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Frederick v. Morse Case Brief
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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