Early legal applications of the Morse decision

As soon as the Morse v. Frederick decision was handed down from the U.S. Supreme Court in late June, it immediately began appearing in lower courts’ opinions across the country.

On July 2, just seven days after the “Bong Hits 4 Jesus” ruling, a California superior court cited the new precedent in overturning a middle school’s dress code, which banned all pictures, logos, words, stripes and patterns, and had disciplined students for wearing an American Cancer Society ribbon pin and T-shirts reading “Jesus Freak” and “D.A.R.E. to keep kids off drugs.”

The judge invoked Morse as a reaffirmation of the Tinker standard.

“It has long been held that, under the First Amendment to the Constitution of the United States, student expression is protected, so long as it does not ‘materially and substantially disrupt the work and discipline of the school,’” Judge Raymond Guadagni wrote in his decision in Scott v. Napa Valley Unified School District. “This well settled principle has just been reconfirmed by the Supreme Court in Morse v. Frederick.”

On July 10, Judge Terrence McVerry of the U.S. District Court for the Western District of Pennsylvania ruled that a student’s suspension for creating a satirical MySpace profile of his principal was unconstitutional, citing Justice Samuel Alito’s concurring opinion in Morse to reject the school district’s claim that the parody profile undermined the school’s educational mission.

“Justice Alito’s concurrence in Morse clarifies that Morse does not permit school officials unfettered latitude to censor student speech under the rubric of ‘interference with the educational mission’ because that term can be easily manipulated,” McVerry ruled in Layshock v. Hermitage School District.

But a third student free-speech case decided since “Bong Hits 4 Jesus” went in the opposite direction.

The 2nd U.S. Circuit Court of Appeals’ July 5 decision upholding an eighth-grader’s suspension for sharing an AOL Instant Messenger buddy icon depicting his teacher being shot was influenced by Morse v. Frederick, said the student’s attorney, Stephen Ciotoli.

“I assume the 2nd Circuit was waiting for that decision and, to a certain extent, I think they followed it,” he said of the ruling in his case, Wisniewski v. Board of Education of the Weedsport Central School District. “They probably figured if they had gone the other way and then this case had gone up to the Supreme Court, the Supreme Court might have reversed them.”