The controversy involves a free speech claim that seems frivolous and meaningless versus the school's ability to punish a message that discredits its ability to denounce drugs as being bad and the war on drugs as being good. If Frederick wins, then individuals possess the right to exercise free speech even if the speech is less than meaningful; if the school wins, then the school can limit any speech that the school believes interferes with its "educational mission."
The arguments seem quite comical. According to Dana Lithwick at Slate:
Starr insists that "Bong Hits 4 Jesus" promotes drugs. Justice Ruth Bader Ginsburg asks whether a sign that said "Bong Stinks for Jesus" would be more permissible. Souter asks whether a simple sign reading "Change the Marijuana Laws" would also be "disruptive." Starr says that interpreting the meaning of the sign must be left to the "frontline message interpreter," in this case, the principal. Then Starr says schools are charged with inculcating "habits and manners of civility" and "values of citizenship." Yes, sir. In the first six minutes of oral argument Starr has posited, without irony, a world in which students may not peaceably advocate for changes in the law, because they must be inculcated with the values of good citizenship.
Chief Justice John Roberts wonders why students should be allowed to set the classroom agenda when teachers are trying to teach Shakespeare and Pythagoras. Starr says that in the Vietnam protest case, the school tried to "cast a pall of orthodoxy" by banning student protest. Whereas, he suggests—again without a whiff of irony—that students should be able to offer no dissenting opinions here because drugs, alcohol, and tobacco are bad....
Scalia begins to bogart the argument [from Frderick's lawyer] at this point and asks whether a school that held an anti-drug rally in the gym would have to permit a student to wear a button that says, "Smoke pot. It's fun." Mertz repeats that student protest can't be "disruptive." Scalia retorts that "undermining what the school is trying to teach" is pretty disruptive. Kennedy asks about a student sporting a button that says, "Rape is fun." Mertz says students may not advocate violent crime. This sets Scalia off again. "So, they can only advocate non-violent crime?" he snorts. "Like, 'Extortion is profitable?' " He adds that "this is a very, very, with all due respect, ridiculous line."
On an interesting side note, religious groups are siding with the ACLU and the student. The reason: there is another case that worked its way through the Courts that focused on whether or not a student, who openly defined himself as being very religious, could wear a shirt that was anti-homosexual but pro-religious. According to SCOTUS Blog:
The case involves an incident in April 2004 when a sophomore at Poway High School in Poway, Calif., a community of about 50,000 located north of San Diego, was suspended for a day for wearing a T-shirt with an anti-homosexual message on it. The youth, Tyler Chase Harper, believes that homosexuality is contrary to the teachings of the Bible, his attorneys told the Court. His T-shirt, on the front, read: "I will not accept what God has condemned." On the back, it said, "Homosexuality is shameful. Romans 1:27." [He wore the shirt in the Day of Silence, which was meant to encourage tolerance for gays.]
His appeal contends that he was suspended after school officials told him that the message was inflammatory. His father was told later that only positive community messages from students were allowed under school policy. The youth has since graduated from high school, but his sister, Kelsie, is still a junior at the high school. Because of her brother's graduation, the appeal suggested that the case may be moot. But, on Friday, attorneys for the sister asked the Court to allow her to intervene to keep the appeal alive. The attorneys said she desires to engage in the same kind of expression that led to her brother's suspension.
The Supreme Court vacated this decision, making the lower court's decision [The Ninth Circuit] null and void. The problem is that though Tyler Chase Harper graduated, his sister is still in the school and plans to deliver the same message via the t-shirt. In this case, you have student speech even though some find it tasteless versus a school's right to exclude messages that may disrupt the educational process (though there was no disruption at the school).
I am not sure on either decision. Any thoughts?
3 comments:
Great post! I heard about this yesterday and am similarly ambivalent. I believe that students should be allowed to express their opinions and disagree with administration, but the administration has to have some control over what students may wear/say/display in school because some statements can seriously disrupt the education process (so goes the argument for school uniforms). The case with the "Bong Hits for Jesus" seems to me to be more about the administration being publicly embarrassed. The fact that the whole school was standing on the street watching the Olympic torch was disruptive to the normal school day, and the addition of the sign didn't make it any more or less so. But I have trouble respecting the position of the sign holder because he was not making a statement that he strongly felt needed to be heard. He was just trying to cause trouble--he admitted that he chose the message not as a statement on religion or drugs but because he knew it would stir things up. I heard him quoted as saying that segregation was once legal and what if we were not allowed to protest that--I find that argument and many of the other analogies that you have listed ridiculous because we are not talking about segregation or rape or gay rights or any real issue at all, not even marijuana or Jesus. I understand that with his frivolous statement he is trying to set a precedent that would protect future free speech in school, should someone else actually have something to say. But I feel like the silliness factor is undermining his goal and forcing everyone to engage in hypothetical arguments that will solve nothing. I think cases of student free speech have to be handled case by case and that this attempt at some sort of blanket ruling that will allow students to say or display whatever they want, whether or not the message is meaningful, is not a worthy goal.
One of the issues in the Bong hits case is whether or not classroom rules should apply outdoors because the school let them out to see the event.
I often wonder if he held a sign that stated "Bong hits for Mom" to protest the restriction of drugs for treating illness or helping those with an illness.
And, while his speech was non-sensical and quite meaningless, it is still speech. A case by case basis may chip away the rights of students because, as Ken Starr demonstrated in the arguments, anything can be found disruptive, even constitutionally protected political speech. This leads straight to the slipperly slope argument.
White Lines for Krishna
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