LAW & EDUCATION
Student Expression: Beyond “Bong Hits”
By Martha McCarthy, ph.d.
The Supreme Court in 2007 was asked to review two significant student expression decisions rendered by the Ninth Circuit. The Supreme Court recently reversed one of these rulings in Morse v. Frederick, holding that school authorities could discipline a student for displaying a banner with “Bong Hits for Jesus” when students were released from their high school to cross the street and see the Olympic torch relay. The Supreme Court recognized the special circumstances in public schools and held that students can be disciplined for expression reasonably viewed as promoting illegal drug use.
The second Ninth Circuit decision addressed an equally important issue that remains unresolved. This case, Harper v. Poway Unified School District, focused on the authority of school personnel to censor expression that is demeaning toward others. The Ninth Circuit upheld a California school district’s ban on students wearing t-shirts with disparaging messages about homosexuality, including “Be Ashamed, Our School Embraced What God Has Condemned” and “Homosexuality Is Shameful ‘Romans 1:27.’” This school had a history of conflicts pertaining to sexual orientation, and teachers felt that the phrases on the shirt were inflammatory. After Harper refused to change his shirt, he was kept in the office where he completed his work. There was no disciplinary action, but Harper challenged the ban on wearing the shirt. The appeals court relied on the second prong of Tinker v. Des Moines (1969), finding that the derogatory statements collided with the rights of others. While many lower courts have relied on Tinker’s disruption standard (prohibiting student expression that is linked to a disruption of the educational process), this is the first federal appellate court that has based its decision in a free expression case primarily on Tinker’s prohibition on expression that intrudes on the rights of others. The appeals court held that the shirt at issue infringed on others’ rights in the most fundamental manner, because students in public schools should be protected from attacks based on “a core identifying characteristic, such as race, religion, or sexual orientation.” The court rejected the assertion that injurious slurs interfering with the rights of others cannot be barred unless they also are disruptive. In 2007, the Supreme Court vacated the Ninth Circuit’s decision with instructions for the appeal to be dismissed as moot because the district court had entered a final judgment dismissing the claims. Thus, the Supreme Court did not address the merits of the case, leaving resolution of these sensitive issues for another day.
Given the important role of public schools in transmitting fundamental values, including respect and civility toward others, it might follow that the Supreme Court will uphold an anti-harassment provision that protects vulnerable groups of students from ridicule by classmates. But how to balance these important interests against competing free expression rights presents a significant challenge that the Supreme Court may try to avoid at least for a while longer.#
Martha McCarthy is Chancellor’s Professor and chair of Educational Leadership and Policy Studies at Indiana University.
