New at Reason

March 21, 2007

High school students. Drug warriors. Bong Hits. Jesus. It's all in Jacob Sullum's latest column.

Comments

edna|3.21.07 @ 7:26AM|#

interesting connection- you know that ken starr has been involved in legalization of internet wine sales. i wonder how much his alcohol industry backing is the motivator for his pro bono work here...

|3.21.07 @ 8:33AM|#

There are some facts missing from the report that the Court will likely find germane. Was this a school 'event' taking place on school time? If it was, I fear that the case may not be as cut and dried as Jacob presents. The issue may hinge on whether or not the school, acting in loco parentis, had the authority to discipline a student that was in its care. (E.g., if the students are on a field trip, does the school have the power to discipline a student acting in a disruptive manner? I think the answer has to be 'yes'.)

Fun factoid not mentioned in Jacob's column: the "bong hits" student is now teaching math in China.

http://www.law.com/jsp/article.jsp?id=1174307781411

Insert your own China/civil liberties joke here!

|3.21.07 @ 8:34AM|#

Sorry -- teaching ENGLISH, not math. I've had too many bong hits/not enough coffee, apparently.

|3.21.07 @ 8:36AM|#

Since most of the guys who offer to sell me pot already look like Jesus, I'd say that this entire issue is moot. Jesus needs bong hits like Buddha needs another cheeseburger.

|3.21.07 @ 8:45AM|#

There are some facts missing from the report that the Court will likely find germane. Was this a school 'event' taking place on school time? If it was, I fear that the case may not be as cut and dried as Jacob presents. The issue may hinge on whether or not the school, acting in loco parentis, had the authority to discipline a student that was in its care. (E.g., if the students are on a field trip, does the school have the power to discipline a student acting in a disruptive manner? I think the answer has to be 'yes'.)

From what I understand about it, the thing was done during a school day, but the kids where allowed out to watch the torch-passing.

|3.21.07 @ 8:48AM|#

The issue may hinge on whether or not the school, acting in loco parentis, had the authority to discipline a student that was in its care. (E.g., if the students are on a field trip, does the school have the power to discipline a student acting in a disruptive manner? I think the answer has to be 'yes'.)
What if its during times in which school is in session, but the kids are given free time, such as during free time/lunch (especially schools who relase kids for free lunch)/break periods? Should schools jump on kid's asses then?

thoreau|3.21.07 @ 8:53AM|#

Yeah, I can see how this becomes a bit trickier if it's a field trip. The question is whether they were dismissed from school supervision (i.e. they could have done anything with their time, including stay home rather than go to the torch event) or whether this was a supervised field trip on school time (i.e. they were required to go, they couldn't just go home).

If it was a supervised field trip then the court could probably address a very narrow issue of whether the school can control what sort of banners you unfurl during school activities, and duck the bigger questions. OTOH, if it wasn't a supervised field trip, then more general free speech issues apply. I hate to stand up for school administrators determined to squash speech that they don't like, but there is a difference between unfurling a banner in the middle of class (or a class activity) and unfurling a banner on your own time.

Don't courts generally prefer to decide cases on small issues rather than big issues, on the grounds that the smaller issues usually render the bigger issues irrelevant?

|3.21.07 @ 9:09AM|#

Wow! That was great Jacob. I loved the "It's about time" bit. And I swear I actually heard that ubiquitous, stylus dragged across the record, sound effect (I wonder how many of us that react like fingers on a chalkboard to that there still are) when I read "Pat Robertson's American Center for Law and Justice". Oh and the part about "...the Bush administration, for which hostility toward civil liberties is a more consistent theme than friendliness toward the religious right", OUCH!

|3.21.07 @ 9:23AM|#

I don't see how it makes a rat's ass whether this was a school sponsored event. When it comes to the conflict between a school's ability to maintain good order and discipline, and a student's first amendment rights, I think that's a powerful argument against gun-run schools [shout-out to Brian].

I find the suggestion that, the state has the power to indoctrinate future generations to passively accept and acquiesce to the establishment, and anyone who dare question their policies is a dangerous subversive that must be dealt with, to be more than a little offensive.

|3.21.07 @ 9:53AM|#

Maybe they meant Bongo hits for Jesus and just forgot to add the O??

D.A. Ridgely|3.21.07 @ 9:56AM|#

thoreau:

The students generally were there to watch the Olympic runner in a school sponsored capacity -- they were not given permission, e.g., to go home or off to the movies instead. Frederick, the student in question, was then 18 and thus not required to go to the high school, but he was enrolled there and, I think, therefore voluntarily subject to school regulations. However, whether his presence at the gathering constituted being "in school" is a matter of some contention because he arrived there directly from home that day.

There are two issues involved. First, whether principal Morse's actions (taking away the banner, subsequently suspending Fredrick) violated Frederick's 1st Amendment rights; second, whether Morse is entitled to "qualified immunity" from the damages Frederick is seeking in her capacity as a public official. I think, btw, in this particular case the answer to the latter question is yes.

Anyway, the Court articulated a pretty good rule in 1969 in a case called Tucker v. Des Moines Independent Community School District holding that student speech could be prohibited only if school officials could show they acted on a reasonable belief that such speech would be cause a substantial disruption of the school's educational mission. Subsequent student speech cases, however, backed away somewhat from that standard holding, for example, in Bethel v. Fraser (1986) that "the First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech ... would undermine the school's basic educational mission."

So now there's a "disruptive" exception and an "undermining" exception, etc., and the results are a mess. In this case, all the players are dancing around whether the "Bong Hits 4 Jesus" banner was disruptive or undermining of the school's anti-drug policy (supposedly part of its basic educational mission), whether the banner was advocating disobedience to the law or changing the law, etc., etc.

|3.21.07 @ 10:10AM|#

This one doesn't look like a slam-dunk for free speech. If it was a school-connected activity, then the kid's case probably falls apart.
At any rate, I think that hoping the current court will expand civil liberties under any circumstance is akin to hoping that the ocean will stop making those pesky waves. It just ain't gonna happen.

|3.21.07 @ 10:16AM|#

"...the sweeping claim that public school officials may censor any speech they consider contrary to their "educational mission," even if it happens off campus."

Students may be prohibited from questioning, at any time, in any place, what they are taught, if this impairs the efficiency of their indoctrination- er, "education"? Once upon a time, I believed the "educational mission" of schools was to teach children how to think, not what to believe. Boy, am I dumb.

|3.21.07 @ 10:28AM|#

I am kind of pessimistic. I thought that the 1st amendment was one of the few freedoms whereby the court would tolerate little government encroachment. Scotus has effectively evicerated the 4th, much of the 5th, the 9th, and 10th amendments. BUT...we could always bitch. We could always mouth off. They at least let us bitch.
But I think there is going to be a drug war exception. If I am on the same side of an issue as Pat Robertson, that is not a good sign.
There will be some sort of justification premised or teased out of precedent or simply made up. This justification appears no where in the constitution and it'll boil down to the ends justifies the means. Which is one reason why I have little respect for modern federal jurisprudence which is so devoid of philosophical, intellectual, and moral integrity and even a modicum of courage to stand up to unconstitutional drug war orthodoxy.

|3.21.07 @ 10:30AM|#

From what I have read about this, it looks as if the whole thing was a carefully calculated (including/ especially the fact he apparently did not come to school that morning, but came directly to the "event" on his own time, and under his own power) attempt to provoke exactly the response which occurred; which I find to be a commendable display of initiative and independent thought. A vastly superior course of action than bringing a duffle bag of weapons to class. This kid is should be talked up as a role model.

|3.21.07 @ 10:33AM|#

The "educational mission" appears to be, to produce compliant workers in service to the hive. That the SCOTUS would place that mission above the right of the people peaceably to assemble, and to petition the government for a redress of grievances, is truly distressing. I'll wait for the decision before I uncork it, but I'm buying a jug of corn squeeze'ns in preperation.

chunker|3.21.07 @ 11:03AM|#

I would've thought that in order for "Bong Hits 4 Jesus" to be disruptive, students would have had to have been learning something in the first place.

Robert|3.21.07 @ 11:26AM|#

In addition to the question of whether the student was subject ot the discipline of the school, isn't the question of whether he could be deemed to have been representing the school germane? And that could turn on details such as whether he was standing in a group of students from the school or alone.

|3.21.07 @ 11:52AM|#

Robert: not at all. I think that the school is overplaying its hand by emphasizing the drug bit ; the message is irrelevant here, the fact is that he was subject to school discipline (either because the school was in loco parentis or, if 18, b/c he was there voluntarily,) and he was acting in a way that was disruptive (or at least intended to be so.)

Would it be any different if, for example, during school hours and without permission, a student ran out of the building, off of school property, and shouted "fuck all whiteys, they eat shit"?

|3.21.07 @ 1:24PM|#

Robert,

none of the justices questioned that in oral arguments--it doesn't appear to be an issue. They seemed to be more concerned with the issue of whether or not the relay was a school function. The oral arguments themselves (~60 pages double-spaced) can be found here

<pedant>

D.A. Ridgely, I believe the case you're thinking of is Tinker, not Tucker. And, of course, it's been modified by two more recent decisions. I can't remember their names, they're in the transcript.

</pedant>

|3.21.07 @ 2:03PM|#

... the message is irrelevant here, the fact is that he was subject to school discipline ... and he was acting in a way that was disruptive.
...
Would it be any different if, for example, during school hours and without permission, a student ran out of the building, off of school property, and shouted "fuck all whiteys, they eat shit"?

I would say no. In neither instance would the speech disrupt the "educational mission". Remember, your inalienable rights are not dependent on whether you are over 18, out of school or otherwise reach a level of "maturity". Some people claim their rights at a young age, most later, and many never do.

If the student had stood up in class, interrupting lessons, then the school administrators would have the same rights as any other property owner, kicking the annoying fella off the property. But this was on public property during a non-school sponsored event. Sure, students, this kids peers, were in attendance but that doesn't make him subject administrative rules. The school administrators had no more right over this student than if he was an adult with no affiliation to the school, holding the same sign. The most they can gig him on is not showing up to class that day (since he attended the event directly from home).

Indeed, if his suspension had been based on that event(skipping class), rather than his banner, this case wouldn't have seen the inside of a courtroom.

|3.21.07 @ 2:09PM|#

Just an aside,
was this the olympics where the torch they carried and the HUGE one they lit looked remarkably similar to a well rolled doobie?

VM|3.21.07 @ 2:18PM|#

"brotherben | March 21, 2007, 2:09pm | #
Just an aside,
was this the olympics where the torch they carried and the HUGE one they lit looked remarkably similar to a well rolled doobie?"

We are now armed with MIGHTY JOINT!

D.A. Ridgely|3.21.07 @ 3:08PM|#

Shawn Smith:

Not pedantry at all, and you are absolutely correct. If I'm going to cite a case, I ought to get it right -- serves me right for trying to type before I've had my morning pot of coffee.

Yes, also, Tinker has been tweaked variously by later cases. That's largely why I think Morse will get qualified immunity from the suit because she could not reasonably have been expected to know how the law in that case did (would) apply. Tinker wasn't a bad decision, all factors considered, but the Court has been screwing around in this area ever since and the law is a dog's breakfast at this point.

Mike Laursen|3.21.07 @ 4:01PM|#

it looks as if the whole thing was a carefully calculated

My impression was that it was crafted not as a First Amendment test, but as an attempt to get on TV holding a funny banner. Maybe not all that carefully crafted, either.

|3.21.07 @ 4:54PM|#

I live here in Juneau. The kid did not report to school that day. When he opened his banner he was not on school property. However, he was stand with many students who did come from the school that day.

Now argue...

|3.21.07 @ 4:55PM|#

Man....

"Standing"


Sorry...

P-R-E-V-I-E-W

|3.21.07 @ 5:45PM|#

D.A. Ridgely,

... because she could not reasonably have been expected to know how the law in that case did (would) apply.

Frederick's attorney made a point that although Principal Morse may not have known about the legal ramifications when she suspended Frederick, she did have time to contact counsel and get the advice of a lawyer before the suspension actually took effect. He claimed that was not done, and then another school official changed the suspension from ten days to five.

What is most troubling to me is that if the SCOTUS decides that Ken Starr is correct, that the school has the ability to control what students say if there are other students around in the name of, "preserving the teaching mission of the school," where does it end? Will GSA clubs be forbidden because they interfere with the school's mission of teaching that sex should only occur in the bounds of a monogamous heterosexual marriage? Will Bible study groups that meet at the school be forbidden because some school administrator thinks it's undermining the concept that the state and church should remain independent? I don't know. And I'd rather not find out.

|3.21.07 @ 8:25PM|#

What is most troubling to me is that if the SCOTUS decides that Ken Starr is correct, that the school has the ability to control what students say if there are other students around in the name of, "preserving the teaching mission of the school," where does it end? Will GSA clubs be forbidden because they interfere with the school's mission of teaching that sex should only occur in the bounds of a monogamous heterosexual marriage? Will Bible study groups that meet at the school be forbidden because some school administrator thinks it's undermining the concept that the state and church should remain independent?

The bigger issue is private meetings elsewhere off campus. Guns and drugs are zero tolerance in most schools, so if students get together and discuss legalization or shoot some Airsoft pistols, in a private setting, can school administrators punish them for doing so? I know it seems like a slippery slope argument but these days I am not sure that it is.

|3.22.07 @ 8:08PM|#

Kwix,

... so if students get together and discuss legalization or shoot some Airsoft pistols, in a private setting, can school administrators punish them for doing so?

If the SCOTUS buys Ken Starr's arguments wholesale then it seems to me the answer to your question is an emphatic, "yes." Especially when it comes to drugs, which Ken Starr brought up in his opening statement.

Robert|3.23.07 @ 12:00PM|#

"Will GSA clubs be forbidden because they interfere with the school's mission of teaching that sex should only occur in the bounds of a monogamous heterosexual marriage?"

This Girl Scouts of America are advocating sex under other circumstances?

I wonder how this case would affect situations involving students from NYC schools taking their own-property metal baseball bats to extramural games outside the city.