Faculty Scholarship 1994 - Present

Bong Hits 4 and Tinkering with Tinker; 2009 SALSB "BEST PAPER" AWARD

In Morse v. Frederick (hereinafter referred to as Morse), the U.S. Supreme Court ruled that suspending a student from school for unfurling a banner during a high school sponsored and supervised event did not violate the First Amendment.1 The event was the 2002 Olympic Torch Relay. On its way to the winter games in Salt Lake City, Utah, the parade passed through Juneau, Alaska, and along the street on which the high school was located.2 The high school, Juneau-Douglas High School, declared the Torch Relay to be an approved event, and permitted its students, monitored by faculty and staff, to leave class to watch the parade on both sides of the street.3 The student, Joseph Frederick, unfurled a 14-foot banner containing the phrase ?Bong Hits 4 Jesus? just as the Torch Parade and camera crews went by.4 The high school principal, Deborah Morse, confiscated the banner, ordered Frederick to report to her office, and suspended him from school for ten days, because she thought the sign encouraged illegal drug use in violation of school policy.5 The Juneau School District Superintendent upheld the suspension, because the banner appeared to advocate the use of illegal drugs.6 In deciding that the suspension imposed on Frederick did not violate the First Amendment, the U.S. Supreme Court determined that it was reasonable for principal Morse to conclude that the banner promoted illegal drug use contrary to school policy and that her failure to act would be construed by the students as a lack of commitment by the school to its policy combating illegal drug use.7 ?The First Amendment,? the Court said, ?does not require schools to tolerate at school events student expression that contributes to those dangers.?8 Hence public school administrators can now curtail student expression whenever they reasonably conclude student speech undermines an ?important interest,? such as deterring drug usage by school children.9 Morse is the third and most significant departure from the First Amendment protections accorded public school students in Tinker v. Des Moines Independent Community School District (hereinafter referred to as Tinker).10 In order to assess the impact of Morse, this article seeks in Part II to examine the First Amendment protection provided by Tinker and to explore in Parts III and IV how the two intervening decisions, Bethel School District v. Fraser (hereinafter referred to as Fraser)11 and Hazlewood School District v. Kuhlmeier (hereinafter referred to as Kuhlmeier),12 facilitated the Morse decision. Part V returns to Morse and analyses the majority, concurring and dissenting opinions to ascertain how they might be applied in future cases. Finally, in Part VI, this article seeks to determine whether the purpose of public school education still plays a role in resolving First Amendment issues in public school speech disputes.