STATEMENT OF THE CASE

Petitioner Deborah Morse (Morse) has been the principal of Juneau-Douglas High

School (JDHS) since June, 2000. (A. 24.) Like many high schools, JDHS struggles with

alcohol and illegal drug abuse among its students, with an estimated 60 percent of

graduating students “involved with marijuana.” (A. 115.) Students even come to class

drunk or on drugs. (A. 115). The school board, consistent with its educational mission to

curb this problem, has instituted policies against the distribution of messages and material

encouraging the use of illegal drugs or alcohol. (A. 25.) As principal, Morse is

responsible for carrying out these policies in all situations where the students are within

school jurisdiction, including approved social events. (A. 26.)

On January 24, 2002, a relay of the Olympic Torch passed through Juneau along a

route in front of the school. (A. 26.) Morse allowed students and staff to participate in the

torch relay as an approved social event, for its educational value and cultural

significance. (A. 26-27.) The school band and cheerleaders, in uniform and under school

supervision, performed as the relay passed. (A. 27.) Four JDHS students, representing

various segments of the student body, were given permission to miss class and act as

torch-bearers. (A. 27.) Students in classes whose teachers elected to observe the relay

were required to attend, and over 1000 students were present. (A. 60.) The student body

“remained under the supervision of classroom teachers and school administrators at all

times while observing the relay.” (A. 27.) Students were not “released to do as they

pleased” (A. 51.), and students leaving the event would have been considered truant (A.

60.), although some apparently left anyway (A. 36.). Students were permitted to view the

relay from either side of the street, including the side physically off school grounds. (A.

1

27). At around 9:30 AM, when the relay passed, Morse was in front of the school

supervising the crowd. (A. 27.) Respondent Joseph Frederick (Frederick), then a senior at

JDHS, was standing across the street from the school at the time. (A. 28.)

As the television cameras passed, Frederick and several other students unfurled a

large banner reading “BONG HITS 4 JESUS.” (A. 28.) The banner was in full view to

the students on both sides of the street, including the large number of students viewing

the relay from school grounds. (A.28.) Morse crossed the street and told Frederick to put

the banner down, but he refused. (A. 29.) Morse then confiscated the banner and asked

Frederick to come to her office, but he turned and walked away (A. 29.) She issued

Frederick a 10-day suspension for violating the district policy requiring obedience to

reasonable staff directives, and the policy against displaying offensive materials. (A. 30)

Morse told Frederick to put the banner down because she felt that that it violated

the district’s policies against displaying material advertising or promoting the use of

illegal drugs. (A. 29.) She believed that “display of the banner would be construed by

students, district personnel, parents and others witnessing the display of the banner, as

advocating or promoting illegal drug use.” (A. 29.) She further believed “that failure to

react to the display of such a banner at a school-sanctioned event would appear to give

the District’s imprimatur to that message.” (A. 29.)

Frederick argued that the suspension was a violation of his First Amendment right

to free speech, and brought suit under 42 U.S.C. § 1983 in the United States District

Court for the District of Alaska. (A. 12.). The court granted Morse’s motion for summary

judgment, holding that Frederick’s speech was not protected. Frederick v. Morse, 2003

WL 25274689 D. Alaska, 2003. Frederick appealed to the United States Court of Appeals

2

for the Ninth Circuit, which vacated and remanded the decision of the lower court.

Frederick v. Morse, 493 F.3d 1114, 1123 (2006). The United States Supreme Court

granted Morse’s petition for Writ of Certiorari on December 1, 2006. Morse v. Frederick,

127 S. Ct. 722 (2006).

SUMMARY OF THE ARGUMENT

This Court has recognized that although students retain First Amendment rights

within school settings, those rights are not the same as those afforded to adults on the

street. Schools may restrict student expression when it is vulgar, lewd, or offensive, when

it occurs in a school-sponsored setting where it might be perceived as bearing the

school’s imprimatur, or when school officials may reasonably anticipate that the speech

will cause disruption. This Court has affirmed that it is the proper responsibility of local

school boards, rather than the federal courts, to determine what manner of student speech

should be restricted on the above grounds.

In the instant case, the student expression in question is a large banner promoting

drug use. Speech promoting drug use undermines the basic educational mission of a

school to teach students the value of a healthy, drug-free lifestyle. School boards must

retain the authority to carry out their basic educational mission; therefore, they must be

able to determine what speech is so offensive to that mission that it must be prohibited.

The speech in question promoted drug use, and as such was in direct opposition to the

school’s basic educational mission.

The speech in question also occurred in a school-sponsored setting. Such a setting

includes approved social events, even those outside school grounds, so long as they are

school-supervised, and can reasonably be seen to bear the school’s imprimatur. Schools

3

must retain the authority to restrict student speech within the confines of such events, so

that the speaker’s views are not attributed to the school. The school need not lend its

name and resources to the dissemination of a message, and may disassociate itself from

speech it finds inappropriate for young audiences.

The speech in question also could reasonably have led school officials to forecast

disruption of the work of the school. School officials need not wait until disruption has

occurred to punish the speaker; rather, if circumstances lead them to reasonably forecast

disruption, they may move to prevent it. In the instant case, the pre-existing drug problem

in the school could reasonably have led school officials to believe that the speech would

have exacerbated a current crisis.

ARGUMENT

I. UNDER THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT, A SCHOOL MAY CONSTITUTIONALLY DISCIPLINE A STUDENT WHEN THAT STUDENT MAKES A STATEMENT PROMOTING ILLEGAL DRUG USE AT AN OFF CAMPUS, SCHOOL AUTHORIZED AND SUPERVISED EVENT.

The First Amendment declares that Congress “shall make no law . . . abridging

the freedom of speech.” U.S. Const. amend. I. Students and teachers retain their First

Amendment rights within school settings, but those rights must be “applied in the special

characteristics of the school environment,” Tinker v. Des Moines Independent

Community School, 393 U.S. 503, 506 (1969), and students’ rights in public schools “are

not coextensive with the rights of adults in other settings.” Bethel School District No. 403

v. Fraser, 478 U.S. 675, 682 (1986). Although school officials may not censor “silent,

passive expression of opinion” unless it “materially disrupts classwork” or involves

“substantial disorder,” Tinker, 393 U.S. at 513, a school need not tolerate speech that is

vulgar, lewd, offensive, or speech that “would undermine the school’s basic educational

4

mission.” Fraser, 478 U.S. at 685. Furthermore, educators may exercise greater control

over student expression when it occurs in “school sponsored . . . activities that students,

parents, and members of the public might reasonably perceive to bear the imprimatur of

the school.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 271 (1988). Because

Frederick’s speech was properly determined by the school board to be both offensive and

contrary to the school’s basic educational mission, as well as occurring at a school-

approved social event that bore the district’s imprimatur, the judgment of the Ninth

Circuit should be reversed and the judgment of the district court should be entered.

A. Frederick’s Speech May Be Prohibited Under The Fraser Standard Because It Is Offensive And Contrary To The School’s Educational Mission

It is necessary and “highly appropriate” for schools to be able to “prohibit the use

of vulgar and offensive terms in public discourse.” Fraser, 478 U.S. at 683. The task of

determining “what manner of speech in the classroom or school assembly is

inappropriate” falls not to the federal court system, but “properly rests with the school

board.” Id. A school may determine that to permit such offensive speech would

“undermine [its] basic educational mission.” Id. at 685.

In Fraser, this Court held that a school could punish a student who gave a sexually

explicit speech in a school assembly. Fraser, 478 U.S. at 686. The Court found it relevant

that the speech was given before “approximately 600 students, many of whom were 14-

year-olds,” and that “students were required to attend the assembly or report to study

hall.” Id. at 677. The school argued that it had a duty to protect “an essentially captive

audience of minors,” Id. at 680. This Court agreed, holding that “school authorities acting

in loco parentis” had a legitimate concern in protecting such an audience from vulgar or

offensive messages. Id. at 684. This Court further held that the school was authorized to

5

determine that permitting the speech would have “undermine[d] the school’s basic

educational mission,” Id. at 685, which included “teaching students the boundaries of

socially appropriate behavior.” Id. at 681.

In a similar case, the Sixth Circuit Court of Appeals affirmed the constitutionality

of a school district’s dress code, finding that the school could ban “clothing with . . .

drug, alcohol, or tobacco slogans,” because such symbols and words promoted values “so

patently contrary to the school’s educational mission.” Boroff v. Van Wert City Board of

Education, 220 F.3d 465, 470 (6th Cir. 2000). The Boroff court adhered to the Fraser

position that “a school need not tolerate student speech that is inconsistent with its basic

educational mission,” and that “the school board has the authority to determine what

manner of speech . . . is inappropriate.” Id. The controversy in Boroff arose when a

student wore a Marilyn Manson T-shirt to school. Id. at 466. The school principal

submitted that, among other things, he was concerned about the effect that advertising

Marilyn Manson’s “pro-drug persona” would have on schoolchildren. Id. at 470. The

court held that the T-shirt had been prohibited not because of any viewpoint it might have

expressed, but because it was determined to be “vulgar, offensive, and contrary to the

educational mission of the school.” Id. at 471.

Like the sexual speech in Fraser, Frederick’s speech was inimical to the school’s

basic educational mission to teach students the boundaries of socially appropriate

behavior. Like lewd and vulgar sexual innuendo, messages promoting illegal drug use are

offensive and inappropriate for a school-age audience. Like the speaker in Fraser,

Frederick broadcasted his message directly to a captive audience of his fellow students at

a school activity. Furthermore, like the T-shirt in Boroff, Frederick’s speech promoted

6

drug use. Like the school board in Boroff, the Juneau Douglas School Board has

determined that messages promoting drug use conflict with its basic educational mission.

Student expression that school administrators may regulate under Fraser is not

limited to lewd or sexual speech; it may also include offensive speech that is contrary to

the school’s educational mission, including promotion or advertising of illegal drug use.

Local school boards, exercising reasonable judgment on a case-by-case basis, are better

positioned than federal courts to determine what forms of expression are offensive to a

school’s educational mission. For these reasons, the Ninth Circuit erred by narrowly

interpreting Fraser to encompass only lewd or sexually vulgar student expression.

B. Frederick’s Speech May Be Prohibited Under The Kuhlmeier Standard Because It Occurred At A School-Sponsored Event That Bore The School’s Imprimatur.

The standard by which schools determine what student expression may be

punished “need not also be the standard for determining when a school may refuse to

lend its name and resources to the dissemination.” Kuhlmeier, 484 U.S. at 272. In

Kuhlmeier, this Court stated that within school activities, schools “retain the authority to

refuse to sponsor student speech that might reasonably be perceived to advocate drug or

alcohol use.” Id. This Court also held that activities that do not occur in a traditional

classroom setting, but are “supervised by faculty members and designed to impart

particular knowledge or skills to student[s],” may be characterized as school activities. Id.

at 271.

The controversy in Kuhlmeier arose when a principal chose to remove two

articles discussing pregnancy and divorce from a school newspaper prior to publication.

Id. at 263. The principal felt that the divorce article failed to present all sides of the story,

and the pregnancy article was inappropriate for younger students, as well as possibly

7

revealing the identities of pregnant students. Id. This Court upheld the principal’s actions,

holding that educators have an interest in ensuring that “the views of the individual

speaker are not erroneously attributed to the school,” and that “educators are entitled to

exercise greater control” over student speech occurring within school activities. Id. at

271. The Court found the school newspaper to be such a school activity, even though it

was not part of “a traditional classroom setting,” because “students, parents, and

members of the public might reasonably perceive [the newspaper] to bear the imprimatur

of the school.” Id.

In a case similar to Kuhlmeier, a federal district court in Missouri held that a

school could prevent the performance by the school marching band of a pro-drug song.

McCann v. Fort Zumwalt School District, 50 F. Supp. 2d 918, 920. (E. Dist. Mo., S.E.

Div. 1999). The McCann court held the marching band “bore the imprimatur of the

[school] and district,” finding it relevant that the band wore uniforms with the school’s

colors, and was introduced as being from the school. Id. at 923. The court stated that

because the speech in question “bore the imprimatur” of the school, the Kuhlmeier

standard governed, and the school administrators could restrict the band's performance of

a song that might “reasonably be perceived to advocate, or erroneously attribute to the

District tolerance of, drug use.” Id. at 924.

Like the newspaper in Kuhlmeier, the torch relay in the case at bar is a school

activity, although not occurring in a traditional classroom setting. Like the school in

Kuhlmeier, which sought to impart to the students the skills of fair and responsible

journalism, Morse authorized the viewing of the relay to impart to the students the

cultural values and educational significance of the Olympic Games. By the participation

8

of the band and cheerleaders in uniform, and the student torchbearers, JDHS lent its name

and resources to the event, much as the school in Kuhlmeier had done by distributing the

newspaper. Furthermore, like the song in McCann, Frederick’s banner promoted drug

use. The school band in McCann performed at many off-campus events not unlike the

torch relay in the case at bar. Like the school administrators in McCann, Morse found

herself facing a pro-drug message disseminated under the auspices of her school’s

imprimatur, and acted to make sure that observers, including parents and members of the

community, would not erroneously attribute tolerance of the message to the school.

Because Frederick’s banner was raised at a school event, and the speech could

reasonably be perceived as bearing the school’s imprimatur, and it made use of the

school’s name and resources, Morse was properly within her authority to confiscate it.

C. Frederick’s Speech May Be Regulated Under The Tinker Standard Because Morse Could Reasonably Have Anticipated That It Might Cause Disruption.

Tinker states that prohibitions of student speech cannot be sustained, absent “facts

which might reasonably [lead] school to forecast substantial disruption [or] material

interference with school activities.” 393 U.S. at 514. A “mere desire to avoid the

discomfort and unpleasantness that always accompany an unpopular viewpoint” is not

sufficient. Id. at 509. However, when the speech in question would, whether by its time,

place, or manner, “materially disrupt” classwork or other school activities or cause

“invasion of the rights of others,” it is not protected. Id. at 513.

The controversy in Tinker arose when students wore black armbands to school in

protest of the Vietnam War. Id. at 504. This Court held that the armbands constituted a

silent and passive expression of a political opinion, causing no disruption, and could

therefore not be prohibited. Id. at 514. This Court found it relevant that the school

9

administration’s ban of the armbands did not appear to have been motivated by concern

over disruption, but instead by a desire to avoid any controversy resulting from the

expression. Id. at 510.

The Tenth Circuit applied Tinker to a case where a student displayed the

Confederate flag at school, and held that the school could prohibit the display. West v.

Derby Unified School District No. 260, 206 F.3d 1358, 1366 (10th Cir. 2000). The court

looked to the school’s recent history of racial tensions, and determined that school

officials could reasonably have concluded that display of the Confederate flag would

increase those tensions, leading “to a material and substantial disruption of school

discipline.” Id. The court found that, because the administration could reasonably forecast

further disruption based on past problems, it was not necessary to wait and “[punish]

conduct only after it caused a disturbance.” Id. at 1367.

Like the Confederate flag in West, Frederick’s banner was displayed in a school

situation containing past disruptive problems related to the speech. The record shows an

established drug problem among JDHS students, with students coming to class under the

influence. Like the racial tensions in West, the drug problem at JDHS is disruptive to

classwork. Like the school administrators in West, Morse had every reason to “forecast

further disruption” from speech encouraging activity that might exacerbate a pre-existing

problem. For these reasons, Morse was within her authority to restrict Frederick’s speech.

D. School Boards And School Administrators Must Be Able To Institute And Carry Out Reasonable Policies Discouraging Drug Use, Including Keeping Pro-Drug Messages Out Of Schools And School Activities.

In Fraser, this Court stated that “public education . . . must inculcate the habits

and manners of civility,” 478 U.S. at 681. The court articulated a balancing test, stating

10

that “the undoubted freedom to advocate unpopular and controversial views in schools

and classrooms must be balanced against society’s countervailing interest in teaching

students the boundaries of socially appropriate behavior.” Id. at 681. This court further

noted that education “is not confined to books, the curriculum, and the civics class;

schools must teach by example the shared values of a civilized social order.” Id. at 683.

Teaching these “fundamental values of public school education” is part and parcel of a

school’s “basic educational mission.” Id. at 685.

To show the threat that drug abuse poses to such a mission, there is precedent in

this Court from outside the realm of student speech cases demonstrating the compelling

interest that schools have in protecting minors from illegal drug abuse. In two cases,

Vernonia School District 47j v. Acton, 515 U.S. 646 (1995) and Board of Education v.

Earls, 536 U.S. 822 (2002), this Court upheld challenges to school drug testing policies.

Id. at 834, 515 U.S. at 665. This Court reasoned that the state interest in protecting

children from the dangers of drug abuse made the policies reasonable, despite their

constitutional implications. Id. In Vernonia, this Court noted that “school years are the

time when the physical, psychological, and addictive effects of drugs are most severe”

and that “childhood losses in learning are lifelong and profound.” Id. at 661.

Drug abuse is dangerous, destructive, and illegal. Our civilized social order does

not consider it to be socially appropriate behavior even among adults. Surely schools,

pursuant to their responsibilities in loco parentis, have a duty to protect children from this

danger, and educate them so that they may be better prepared to face it as adults.

Messages that promote drug use, glorify it, or even make light of it are in direct

opposition to any school’s teachings about its dangers, and can only mislead or confuse

11

young students. As such, when disseminated in schools, the freedom to express pro-drug

messages is outweighed by society’s interest in teaching students that drug use is not only

socially inappropriate, but dangerous as well.

In conclusion, discouraging drug use is part of any school’s duty to educate its

students about the values and benefits inherent in a healthy lifestyle, and is therefore a

part of a school’s basic educational mission that school administrators must be allowed to

address.

CONCLUSION

For the reasons cited above, Petitioner respectfully asks this Court to reverse the

decision of the Ninth Circuit, finding Morse’s actions in disciplining Frederick

constitutional.

Respectfully Submitted

Attorney for Petitioner

12