WASHINGTON, D.C. — School district officials in Alaska have urged the U.S. Supreme Court to review a federal court of appeals ruling concerning censorship of a student’s drug-referencing banner, with a little help from former Whitewater special council Kenneth Starr.
The 9th U.S. Circuit Court of Appeals reversed a lower court’s ruling in March, saying that Juneau city officials could not censor independent student expression, even if they believed it contradicted the school’s anti-drug policies, unless they could show that it would cause a disruption of classroom activities.
Starr, now dean of the Pepperdine University School of Law in Malibu, Calif., and an attorney at the Los Angeles law firm Kirkland and Ellis, is working pro-bono for the school district, calling the 9th Circuit’s ruling “wildly wrong.”
The case centers around Joseph Frederick, a senior at Juneau-Douglas High School, who tried to attract TV cameras by holding up a banner that said “Bong Hits 4 Jesus” as the Winter Olympic torch relay passed the school in 2002. School officials had released students from school to watch the relay. School Principal Deborah Morse grabbed the banner from Frederick and suspended him.
Morse argued that “Bong Hits 4 Jesus” referred to using the drug marijuana, and advocated illegal drug use.
Frederick had missed school that day and was across the street, off of school property. Frederick said that when he quoted Thomas Jefferson to Morse, she increased his suspension from 5 days to 10 days.
The 9th Circuit’s three-judge panel determined that under provisions of the Supreme Court’s 1969 student expression ruling Tinker v. Des Moines Independent Community School District, Frederick’s constitutional rights were “plainly” violated when school officials censored his sign.
“Under Tinker, a school cannot censor or punish students speech merely because the students advocate a position contrary to government policy,” wrote Judge Andrew J. Kleinfeld for the unanimous panel.
Kleinfeld also wrote that the phrase “Bong Hits 4 Jesus” might be “funny, stupid, or insulting, depending on one’s point of view,” but it was clearly a protected form of student speech.
Frederick’s lawyer, Douglas Mertz, said he is confident the appeals court’s ruling will be upheld, calling the school district’s appeal “foolish.”
“For decades the Supreme Court has recognized that students have free speech rights except under certain circumstances. None of the circumstances exist in this case,” Mertz said. “The school board was trying to use this to eliminate a long-standing civil liberty enjoyed by students.”
The petition will need four of the nine justice’s votes to be heard before the U.S. Supreme Court.