Speech and the Public Schools After Morse v. Frederick: Papers Presented at Lewis and Clark Law School Symposium Available Online

As noted on Prawfsblawg, the Lewis and Clark Law Review has made the contents of its new symposium edition available online. A list of the symposium pieces (with accompanying summaries) is presented below:

1)Kenneth W. Starr, Our Libertarian Court: Bong Hits and the Enduring Hamiltonian-Jeffersonian Colloquy , 12 Lewis & Clark L. Rev. 1 (2008)
The Supreme Court’s decision in Morse v. Frederick, otherwise known as the “Bong Hits 4 Jesus” case, highlights the non-realization of Chief Justice Roberts’s goal of greater cohesion and unanimity among the nine Justices. Bong Hits is an example of the Chief Justice appearing increasingly among the majority, Justice Stevens speaking vigorously for the minority, and Justice Thomas’s iconoclastic approach to constitutional issues. Importantly, the case also reveals a trend of alliance between Justices Kennedy and Alito and their shared Hamiltonian skepticism of local power, as well as Chief Justice Roberts’ unsuccessful attempts to limit constitutional questions to narrow grounds of decision. This Essay explores the divided factions of the Court through the lens of Bong Hits and offers further insight into the Justices’ constitutional jurisprudence.

2)Erwin Chemerinsky, How Will Morse v. Frederick Be Applied?, 12 Lewis & Clark L. Rev. 17 (2008)
In 2007, the Supreme Court decided Morse v. Frederick, a 5-4 decision in which Chief Justice Roberts, writing for the majority, decided that a student could be punished for displaying a banner with the words “BONG HiTS 4 JESUS” on a public sidewalk. In this Essay, the author explores the implications of this decision, focusing on the important question of how it will be understood and applied by school officials, school boards, and lower court judges. The author suggests that the opinion was misguided and—from a First Amendment perspective—highly undesirable.
The author argues that the decision cannot be justified under existing First Amendment principles, and cautions that it could be seen as authorizing punishment of students for speech that is deemed distasteful or offensive, even just juvenile. However, the concurring opinion by Justice Alito suggests that the decision is exceedingly narrow and based on a very unusual factual context. The author notes that if Justice Alito’s opinion is seen as defining the scope of the holding, the case establishes only the power of schools to punish speech encouraging illegal drug use rather than giving school officials great discretion to punish student speech.
Despite the fact that Morse v. Frederick is consistent with decisions from the Supreme Court and lower federal courts over the last two decades, the author’s hope is that Chief Justice Roberts’s majority opinion will be read through the prism of Justice Alito’s concurring opinion, thereby having little effect on the already very limited First Amendment rights of students.

3) Sonja R. West,  Sanctionable Conduct: How the Supreme Court Stealthily Opened the Schoolhouse Gate, 12 Lewis & Clark L. Rev. 27 (2008)
The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after a long silence, but concludes that the messy facts in the case chosen made the case a poor vehicle for the Court to address the underlying school-speech issues.

4) Richard W. Garnett , Can There Really Be “Free Speech” in Public Schools? ,12 Lewis & Clark L. Rev. 45 (2008)
The Supreme Court’s decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students’ speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the “basic educational mission” of public schools, and what are the implications of this “mission” for officials’ authority and students’ free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the “mission” of the public schools? We all recall Justice Jackson’s stirring rhetoric in the West Virginia flag-salute case: “If there is any fixed star in our constitutional constellation,” he proclaimed, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.]” But, is this really true—could it be true?—in public schools?

5) Stephen Kanter, Bong Hits 4 Jesus as a Cautionary Tale of Two Cities, 12 Lewis & Clark L. Rev. 61 (2008)
In September of 1987, several high school students in Tigard, Oregon wore various T-shirts allegedly promoting the use of alcohol. In January of 2002, a number of students in Juneau, Alaska held up a banner with the words “BONG HITS 4 JESUS” on it while the Olympic torch passed by their school. Both groups of students claimed their First Amendment rights were violated when they were summarily punished for their actions; however, the processes and the end result in each case were quite different. This Article recounts how the Tigard High administration turned the situation into a learning experience. A mock Supreme Court was convened, with high school students acting as attorneys on both sides of the issue. The author then compares the treatment and outcome of the Oregon T-shirt incident with that of the Alaska banner incident, concluding that the administration in the “Bong Hits” case missed a valuable learning opportunity, ultimately resulting in dire consequences for student speech. The Article analyzes the five separate opinions in Morse v. Frederick and criticizes the United States Supreme Court for diluting student rights. The author draws important lessons from different Justices’ views to suggest what the future may portend for the direction of the current United States Supreme Court.

6) Douglas Laycock, High-Value Speech and the Basic Educational Mission of a Public School: Some Preliminary Thoughts , 12 Lewis & Clark L. Rev. 111 (2008)
This Article assesses the alarming proposition at the core of the school’s argument in Morse v. Frederick: that a school has constitutional power to suppress any speech inconsistent with its self-defined “basic educational mission.” The phrase was taken from an earlier opinion upholding punishment of the “vulgar and lewd” manner in which an idea was expressed. It would be a very different thing to extend this concept to suppression of the idea itself.
This Article explores the extent to which inculcating particular ideas can be part of a school’s mission, and the still narrower set of cases in which suppression of dissent can be an acceptable means of inculcating those ideas. While the Court cannot identify a clear principle that describes all the cases in which student speech can be suppressed, it can identify a clear counter-principle: the right to freely state political and religious ideas is protected. Tinker v. Des Moines Independent Community School District is an essential protection for such high-value speech, and all subsequent cases in the Supreme Court appear to reaffirm this core holding of Tinker.
The Court’s public-forum doctrine is no substitute for Tinker; public-forum doctrine would permit even-handed suppression of broad categories of speech. The school’s “basic educational mission” standard, unless carefully defined and limited in ways the school did not even attempt, would eliminate even the requirement of viewpoint neutrality and substantially repeal the Free Speech Clause in public schools.

JFB