The Supreme Court Upholds A School Board’s Right To Regulate Student Speech Reasonably Regarded As Encouraging Illegal Drug Use

On June 25, 2007, the United States Supreme Court issued its decision in Morse v. Frederick, upholding a board of education’s right to regulate student speech that could reasonably be regarded as encouraging illicit drug use, thereby potentially interfering with maintaining a safe, secure, and effective learning environment.  In Morse, an 18-year old senior was suspended for violating the school’s anti-drug policy after he displayed a banner proclaiming “BONG HiTS 4 JESUS” across from his school in Juneau, Alaska during the Winter Olympics Torch relay.  He subsequently sued the district alleging state and federal violations of his free speech rights.  The Ninth Circuit appellate court agreed that the student’s free speech rights had been violated, finding that “’Bong Hits 4 Jesus’ may be funny, stupid, or insulting, depending on one’s point of view (but it is not) plainly offensive (in the manner of sexual innuendo).”

In a split decision, the high court reversed the Ninth Circuit and rejected the student’s free speech claims.   Relying on prior Supreme Court precedent, Bethel School District v. Fraser, 478 U.S. 675 (1968), and Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), the Court held that students’ free speech rights must be balanced by schools’ educational mission “to educate students about the dangers of illegal drugs and to discourage their use.”  Noting that the banner was displayed among school students at a school-sanctioned activity during school hours, Chief Justice Roberts found that “[b]ecause schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending [the student].”  Significantly, the majority of the Court viewed the banner as a pro-drug message and its decision appeared to be guided by a sense that schools play an important role in protecting student welfare.  The dissent, however, comprised of Justice Stevens, Justice Souter and Justice Ginsburg, concluded that the banner was merely a stupid teenage attempt to get on television and was not meant to support illegal drug use.  Justice Stevens’ dissent further concluded that treating drug-related speech with special scrutiny “finds no support in our case law and is inimical to the values protected by the First Amendment.”

Overall, the decision is good news for school administrators and further reinforces their ability to regulate speech which interferes with maintaining a safe, secure, and effective learning environment.  However, as free speech issues remain thorny and without bright line rules, legal counsel should be consulted when making decisions involving potential free speech issues.

For more information on these or other education law issues, please contact one of the attorneys in Walter & Haverfield's Education Law Group: