Student Expression Rights Revisited
By Martha McCarthy, Ph.D.
On December 1, 2006, the United States Supreme Court agreed to review Morse v. Frederick, which will be its first student expression decision in almost 20 years. The Ninth Circuit ruled that the high school principal, Deborah Morse, was liable for violating Joseph Frederick’s clearly established free expression rights when she confiscated his banner with “Bong Hits 4 Jesus” and imposed a suspension. Frederick displayed the banner when he joined his friends who had been released from school to cross the street and watch the Olympic torch relay pass by.
Speculating regarding what the Court will do in its Frederick decisionis difficult because the current Court does not have a track record pertaining to student expression rights. Several approaches would allow the Court to render a narrow decision without reinterpreting First Amendment principles. The Court could vacate the appellate court’s finding of liability, reasoning that the law is not clearly established in this domain, given the range of lower court interpretations of student expression rights. The Supreme Court also could narrowly rule against Frederick by concluding that the banner promoted unlawful drug use, as Morse claimed. Courts generally have agreed that schools can discipline students for urging classmates to engage in unlawful conduct.
If the Supreme Court is inclined to rule in favor of Frederick, it could narrowly focus on the off-campus nature of the incident and the fact that Frederick had not yet been in school that day because of car trouble. Usually off-campus conduct is subject to less regulation; such expression must have a negative impact on the school, students, or staff members to be the basis for disciplinary action.
Assuming that the Supreme Court addresses the merits of the First Amendment claim, the outcome will likely depend on how the Court applies Tinker v. Des Moines Independent School District (1969) and Bethel School District v. Fraser (1986). In Tinker, the Supreme Court held that private student expression cannot be curtailed unless it poses a substantial disruption of the educational process or intrudes on the rights of others. In Fraser, the Court restricted the application of Tinker by allowing censorship of lewd and vulgar student expression that conflict with the school’s mission. If the Court broadly interprets the limitations imposed by Fraser on student expression,it might conclude that Frederick could be disciplined for his banner that interfered with the school’s mission of deterring illegal drug use. However, if it concludes that Tinker’s disruption standard governs this case, Frederick will likely prevail, as there was no evidence that his expression created a disruption or intruded on others’ rights. The Supreme Court’s deliberations are being closely watched as the Court may identify new legal principles governing student expression, and if so, the Frederick decision will have important implications for public schools.#
Martha McCarthy, Ph.D. is the Chancellor Professor, School of Education, Indiana University.
