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Morse v. Frederick:  A disappointing result

By Robert S. Sargent, Jr.
web posted July 2, 2007

Here's a short summary for those who don't know about Morse v. Frederick, decided by the Supreme Court last Monday, June 25:  Joseph Frederick, a student at Juneau-Douglas High School  in Juneau, Alaska, displayed a banner at a high school event on which was written:  "Bong Hits 4 Jesus."  The principle, Deborah Morse, regarded the banner as promoting illegal drugs and confiscated the banner and suspended the student.  After the Ninth Circuit held that the principle violated the student's First Amendment's rights, the Supreme Court overturned and held that his rights were not violated.  Chief Justice Roberts wrote for the majority.

Roberts began by reviewing past cases that dealt with students and their Constitutional rights.  The most famous is Tinker v. Des Moines School District.  In this 1969 case, the Court held that students had a Constitutional right to wear black arm bands to school to protest the Vietnam War.  Roberts wrote that, as in Tinker, students do not "‘shed their constitutional rights to freedom of speech of expression at the schoolhouse gate.' Then citing Bethel School Dist. v. Fraser, 1986, he wrote, "At the same time, we have held that ‘the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.'"  Then referring to Hazlewood School Dist. v. Kuhlmeier, he continued, "[And] that the rights of students ‘must be applied in light of the special characteristics of the school environment.' … Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging drug use."

In other words, sometimes students have constitutional rights, and sometimes they don't.  In this case they don't, in Tinker they did.  In the future?  Well, the courts will decide.  All Chief Justice Roberts did in his opinion was close the doors to students promoting illegal drug use (so long as school authorities make a reasonable decision that they did so). Tinker allows students to protest foreign policy; Fraser does not allow students to make lewd, sexual speeches if it is against the school rules; Kuhlmeier allows schools to edit student newspapers in some cases;  Morse does not allow students to promote illegal drug use.  As each new student crisis comes up, the courts will act as a referee between students and school boards.

It all could have ended right here.  Either the Constitution protects students of all Constitutional rights or it doesn't.  Let's go back and look at Justice Hugo Black's dissent in Tinker.

Does the Constitution protect all United States citizens of their rights?  If a teenager yells and swears at his parents over an argument about sex he's had with his girlfriend, and his parents discipline him by grounding him for two weeks, does the Constitution protect his "freedom of speech?"  Of course not.  Hugo Black addressed that question:  "The truth is that a teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with him a complete freedom of speech and religion into a Catholic church or Jewish synagogue.  Nor does a person carry with him into the United States Senate or House, or into the Supreme Court, or any other court, a complete constitutional right to go into those places contrary to their rules and speak his mind on any subject he pleases.  It is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases.  Our Court has decided precisely the opposite."

(By the way, in his dissent, [1969] Justice Black had an amazingly accurate prediction of where all this court interference would head:  "…if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.")

Clarence Thomas, while he joined the majority in Morse v. Frederick, nevertheless wrote a separate opinion scolding the Court for ruling so narrowly.  He first tackles Tinker:  "…the standard set forth in Tinker v. Des Moines School District is without basis in the Constitution."  He writes that "…the First Amendment was not originally understood to permit all sorts of speech."  Then, after giving sources to back up that point, he goes on to show how historically, the First Amendment "…does not protect student speech in public schools."

In his beautifully worded opinion (Daniel Henninger wrote in last Friday's Wall Street Journal:  "Justice Clarence Thomas…proceeded to write one of the most compelling essays I've seen on the decline and fall of American public education.  I would happily hand out Justice Thomas's opinion on street corners."), Justice Thomas shows why this should have been more broadly decided, striking down Tinker.  In a nutshell:  "I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don't—a standard continuously developed through litigation against local schools and their administrators."

Oh, would ‘twere Roberts a Thomas. ESR

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.


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