The principal of the Juneau-Douglas High School allowed students and staff, during school hours, to leave class and observe as the Olympic Torch Relay passed through Juneau. Joseph Frederick, a senior at the high school, came to school late that day but joined the spectators across the street from the school to watch the relay. He, along with others, unfurled a fourteen foot banner which said “BONG HiTS 4 JESUS”. When the principal approached him and asked him to take down the banner, he refused to do so. He was suspended for 10 (later reduced to 8) days. The school based this discipline on its determination that Frederick’s speech, in the midst of a school sponsored activity, was reasonably interpreted as advocating illegal drug use. Frederick appealed this decision and sought damages against the principal, claiming his words were just “nonsensical” and not intended to be drug related in any way.
The United States Supreme Court ruled that “schools may take steps to safeguard those in their care with speech that can reasonably be regarded as encouraging illegal drug use”. The Court held that the principal’s decision to allow the staff and students to observe the torch relay, as an “approved social event or class trip”, constituted a school sponsored activity. The Court discussed the importance of the charge to public schools to educate students regarding the dangers of illegal drug use. The Court ruled that the school’s restriction of student speech at a school event “ when that speech is reasonably viewed as promoting illegal drug use” did not constitute a violation of the student’s right to free speech and also found that the banner did not constitute protected speech as Frederick was not advocating a political message, such as the legalization of marijuana.. The Court concluded that given the dangers of illegal drug use, “[t]he First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers”. The Court did not reach the question of qualified immunity, although Justice Breyer in his concurring opinion wrote that he would have decided the case based on that issue, finding that the principal was protected against any monetary damages due to qualified immunity.
Justice Thomas wrote a concurring opinion that is worth reading by any administrator. He joined in the majority opinion, although, after an extensive review of the history of discipline in American public schools, he wrote that in his view, students should have no rights of free speech in public schools.
The Supreme Court’s ruling is certainly a victory for public schools. In the balance between maintaining safe schools and the exercise of student speech rights, the scales in this case clearly tipped in favor of the schools. The primary consideration of the Court in that “tip” was the fact that the student speech here was reasonably seen as advocating for illegal drug use, and was not protected political speech. Note that the result may have been different had the student been advocating a political point of view which included the legalization of marijuana. The judicial line of free speech cases are always fact specific, so no administrator should assume that there is carte blanche to prohibit all or any student speech. Schools should insure that their policies and school handbooks clearly set forth the parameters of permissible student behavior in this regard. Your Board policies should include a strong policy statement about the dangers of illegal drug use, and the fact that any use or advocacy of such illegal use, will not be tolerated on school grounds or at school sponsored activities.