A Supreme Court case about the free-speech rights of high school students being argued today, is opening an unexpected fissure between the Bush administration and its usual allies on the religious right.
As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray.

 And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.

On the surface, Joseph Frederick’s dispute with his principal, Deborah Morse, at the Juneau-Douglas High School in Alaska five years ago appeared to have little if anything to do with religion — or perhaps with much of anything beyond a bored senior’s attitude and a harried administrator’s impatience.

The most important student free-speech conflict to reach the Supreme Court since the height of the Vietnam War hinges on a somewhat absurd, vaguely offensive, mostly nonsensical message of protest: “Bong Hits 4 Jesus.”

That’s the slogan high-school student Frederick fashioned in 2002 with a 14-foot piece of paper and a $3 roll of duct tape.

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene.

 Frederick later testified that he designed the banner, using a slogan he had seen on a snowboard, “to be meaningless and funny, in order to get on television.”
 Another reason was to get under the skin of his disciplinarian principal, Deborah Morse with whom he had a running feud.

It worked, at least the irritating-the-principal part. Morse crossed to Frederick’s position across from the school and confiscated the banner and later suspended him for 10 days.

 Ms. Morse found no humor but plenty of meaning in the sign, recognizing “bong hits” as a slang reference to using marijuana. She demanded that he take the banner down. When he refused, she tore it down, ordered him to her office, and gave him a 10-day suspension.


 Frederick said Morse tacked on the last five days when he paraphrased Thomas Jefferson’s admonition that “speech limited is speech lost.”

In the five years since, a classic conflict between a second-semester senior and his frazzled principal has spawned numerous lawsuits and conflicting court rulings.

 Fredericks’s ensuing lawsuit and the free-speech court battle that resulted, in which he has prevailed so far, is one that, classically, pits official authority against student dissent.

 It is the first Supreme Court case to do so directly since the court upheld the right of students to wear black arm bands to school to protest the war in Vietnam, declaring in Tinker v. Des Moines School District that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The court followed that 1969 decision with two others during the 1980s that upheld the authority of school officials to ban vulgar or offensive student speech and to control the content of school newspapers. Clearly there is some tension in the court’s student-speech doctrine; what message to extract from the trio of decisions is the basic analytical question in the new case, Morse v. Frederick, No. 06-278. What is most striking is how the two sides line up.
The Bush administration entered the case on the side of the principal and the Juneau School Board, which are both represented by, Kenneth W. Starr, the former solicitor general and independent counsel. His law firm, Kirkland & Ellis, is handling the appeal without a fee. Starr and Edwin S. Kneedler, a deputy solicitor general who will present the government’s view, will share argument time on Monday.

 The National School Board Association, two school principals’ groups, and several antidrug organizations also filed briefs on the school board’s side.
While it is hardly surprising to find the American Civil Liberties Union and the National Coalition against Censorship on Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.

The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as “defending the right to hear and speak the Truth”; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm “dedicated to the preservation of First Amendment rights and religious freedom.”
The institute, based in Plano, Tex., told the justices in its brief that it was “gravely concerned that the religious freedom of students in public schools will be damaged” if the court rules for the school board.

Lawyers on Frederick’s side offer a straightforward explanation for the strange-bedfellows aspect of the case. “The status of being a dissident unites dissidents on either side,” said Prof. Douglas Laycock of the University of Michigan Law School, an authority on constitutional issues involving religion who worked on Liberty Legal Institute’s brief.

In an interview, Professor Laycock said that religiously observant students often find the atmosphere in public school to be unwelcoming and “feel themselves a dissident and excluded minority.” As the Jehovah’s Witnesses did in the last century, these students are turning to the courts.

The briefs from the conservative religious organizations depict the school environment as an ideological battleground. The Christian Legal Society asserts that its law school chapters “have endured a relentless assault by law schools intolerant of their unpopular perspective on the morality of homosexual conduct or the relevance of religious belief.”
The American Center for Law and Justice Brief, filed by its chief counsel, Jay Alan Sekulow, warns that public schools “face a constant temptation to impose a suffocating blanket of political correctness upon the educational atmosphere.”

What galvanized most of the groups on Frederick’s side was the breadth of the arguments made on the other side. The solicitor general’s brief asserts that under the Supreme Court’s precedents, student speech “may be banned if it is inconsistent with a school’s basic educational mission.”
The Juneau School Board’s mission includes opposing illegal drug use, the administration’s brief continues, citing as evidence a 1994 federal law, the Safe and Drug-Free Schools and Communities Act, which requires that schools, as a condition of receiving federal money, must “convey a clear and consistent message” that using illegal drugs is “wrong and harmful.”

Starr’s main brief asserts that the court’s trilogy of cases “stands for the proposition that students have limited free speech rights balanced against the school district’s right to carry out its educational mission and to maintain discipline.” The brief argues that even if Ms. Morse applied that precept incorrectly to the facts of this case, she is entitled to immunity from suit because she could have reasonably believed that the law was on her side.

The religious groups were particularly alarmed by what they saw as the implication that school boards could define their “educational mission” as they wished and could suppress countervailing speech accordingly.

“Holy moly, look at this! To get drugs we can eliminate free speech in schools?” is how Robert A. Destro, a law professor at Catholic University, described his reaction to the briefs for the school board when the Liberty Legal Institute asked him to consider participating on Frederick’s behalf. He quickly signed on.

Having worked closely with Republican administrations for years, Destro said he was hard pressed to understand the administration’s position. “My guess is they just hadn’t thought it through,” he said in an interview. “To the people who put them in office, they are making an incoherent statement.”

The solicitor general’s office does not comment publicly on its cases. But Starr, by contrast, was happy to talk about the case and the alignment against him of many of his old allies. “It’s reassuring to have lots of friends of liberty running around,” he said in a cheerful tone, adding: “I welcome this outpouring because it will help the court see that it shouldn’t go too far either way.”

The American Civil Liberties Union (ACLU) has been on Frederick’s side from the start, joined by a diverse coalition of civil-rights, constitutional-law and religious organizations.

Morse v. Frederick asks the justices to weigh the court’s famous 1969 ruling that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” with more recent decisions acknowledging a school system’s ability to enact rules that maintain order and protect other students from messages deemed harmful.

In this case, the school board maintains that Frederick’s slogan encourages smoking marijuana. Other school districts have placed restrictions on clothes or speech believed to carry the potential of disruption or violence.

Both sides equate an adverse ruling with cataclysmic results.

The “extraordinarily broad claim” asserted by the government, said ACLU national legal director Steven Shapiro, “would in effect overrule the entire architecture of student-speech law that the Supreme Court has so carefully constructed over the past 40 years.”

Morse’s brief, written by Starr and a team of pro bono attorneys at the law firm of Kirkland and Ellis, said ratification of Frederick’s victory in the appellate court would make all the more daunting “the vital task of teachers, administrators and volunteer school-board members in attending holistically to the needs of millions of students entrusted every school day to their charge.”

Frederick was one of them, five years ago, though he was not a particularly happy student at Juneau-Douglas High School.

One day, he refused a vice principal’s order to leave a student commons area where he was reading Albert Camus, and police were called. The next day, he remained in his seat while others stood for the Pledge of Allegiance and he was hauled to the principal’s office.

He planned his ultimate protest for Jan. 24, 2002, the day the Olympic Torch was scheduled to pass through Juneau, part of a 50-state relay in advance of the winter Olympics in Salt Lake City. Frederick said he’d seen the phrase “Bong Hits For Jesus” on a sticker on a snowboard.

“To me, it’s absurdly funny,” Frederick, now 23, said in a recent conference call with reporters. “The phrase was not important. I wasn’t trying to say anything about religion, I wasn’t trying to say anything about drugs, I was just trying to say something. I wanted to use my right to free speech, and I did it.”

Frederick’s case presents some unusual facts. For one thing, he was 18 at the time of the event, and he was careful not to display his protest message on school grounds.

At least one nonstudent was among the group holding the banner and his lawyers contend that even if his message was considered pro-marijuana, debates about legalizing the drug are a legitimate topic of political discussion in Alaska, where the state Supreme Court has ruled adults have the right to possess small amounts of pot.

Even school officials acknowledged Frederick’s actions were not disruptive. But the school board says Frederick’s protest came at what was a school-sponsored event: the high school was released for the parade, and the cheerleaders and pep band entertained. “It was a field trip,” Starr says, even if it occurred outside the school.

A district court judge dismissed Frederick’s suit against Morse and the school board that backed her decision. But the U.S. Court of Appeals for the 9th Circuit said government officials cannot punish speech with which they disagree.
That court held Morse personally liable for violating Frederick’s rights.

Morse is now an administrator with the Juneau School District. Frederick, meanwhile, has learned much about the legal system.

 He sued the Juneau police for a series of what he alleged were harassments that occurred after the banner incident, and he received a settlement from the city. As fate would have it, his father Frank worked for the company that insured the Juneau School District; he sued after he claimed he was fired for not pressuring his son to drop his lawsuit. A jury awarded him a nearly $200,000 settlement.
 Joseph Frederick also was arrested as a Texas college student for distributing marijuana. “I never professed to be perfect or a saint,” he said in the conference call.


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