him to consider participating on the Mr. Fredericks behalf. He quickly signed on.
Having worked closely with Republican administrations for years, Mr. Destro said he was hard pressed to understand the administrations position. My guess is they just hadnt thought it through, he said in an interview. To the people who put them in office, they are making an incoherent statement.
The solicitor generals office does not comment publicly on its cases. But Mr. Starr, by contrast, was happy to talk about the case and the alignment against him of many of his old allies. Its reassuring to have lots of friends of liberty running around, he said in a cheerful tone, adding: I welcome this outpouring because it will help the court see that it shouldnt go too far either way.
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