ALASKA — Ahigh school student’s First Amendment rights were violated when hisprincipal suspended him for holding a ”Bong Hits 4 Jesus” banner ata parade near his school, a unanimous three-judge panel of a federal appealscourt ruled Friday.
Since the speech took place outside of aclassroom but during the school day and the expression did not disrupt schoolactivity, the school cannot censor the speech, the 9th U.S. Circuit Court ofAppeals said.
The decision was based on a 1969 Supreme Court case, Tinker v. Des Moines Independent CommunitySchool District. In Tinker,students wore black armbands to school to protest the Vietnam War. The SupremeCourt ruled in that case that students’ First Amendment expression rightsat school can only be withheld if the expression will cause a ”substantialdisruption” of school activities.
School officials agree thatthe ”Bong Hits 4 Jesus” banner did not disrupt classroomactivity.
”They concede that their objection to the display,and the reason why the principal ripped down the banner, was not concern that itwould cause disruption but that its message would be understood as advocating orpromoting illegal drug use,” the court said in itsdecision.
Speech taking place outside of the classroom cannot becensored simply because it conflicts with a school’s educational mission,the court said, holding that the 1988
Hazelwood Supreme Court decision didnot apply to the facts of this case.
Joseph Frederick, a student atJuneau-Douglas High School, displayed the banner in an effort to attract TVcameras as the Winter Olympic torch relay was passing the school in 2002.Juneau-Douglas High School Principal Deborah Morse grabbed the banner fromFrederick and suspended him for 10 days.
Frederick has said thephrase ”Bong Hits for Jesus” was meaningless and funny. ButJuneau-Douglas Principal Deborah Morse has argued the term ”bonghits” promoted marijuana use, which contradicted the school’sdrug-free mission.
After appealing unsuccessfully to the schoolboard, Frederick sued the school district for damages, removal of the suspensionfrom his records and a declaration that his rights had been violated. A federaldistrict court ruled against him and the appeals court overruled thatdecision.
Not only was the principal wrong in punishing Frederick forhis speech, but also she should have known better, the appeals courtsaid. The court cited an earlier case tosay Morse has no qualified immunity defense because ”a reasonablycompetent public official should know the law governing [the official’s]conduct.”
Qualified immunity enables the government to avoidpaying damages if the law is unclear enough that a government official may nothave known he or she was breaking the law.
”This is no case ofignorance,” the decision said. ”The law was clear and Morse was awareof it.”
David Crosby, a lawyer for Morse and the schooldistrict, declined to comment on the decision.
Frederick’slawyer, Douglas Mertz, said the decision has caused concern in Juneau that theruling will jeopardize the school’s anti-drug stance.
”That’s not the case,” Mertz said. ”Theymust tolerate whatever dissent exists, as long as the dissent isnon-disruptive.”
Mertz said the decision reinforces thatstudents have First Amendment rights that school officials cannot infringeupon.
”It solidified what the law has been all along,”Mertz said. ”That government officials may not decide for themselves whatspeech is offensive and contrary to publicpolicy.”