WASHINGTON — A divided U.S. Supreme Court gave schools new authority to restrict students’ speech today, saying pupils can be punished for statements that an administrator reasonably interprets as promoting illegal drug use.
The 5-3 ruling is likely to have little effect in California, however, because state law contains strong protections for free speech on campus.
In upholding the 10-day suspension of an Alaska high school senior for raising a banner that read “Bong Hits 4 Jesus” at a school-sanctioned event outside campus, the court majority insisted it was not abandoning free-speech principles for students that the court established in 1969. In that case, the justices upheld students’ rights to wear black armbands as a protest against the Vietnam War and said schools must allow free expression unless it disrupts education.
“Our cases make clear that students do not ‘shed their constitutional rights to freedom of speech at the schoolhouse gate,’ ” Chief Justice John Roberts said in today’s ruling, quoting from the 1969 decision.
The difference in the Alaska case, said CHIEF JUSTICE ROBERTS, was that the school principal had reasonably interpreted the student’s banner, though “cryptic,” as promoting the use of bongs, or marijuana pipes.
“Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,” Roberts said.
Dissenting justices said the ruling continued the court’s retreat from the free-speech principles of the 1969 ruling. In two rulings in the 1980s, the court allowed schools to punish students’ sexually suggestive speech and to censor student newspapers.
“The court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high school students, about the wisdom of the war on drugs,” Justice John Paul Stevens wrote.
While arguing that the court shouldn’t have accepted the principal’s “strained reading” of the banner, dissenting Justice Stevens said the ruling would also allow school administrators to punish a student’s message that seriously challenged drug laws. That, he said, would be contrary to the spirit of the 1969 case.
Bush-appointed Chief Justice Roberts was joined by all conservative Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito. Alito and Kennedy wrote separately to say they would not endorse discipline for political dissent. Thomas, in a separate opinion, said freedom of speech does not apply to public schools.
Stevens’ dissent was joined by Justices David Souter and Ruth Bader Ginsburg.
The ninth justice, Stephen Breyer, said the court should have sidestepped the constitutional issue and ruled only that the principal violated no clearly established rights and could not be sued for damages.
The student, Joseph Frederick, unfurled a 14-foot banner in June 2002 while a torch relay for the Winter Olympics was passing by the Juneau-Douglas High School and students were being let out of class to watch it.
The principal, Deborah Morse, crossed the street and demanded that Frederick and his friends take the banner down. When Frederick refused, Morse grabbed and crumpled the banner.
Frederick said the banner contained a nonsense message intended only to get on television. But Morse suspended him for 10 days for promoting drug use contrary to school policy.
Frederick, now 24, has pressed a suit for damages and removal of the suspension from his record. The Ninth U.S. Circuit Court of Appeals in San Francisco reinstated his suit in March 2006, saying schools can’t censor or punish speech merely because it contradicts school policy.
The effect of today’s ruling will be minimized in California by a 1983 state law that entitles public school students to freedom of speech and of the press unless their expression is obscene, libelous or incites students so as to create a “clear and present danger” of lawbreaking or disorder on campus.
That law gives students greater protection for freedom of expression than the Constitution’s First Amendment, which was the basis of the Supreme Court ruling. A state appeals court in San Francisco relied on the California law last month in ruling against officials of Novato High School who confiscated a student newspaper in 2001 because of an anti-immigration editorial.
The Supreme Court ruling is Morse vs. Frederick, 06-278. It is available at www.supremecourtus.gov/opinions/06pdf/06-278.pdf.
E-mail Bob Egelko at [email protected]