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No. 06-278 IN THE …
Tags: c school, educational mission, illegal drug use, illegal substances, kenneth w starr, kirkland ellis, ninth circuit, petitioners, public school authorities, respondent, school environment, school officials, south figueroa street, speech case, student speech, supreme court of the united states, table of authorities, united states court, united states court of appeals, writ of certiorari,Pages: 26
Language: english
Created: Mon Mar 12 08:47:16 2007
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No. 06-278
IN THE
Supreme Court of the United States
DEBORAH MORSE; JUNEAU SCHOOL BOARD,
Petitioners,
v.
JOSEPH FREDERICK,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
REPLY BRIEF FOR PETITIONERS
KENNETH W. STARR
Counsel of Record
RICK RICHMOND
ERIC W. HAGEN
KIRKLAND & ELLIS LLP
777 South Figueroa Street
34th Floor
Los Angeles, CA 90017
(213) 680-8400
Attorneys for Petitioners
March 12, 2007
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES........................................................ ii
I. THIS IS A STUDENT SPEECH CASE. ......................... 4
II. PETITIONERS DID NOT VIOLATE THE FIRST
AMENDMENT BY DISCIPLINING
RESPONDENT FOR PROMOTING ILLEGAL
SUBSTANCES AT A SCHOOL EVENT. .................... 10
A. In the context of constitutional assurances
against unfettered discretion, public school
authorities may restrict student speech that
undermines the "basic educational mission."........... 10
B. Student speech that promotes illegal drug use is
not protected in the public high school
environment.............................................................. 13
C. School officials must have authority to
reasonably interpret student expression in its
context. ..................................................................... 16
III. PRINCIPAL MORSE IS ENTITLED TO
QUALIFIED IMMUNITY............................................. 18
CONCLUSION .......................................................................... 20
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Creighton,
483 U.S. 635 (1987) .................................................22
Bd. of Educ. v. Pico,
457 U.S. 853 (1982) .............................................2, 14
Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675 (1986) ..........................................passim
Blackwell v. Issaquena County Bd. of Educ.,
363 F.2d 749 (5th Cir. 1966)....................................12
Boroff v. Van Went City Bd. of Educ.,
220 F.3d 465 (6th Cir. 2000)....................................17
Brandenburg v. Ohio,
395 U.S. 444 (1967) .................................................18
Brandt v. Bd. of Educ.,
Nos. 06-1999, 06-2573, 2007 WL 641516
(7th Cir. Feb. 20, 2007) ............................................18
Burnside v. Byars,
363 F.2d 744 (5th Cir. 1966)....................................12
Chandler v. McMinnville Sch. Dist.,
978 F.2d 524 (9th Cir. 1992)....................................17
Denno v. Sch. Bd. of Volusia County,
218 F.3d 1267 (11th Cir. 2000)................................12
iii
Eisner v. Stamford Bd. of Educ.,
440 F.2d 803 (2d Cir. 1971) .....................................12
Good News Club v. Milford Cent. Sch.,
533 U.S. 98 (2001) ...................................................14
Goss v. Lopez,
419 U.S. 565 (1975) .............................................2, 14
Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,
336 U.S. 271 (1949) .................................................10
Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260 (1988) ..........................................passim
Malley v. Briggs,
475 U.S. 335 (1986) ...........................................20, 21
McCann v. Fort Zumwalt Sch. Dist.,
50 F. Supp. 2d 918 (E.D. Mo. 1999) ..........................7
Muller by Muller v. Jefferson Lighthouse Sch.,
98 F.3d 1530 (7th Cir. 1996)....................................12
Nicholson v. Bd. of Educ. Torrance Unified Sch. Dist.,
682 F.2d 858 (9th Cir. 1982)....................................21
Pyle By & Through Pyle v. S. Hadley Sch. Comm.,
861 F. Supp. 157 (D. Mass. 1994)............................19
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) .................................................13
Saxe v. State Coll. Area Sch. Dist.,
240 F.3d 200 (3d Cir. 2001) .................................2, 14
iv
Schenck v. United States,
249 U.S. 47 (1919) ...................................................19
Thomas v. Bd. of Educ.,
607 F.2d 1043 (2d Cir. 1979) .....................................7
Tinker v. Des Moines Cmty. Sch. Dist.,
393 U.S. 503 (1969) ..........................................passim
United States v. Lanier,
520 U.S. 259 (1997) .................................................21
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ...................................................2
Williams v. Spencer,
622 F.2d 1200 (4th Cir. 1980)......................15, 17, 21
Wilson v. Layne,
526 U.S. 603 (1999) .................................................21
School District Rules
Juneau School Board Policy 1240..........................................2
Juneau School Board Policy 5520....................................7, 19
Juneau School Board Policy 5600..........................................7
Juneau School Board Policy 5850......................................6, 7
v
Other Authorities
Allan E. Korpela, Annotation, Tort liability of public
schools and institutions of higher learning for
injuries resulting from lack or insufficiency of
supervision, 38 A.L.R.3d 830 (1971 & Supp.
2007)...........................................................................9
Revathy Kumar et al., Effects of School-Level Norms on
Student Substance Abuse, 3 Prevention Sci. 105
(June 2002) ...............................................................14
Motion Picture Ass'n of Am., What do the ratings
mean?, available at
http://mpaa.org/FlmRat_Ratings.asp........................15
3 James A. Rapp, Education Law (2006)...............................7
1
Respondent and his amici do not quarrel with the
proposition that advocating illegal drug use by minors is out
of place in our nation's public schools. To the contrary, they
accept the schools' fundamental interest in discouraging the
use of illegal substances. Resp. Br. at 6 ("There is no dispute
that schools have an important message to deliver regarding
the perils of drug abuse."); see, e.g., ACLJ Amicus Br. at 10-
11 ("The physical and emotional vulnerability of youth . . .
can justify more intrusive measures to detect and halt drug
abuse.").1
Nevertheless, respondent and his amici suggest that
petitioners have imposed a "pall of orthodoxy" over the
Juneau-Douglas High School by prohibiting messages that
promote illegal drug use. Resp. Br. at 12. They are
mistaken. The same Juneau School Board policy that
prohibits advocacy of illegal drug use explicitly recognizes
that "[s]tudents will not be disturbed in the exercise of their
constitutionally guaranteed rights to assemble peaceably and
to express ideas and opinions." Pet. App. 53a. Likewise, the
School Board embraces students' rights to "explore fully and
fairly all sides of . . . controversial issues." Juneau Sch. Bd.
Policy 1240, available at http://www.jsd.k12.ak.us/
1 See also Drug Policy Alliance Amicus Br. at 29 (acknowledging "the
inestimable seriousness of the problem of youth drug abuse"); Liberty
Legal Inst. Amicus Br. at 14 ("The use of drugs is a criminal offense, and
whatever disagreement there may be about the efficacy of the drug laws,
or about the need for laws against adult use of the less dangerous illegal
drugs, there is overwhelming consensus in the polity that adults should
discourage children from using drugs."); Nat'l Coal. Against Censorship
Amicus Br. at 7 ("Amici curiae share Petitioners' and the Government's
commitment to promoting the health and well-being of our nation's youth
by discouraging illegal drug use . . . .")' Rutherford Inst. Amicus Br. at 27
(noting "the dangers and perils of drug use"); Students for Sensible Drug
Policy Amicus Br. at 9 ("Students often experience disproportionate pain
in seeing family members, friends, and classmates suffer from drug
abuse.").
2
newdistrict/departments/boardofeducation/policymanual/_
displayPolicy.php?recid=13.2
Under no reasonable interpretation of this record were
petitioners suppressing discourse over drug policy or any
other political, religious, or ideological issue--in or out of
the classroom. Nor are Juneau's student conduct rules
challenged as overbroad or vague. Cf. Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001) (Alito, J.).3
This case is also far removed from freedom-of-conscience
concerns, cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624 (1943), or attempts to restrict access to books or
educational materials. Cf. Bd. of Educ. v. Pico, 457 U.S. 853
(1982). Rather, this case involves the enforcement of a valid
student conduct rule that seeks to protect minors from illegal
drug use--one of the most pressing social problems plaguing
our nation's schools. See Pet. Br. at 26-30.
Even some of respondent's civil liberties champions
accept the proposition that schools have authority to suppress
pro-drug messages. The Liberty Legal Institute recognizes
that "the age of the students and the educational context may
justify restrictions on advocacy of prohibited conduct in
public schools." Liberty Legal Inst. Amicus Br. at 15.
"Education of children, and protecting children from self-
destructive behavior," they reason, "is at the core of the
mission entrusted to schools." Id. Exactly so. The
Rutherford Institute similarly acknowledges that "the school
arguably has a compelling interest in insuring a drug-free
2 The Board also mandates that students and parents be involved in the
"collaborative process" of reviewing and revising school policies,
regulations, and procedures that govern "student behavior and safety."
J.A. 98.
3 Respondent does not suggest that he was denied fair notice or due
process. Cf. Goss v. Lopez, 419 U.S. 565 (1975).
3
environment within the school and in proscribing pro-drug
messages on campus or where students formally represent the
school system in academics, athletics, or extracurricular
activities or on other school properties." Rutherford Inst.
Amicus Br. at 24-25. We agree.4
Respondent seeks to avoid the precise issue of the case--
schools' authority to proscribe pro-drug messages. See Resp.
Br. at 7 ("This case is not about drugs."). He and his amici
argue (unremarkably) that school officials should not have
"unbridled discretion" to regulate religious and political
speech. We agree. Vital constitutional assurances prevent
such unfettered exercise of authority. We thus have no
quarrel with Tinker v. Des Moines Community School
District, 393 U.S. 503 (1969), and the free-speech principles
it embodies.
Agreement ends, however, when respondent and his
amici choose to underread this Court's decisions in Bethel
School District No. 403 v. Fraser, 478 U.S. 675 (1986), and
Hazelwood School District v. Kuhlmeier, 484 U.S. 260
(1988). The "special characteristics" of the public school
setting call for judicial deference to the enforcement of
reasonable school rules as school officials carry out their
"basic educational mission." Kuhlmeier, 484 U.S. at 267;
Fraser, 478 U.S. at 685. Respondent thus seeks to recast this
case as about adult speech in a public forum. This Court
should reject that re-characterization, just as the courts below
did. Analyzed properly, the facts establish--and the law
demonstrates--that petitioners did not violate respondent's
First Amendment rights and that Juneau-Douglas High
4 In contrast to Rutherford's suggested special limitations, this
"compelling interest" extends to students attending school-sponsored
events held off campus.
4
School's principal, Deborah Morse, is entitled to qualified
immunity.
I. THIS IS A STUDENT SPEECH CASE.
Both the district court and the court of appeals--as well
as the superintendent and the school board--agreed that the
dispute at hand arose in the factual setting of a school event.
See Pet. App. 5a ("[T]he facts established by the submissions
on summary judgment make this a student speech case.");
Pet. App. 34a-35a ("[T]here is no issue of fact as to whether
or not this was a school-sponsored activity. . . . Frederick's
presence at the event put him under the school's
authority.").5
Respondent (and some of his amici) nonetheless insist
that the factual record supports a finding that this is a "speech
on a public sidewalk" case rather than a "student speech"
case. Resp. Br. at 33-36; Drug Policy Alliance Amicus Br. at
4, 18-21; Nat'l Coalition Against Censorship Amicus Br. at
7-18; Rutherford Inst. Amicus Br. at 10-27; Student Press
Law Ctr. et al. Amicus Br. at 6-15.6 They are wrong.
Respondent and these amici ignore a wealth of undisputed
facts:
· The banner incident "occurred during school hours, at
a time when parents expected their children to be
under school supervision." Pet. App. 35a; see Pet.
5 See also Pet. App. 69a ("[T]he Board of Education affirm[s] the
suspension of [Joseph Frederick] for the reasons given in the
Superintendent's decision."); Pet. App. 63a ("I believe it unreasonable to
find that Joseph can stand in the midst of his fellow students, during
school hours, at a school-sanctioned activity and claim he is not at school.
His rights are those of a student at school.").
6 Respondent's other amici analyze this case solely as a student speech
case.
5
App. 5a-6a ("School had started . . . . Frederick was a
student, and school was in session.").
· Principal Morse authorized teachers to allow their
classes to observe the relay as it passed in front of the
school. J.A. 23; Pet. App. 24a-25a, 34a.
· The student body, consisting of more than 1,000
students, congregated on both sides of the street in
front of the school. J.A. 56; Pet. App. 24a-25a.
· Respondent stood directly across the street from
school with a group of his classmates and one
similarly-aged non-student.7 J.A. 29, 35, 36; Pet.
App. 2a, 25a, 70a.
· The high school pep band and cheerleaders were
organized to greet the relay participants as they
passed the school. Pet. App. 4a, 34a; J.A. 23.
· District personnel, teachers, and administrators were
interspersed throughout the student body and were
assigned supervisory roles. J.A. 23, 47-56; Pet. App.
34a; cf. Pet. App. 4a-5a, 17a.
· The School District spent funds on the event. In
addition to school authorities assisting in the event's
preparations and remaining on supervisory duty
during the relay, the District also made supervised
release time and transportation available for students
7 Respondent refers to the one identified non-student, Eli Geil, as "an
adult on leave from duty in the U.S. Army." Resp. Br. at 3. This
factually insignificant (and legally irrelevant) foray need not give this
Court pause. In any event, respondent is mistaken. Even his record
citation (J.A. 65) indicates that this person enlisted some months after the
events in question. According to school district directory information, at
the time of the banner incident, the would-be adult non-student was
actually sixteen years old and had been a 9th-grader at Juneau-Douglas
High School during the prior school year.
6
from schools not along the relay route so that they
could participate in the event. J.A. 23; Pet. App. 63a.
· School rules provided that "[p]upils who participate
in approved social events and class trips are subject to
district rules for student conduct." Pet. App. 58a.
The student handbook likewise explained that the
discipline guidelines applied to infractions committed
"at school sponsored/sanctioned functions." J.A. 100,
103.
These facts firmly establish that respondent was a student
subject to school authority at the time he unfurled his banner.
As such, his First Amendment rights must be "applied in
light of the special characteristics of the school
environment." Tinker, 393 U.S. at 506. Respondent created
no genuine issue of fact in this respect. Pet. App. 6a, 34a.
Having failed to convince the superintendent, the school
board, the district court, and the court of appeals that he was
not under the school's aegis, he trots out again several
previously-rejected points: (i) he was eighteen years old;
(ii) he was not standing on school property; (iii) he had not
been present at school prior to showing up to the location
where he unfurled his banner; (iv) the relay was a public
event; and (v) the event was (allegedly) unsupervised. Resp.
Br. 34-35. We briefly respond to each.
Respondent provides no authority supporting the theory
that an eighteen-year-old high school student is entitled to
ignore school disciplinary rules (including those governing
expressive conduct).8 Nor does he muster support for the
proposition that school rules are inapplicable to high school
students participating in school activities located off
8 To the contrary, the Court has observed that "older students," through
"their conduct and deportment in and out of class," set an important
example for younger students. Fraser, 478 U.S. at 683.
7
campus.9 Absent such authority, Juneau's student conduct
policies unequivocally state that the rules apply during off-
campus school events, Pet. App. 58a, and nowhere do the
rules provide for an age-based exemption.
Respondent's tardy arrival at school is likewise
unavailing. He could have selected myriad locations along
the ten-mile relay route to carry out his publicity stunt. He
instead chose to position himself front-and-center before the
assembled student body, where his banner would be visible
to his fellow students. School authorities were responsible
for the safety and good conduct of students in attendance,
including respondent. J.A. 24, 96; Pet. App. 53a, 58a. By
joining in with his fellow students and participating in the
school's viewing of the relay, respondent voluntarily
submitted to the school's authority.
In addition, the school's assembled viewing of the relay
(whether labeled "school sponsored," "school sanctioned," or
"school authorized") was no less of a school event by virtue
of the fact that the relay itself was a community-wide event
(with public and private sponsors). Students on field trips
unquestionably remain entrusted to school authorities' care
9 Some of respondent's amici cite cases where students' off-campus
expressive activities were found to be immune from school punishment.
None of the examples involve student expression taking place during an
off-campus school event--let alone at an event where the students
gathered together on and adjacent to campus. Compare, e.g., Thomas v.
Bd. of Educ., 607 F.2d 1043, 1048 (2d Cir. 1979) (invalidating student
suspensions for distributing underground newspaper that was published
and distributed off campus and not during any school event), with
McCann v. Fort Zumwalt Sch. Dist., 50 F. Supp. 2d 918 (E.D. Mo. 1999)
(upholding school's prohibition against student band playing song "White
Rabbit" at off-campus school event). In addition, as a matter of hornbook
education law, student disciplinary authority extends to off-campus
school-related activities. 3 James A. Rapp, Education Law §
9.03[5][b][i] (2006).
8
and supervision. This jurisdictional responsibility remains
regardless of who sponsors the exhibit (or event).
Finally, respondent asserts (in his restated "Questions
Presented") that the event was "not . . . supervised by the
school." Resp. Br. at i. Not so. Respondent's only evidence
consists of affidavits from three students, two of whom stated
they were co-participants in the banner incident. J.A. 32-33,
36-38. These three students variously stated that (i) they
were "released" to see the relay; (ii) they were not required to
stay with their classes; (iii) some students were running
around, throwing snowballs, or otherwise acting up; and
(iv) some students slipped away or did not attend the event.
Id.
None of the three students claim that they had been
released from school. Rather, they state that teachers
permitted students to leave their classrooms for the purpose
of watching the relay as it passed in front of the school. J.A.
32 ("[M]y teacher released us to go see the relay . . . ."); J.A.
36 ("[T]he school allowed students to go out to the street to
watch [the relay]."); J.A. 38 ("[T]he teacher announced that
we could go watch [the relay]."). Cf. J.A. 23 ("Students were
not `released' from school . . . ."); J.A. 47, 49, 51, 53 (same).
True, most teachers did not require students to stay with
their particular classes, but students were required to remain
with the student body. J.A. 47, 49, 51, 53. So too, some in
the crowd became unruly--namely, students in Frederick's
vicinity--and others may have managed to sneak away. J.A.
56. But respondent proffers no authority for the odd (and
unworkable) proposition that schools relinquish supervisory
authority if some students break the rules.10
10 Indeed, if a student had been injured during the school's torch relay
viewing, the school could have faced potential liability for negligent
supervision. See generally Allan E. Korpela, Annotation, Tort liability of
9
In any event, official supervision did exist. Principal
Morse declared (without contradiction) that "teachers,
administrators and other staff were interspersed throughout
the body of students at appropriate intervals for maintenance
of crowd control." J.A. 56. In addition, the student affiants'
teachers confirmed (again, without contradiction) that they
"assist[ed] in providing crowd control with the student body
in general." J.A. 47-54. This is confirmed by respondent
himself, who acknowledges that he and his friends "could see
some school officials trying to stop [other students from
throwing things]." J.A. 29. Nor is there any dispute that
Principal Morse, who responded immediately to respondent's
banner display, supervised the event:
I was stationed directly in front of the high
school supervising crowd control. I was assisted
by other administrators, classroom teachers and
school staff. I passed back and forth across the
street on numerous occasions, as required, in
order to maintain proper supervision of the
student body.
J.A. 23 Indeed, it is uncontroverted that Principal Morse
approached Frederick and his friends at least twice--once to
investigate the throwing of snowballs launched from their
vicinity and then again when Frederick unfurled his banner.
J.A. 24. The pivotal point remains--official school
supervision existed at the event.
The material facts are clearly established. Frederick has
shown no error in the concurrent findings by the two courts
below. Cf. Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,
336 U.S. 271, 275 (1949). As the Ninth Circuit succinctly
public schools and institutions of higher learning for injuries resulting
from lack or insufficiency of supervision, 38 A.L.R.3d 830 (1971 & Supp.
2007).
10
observed in the opening sentence of its opinion: "This is a
First Amendment student speech case." Pet. App. 1a. The
Tinker-Fraser-Kuhlmeier framework therefore governs.
II. PETITIONERS DID NOT VIOLATE THE FIRST
AMENDMENT BY DISCIPLINING RESPONDENT
FOR PROMOTING ILLEGAL SUBSTANCES AT A
SCHOOL EVENT.
A. In the context of constitutional assurances against
unfettered discretion, public school authorities
may restrict student speech that undermines the
"basic educational mission."
Respondent and his amici vigorously attack a central
unifying principle from this Court's First Amendment
student speech jurisprudence: "A school need not tolerate
student speech that is inconsistent with its `basic educational
mission, even though the government could not censor
similar speech outside the school.'" Kuhlmeier, 484 U.S. at
266 (citing Fraser, 478 U.S. at 685). This, they fear, is too
broad. To cabin its reach, respondent suggests that this
principle has no application beyond the specific facts of the
Court's Tinker-Fraser-Kuhlmeier trilogy. Resp. Br. at 25.
Some of his amici dismiss the principle as a "novel"--even
"dangerous"--standard. See, e.g., Nat'l Coal. Against
Censorship et al. Amicus Br. at 19; Lambda Legal Def. &
Educ. Fund Amicus Br. at 13-14. Their stated concern is that
public schools would have "unbridled discretion" to
randomly define and oppressively enforce whatever
"missions" they choose for themselves. See, e.g., Liberty
Counsel Amicus Br. at 6.
What respondent and his amici ignore is that school
board officials who develop student conduct rules, and
administrators who enforce such rules, are constrained by the
overarching requirement of "reasonableness" in the context
of constitutional limitations on state power. The Free Speech
Clause, observed the Tinker Court, permits "reasonable
11
regulation of speech-connected activities in carefully
restricted circumstances." 393 U.S. at 513; cf. id. at 517
(Black, J., dissenting) (identifying "reasonableness" as the
majority's standard for judicial review of school disciplinary
regulations).11 In the Tinker Court's view, the school
district's ban on armbands, which was based solely on "an
urgent wish to avoid the controversy which might result from
the expression," was an unreasonable regulation. 393 U.S. at
510. The Tinker ban could have passed constitutional
muster, however, if school officials had shown "interference,
actual or nascent, with the schools' work." Id. at 508. The
Fraser standard for regulating "offensive" speech is likewise
properly understood as one of "reasonableness."12 Justice
Brennan, in concurring, opined that it was "not
unreasonable" for school officials to condemn Matthew
Fraser's language. 478 U.S. at 689 & n.2 (Brennan, J.,
concurring).13 Similarly, in Kuhlmeier, the Court employed a
"reasonable basis" standard in reviewing a school district's
11 Tinker relied on lower court decisions applying a reasonableness
standard in reviewing student speech regulations. Id. at 505 & n.1, 509,
511, 513 (citing Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966);
Blackwell v. Issaquena County Bd. of Educ., 363 F.2d 749 (5th Cir.
1966)). See also Eisner v. Stamford Bd. of Educ., 440 F.2d 803, 810 (2d
Cir. 1971) ("Tinker as well as other federal cases, e.g., Blackwell . . . and
. . . Burnside . . . , establish that, if students choose to litigate, school
authorities must demonstrate a reasonable basis for interference with
student speech, and that courts will not rest content with officials' bare
allegation that such a basis existed.").
12 See Denno v. Sch. Bd. of Volusia County, 218 F.3d 1267 (11th Cir.
2000) (describing "reasonableness or balancing standard of Fraser");
Muller by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1543 (7th
Cir. 1996) (applying "reasonableness" standard under Fraser).
13 In Justice Brennan's view, the student's speech was mild by adult
standards, but he nevertheless deferred to the "discretion" of school
officials who concluded that the speech "disrupted the school's
educational mission." Id. at 687-89 (Brennan, J., concurring).
12
censoring of student newspaper articles. The Court upheld
the school officials' actions as "reasonably related to
legitimate pedagogical concerns." 484 U.S. at 273.
In sum, the analyses applied in the Tinker-Fraser-
Kuhlmeier trilogy reflect a balancing of interests. A
student's interest in freedom of expression is necessarily
weighed against the school's interest in maintaining order,
inculcating socially appropriate norms, and achieving
educational goals. This balancing or reasonableness standard
extends to public schools' definitions of their basic
educational mission.
Respondent and his amici further contend that a school's
educational mission could be defined so broadly that non-
disruptive, non-offensive, and non-school-sponsored
religious and political viewpoints could be suppressed.
Untrue. Important constitutional safeguards protect against
this. In the case of religious or anti-religious expression,
student free speech rights are further informed by the
Establishment Clause, the Free Exercise Clause, and the
equality principle unifying our system of free expression.
Under this well-developed constitutional framework, a
school's educational mission cannot be to inculcate religious
beliefs or to favor one religion over others. Santa Fe Indep.
Sch. Dist. v. Doe, 530 U.S. 290, 309 (2000). So too, schools
cannot seek to avoid controversy by banning religious speech
or imposing secular humanistic worldviews. Good News
Club v. Milford Cent. Sch., 533 U.S. 98, 111-12 (2001).
Student political expression likewise enjoys protection,
most notably for reasons elucidated in Tinker, which stands
for the proposition that schools may not suppress student
political expression merely to avoid controversy. 393 U.S. at
513. Likewise, a school's educational mission cannot be the
suppression of ideas motivated by "narrowly partisan or
political" concerns. Pico, 457 U.S. at 870. Indeed, in the
various opinions of Pico, no member of the otherwise
13
sharply divided Court took issue with this basic proposition.
Id. (plurality opinion); id. at 877-78 (Blackmun, J.,
concurring in part and concurring in the judgment); id. at 907
(Rehnquist, J., dissenting).
Other Tinker-related safeguards exist to prevent schools
from devolving into pockets of oppression. Student speech
regulations are facially challengeable on overbreadth and
vagueness grounds. Saxe, 240 F.3d at 214. Students are
entitled to fair notice of the scope of speech restrictions and
may challenge punishment on due process grounds. Goss,
419 U.S. at 574-75. Here, respondent advanced no such
facial challenge to Juneau School Board policies, nor did he
assert any procedural due process violation. In short,
allowing schools to fashion and enforce reasonable policies
to protect their basic educational mission is fully compatible
with our constitutional order.
B. Student speech that promotes illegal drug use is
not protected in the public high school
environment.
Respondent equates his pro-marijuana banner with John
Tinker's passive armband wearing. Resp. Br. at 21. To state
the obvious, the two messages are vastly different.
Promotion of illegal drug use and the drug culture is uniquely
undeserving of First Amendment protection in the school
setting. Pro-drug messages targeted at adolescents foster a
social harm distinctly damaging and disruptive.14 "Students
14 Judicial acknowledgement that pro-drug messages inherently disrupt
the work of the schools is illustrated by Williams v. Spencer, 622 F.2d
1200, 1205-06 (4th Cir. 1980)--an opinion that neither respondent nor
his amici criticize. At least one of respondent's amici embraces Williams
as a proper example of student discipline because the pro-drug message
involved a "direct, unambiguous endorsement of illegal activity" that had
no literary value or similar value, such as a serious discussion of drugs.
Students for Sensible Drug Policy Amicus Br. at 21; accord Resp. Br. at
14
are more likely to use substances when the norms in school
reflect a greater tolerance for substance use." Revathy
Kumar et al., Effects of School-Level Norms on Student
Substance Abuse, 3 Prevention Sci. 105, 121 (June 2002).
See D.A.R.E. Am. et al. Amicus Br. at 11-12.15 Allowing
students to dilute a school's anti-drug message--which is an
integral part of the district's health curriculum--undermines
the basic educational mission.
Fraser likewise supports suppressing respondent's
banner. Respondent and his amici try to limit Fraser to
sexual speech. But Fraser allows regulation of categories of
speech much broader than sexual innuendo--in particular,
speech that offends the "sensibilities of others" (including
fellow students) or that does not reflect "socially appropriate
behavior." 478 U.S. at 681. Respondent ignores the
rationale behind the Fraser Court's more expansive
allowance of speech restrictions in public high schools--that
24 n.17. Notably, the "unambiguous" pro-drug message in Williams was
a store's advertisement for bongs. See 622 F.2d at 1203 ("The
advertisement primarily promoted the sale of a waterpipe used to smoke
marijuana and hashish."). If prohibiting a small print ad for bongs is
acceptable, it follows logically that a 14-foot "bong hits" banner can be
suppressed.
15 The drug policy reform organizations supporting respondent take issue
with the effectiveness of certain campaigns to discourage teenage drug
use. See Drug Policy Alliance et al. Amicus Br. at 17; Students for
Sensible Drug Policy Amicus Br. at 20. This Court need not resolve a
policy debate on the efficacy of drug-use prevention programs here. That
is a burden belonging to local school officials. If school officials
reasonably determine that proscribing pro-drug messages will advance
their interest in discouraging teenage drug use, federal courts should not
meddle with such a determination.
15
certain types of expression are not suitable for adolescents.
Id. at 683-85.16
Respondent further seeks to narrow Fraser's reach to
student expression that is "disruptive" and "school
sponsored." Resp. Br. at 13-15, 26. Not even the Ninth
Circuit goes so far. See Chandler v. McMinnville Sch. Dist.,
978 F.2d 524, 529 (9th Cir. 1992) (clarifying that Fraser
applies even absent disruption and school sponsorship).
Indeed, this Court explicitly rejected any notion that Fraser
required disruption. Kuhlmeier, 484 U.S. at 271 n.4. And
Fraser itself did not turn on any school-sponsored aspect of
Matthew Fraser's speech.17
Respondent and his amici accuse petitioners of viewpoint
discrimination18 as if this tenet of First Amendment applied
fully to the public school setting. In any event, this Court's
student-speech doctrine does not forbid it in all
circumstances. Tinker, for instance, would allow curtailment
of viewpoint-based speech if the expression was reasonably
likely to interfere with the work of the schools. 393 U.S. at
508, 513; see, e.g., Williams, 622 F.2d at 1205-06. Similarly,
16 By analogy, film industry ratings reflect commonly-accepted age-
appropriate content categories, namely, sex, violence, language, and
drugs. See Motion Picture Ass'n of Am., What do the ratings mean?,
available at http://mpaa.org/FlmRat_Ratings.asp ("There is no drug use
content in a PG-rated film. . . . Any drug use content will initially require
at least a PG-13 rating. . . . An R-rated film may include . . . drug abuse,
. . . so parents are counseled in advance to take this advisory rating very
seriously. . . . The reasons for the application of an NC-17 rating can
be . . . drug abuse . . . which, when present, most parents would consider
too strong and therefore off-limits for viewing by their children.").
17 If Fraser's sexually-laced speech to a voluntary school assembly
constituted "school-sponsored" speech, then the facts here are equally
compelling that Frederick's sign reasonably bore the school's imprimatur.
18 The assertion is ironic in view of Frederick persisting, "I wasn't trying
to spread any idea." J.A. 68.
16
assuming that a ban against promoting drugs can constitute
viewpoint discrimination, then the Court endorsed such an
approach in Kuhlmeier, in the context of school-sponsored
student expression. 484 U.S. at 272. Under respondent's
theory, so long as classroom work is not disrupted, students
are free to use their school day to promote (to a captive
audience of their schoolmates) whatever antisocial activity
they fancy. Contra Boroff v. Van Went City Bd. of Educ.,
220 F.3d 465, 470 (6th Cir. 2000) (upholding prohibition of
certain rock band t-shirts due to band's overt ties to suicide,
violence, and drug abuse), cert. denied, 532 U.S. 920 (2001).
In respondent's view, school authorities should be powerless
to remove such counterproductive messages from the school
environment.
Fundamentally, respondent and his amici fail to discern
the "special characteristics" of the school environment.
Tinker, 393 U.S. at 506. They seek to thrust into the public
school milieu the full robust conception of adult free speech
rights. See, e.g., Resp. Br. at 30 (arguing that public high
school students have a right to promote criminal activity in
school); Drug Policy Alliance Amicus Br. at 6 n.1 (asserting
that advocacy of unlawful conduct is protected here under
Brandenburg v. Ohio, 395 U.S. 444, 447 (1967)). Case law
involving adult speech in a public forum is only useful to the
extent that principles are recast to take into consideration the
custodial and tutelary nature of the school setting and the in
loco parentis responsibilities of school authorities. Viewed
through the "special characteristics" lens, banning students
from promoting illegal drug use is entirely reasonable.
C. School officials must have authority to reasonably
interpret student expression in its context.
Respondent and some of his amici seem to advocate
comprehensive, non-deferential judicial review of school
officials' decisions to restrict student expression. Resp. Br.
at 25-26; Liberty Legal Inst. Amicus Br. at 3-4. This is
17
unworkable. "Public schools have an interest of
constitutional dignity in being allowed to manage their affairs
and shape their destiny free of minute supervision by federal
judges and juries." See Brandt v. Bd. of Educ., Nos. 06-
1999, 06-2573, 2007 WL 641516, at *5 (7th Cir. Feb. 20,
2007) (Posner, J.).
First Amendment analysis is inevitably contextual.
Schenck v. United States, 249 U.S. 47, 52 (1919). Teachers
and administrators responsible for enforcing student speech
policies are called upon to interpret messages in a variety of
circumstances. These officials are the pivotal (and front-line)
message interpreters. A school official's interpretation of a
student's expression should not be disturbed by a court
unless the interpretation, in its context, is manifestly
unreasonable. See Pyle By & Through Pyle v. S. Hadley Sch.
Comm., 861 F. Supp. 157, 170 (D. Mass. 1994) ("[U]nless
federal courts are to take on the task of assessing, each
morning of the school year, the latest creations of the
adolescent imagination . . . [,] the limits on vulgarity in
secondary schools, assuming a general standard of
reasonableness, are to be defined by school administrators,
answerable to school boards and ultimately to the voters of a
community.").
Principal Morse reasonably understood respondent's
banner as glorifying illegal marijuana use. Respondent offers
no credible alternative meaning.19 He was not punished for
19 Respondent suggests that his banner was a protest of "an earlier
incident in which an assistant principal threatened him with suspension
because he did not stand during the Pledge of Allegiance." Resp. Br. at 2
n.1. No school records or witnesses corroborate this allegation, and
petitioners refute it. In any event, there is no evidence that anyone
viewed or understood respondent's banner as a protest. Frederick's
testimony mentioning the purported Pledge incident was nowhere
included in the district court record. Respondent thus advised the court of
appeals that "this reference is properly disregarded." Partial Opp'n to
18
expressing political or religious views. Pet. App. 62a. He
was suspended because he violated school board policy
against promoting illegal drugs and because he committed
several other infractions before and after the banner incident.
Pet. App. 59a-67a.
Principal Morse's interpretation of the banner has
withstood two administrative appeals and review by the
district court and court of appeals. Pet. App. 6a-7a, 38a, 61a-
62a, 69a. This Court should not disturb that finding, and
should not engage in anything more than a judicial check of
reasonableness.
III. PRINCIPAL MORSE IS ENTITLED TO
QUALIFIED IMMUNITY.
If reasonably competent school officials could disagree
on the lawfulness of Principal Morse's enforcement of school
board policy, then she is still entitled to qualified immunity.
Malley v. Briggs, 475 U.S. 335, 341 (1986). Principal Morse
readily satisfies this test. The reasonably competent school
officials who deemed her actions lawful include
Superintendent Bader and the unanimous Juneau School
Board. See also Nat'l Sch. Bds. Ass'n et al. Amicus Br.; U.S.
Amicus Br. (joined by Dep't of Educ.). If that were not
enough, Chief Judge John Sedwick also agreed that she did
not violate a "clearly established" right. Tellingly, none of
the eighteen amicus organizations supporting respondent
assert that Principal Morse should have been denied qualified
immunity.20 The Ninth Circuit's immunity ruling, which
Appellees' Mot. to Strike Portions of Appellant's Excerpts of R. We
agree.
20 Respondent's only amicus to address qualified immunity suggests that
the district court may have erred in granting immunity to the Juneau
School Board. Ctr. for Individual Rights Amicus Br. at 2. This is of no
moment. Frederick did not appeal the district court's ruling on the school
19
holds Principal Morse to an uncompromisingly high standard
in making predictive judgments about future appellate court
rulings, is incompatible with this Court's teachings. Malley,
475 U.S. at 341.
Respondent asserts that Principal Morse's adherence to
the (unchallenged) School Board Policy 5520 was
"objectively unreasonable." Resp. Br. at 42 & n.29. This is
squarely at odds with this Court's analysis in Wilson v.
Layne, which recognized that reasonable reliance on
established policies and practices may immunize a public
official's actions. 526 U.S. 603, 616-17 (1999). Respondent
thus ignores the contextual particularity required to find a
violation of a "clearly established" right. Id. at 616-17.
Respondent further argues that Ninth Circuit case law
"appl[ied] with obvious clarity" in allowing students' pro-
drug messages. Resp. Br. at 39 (quoting United States v.
Lanier, 520 U.S. 259, 271 (1997)). Not so. Indeed, the
Ninth Circuit previously had cited with approval the Fourth
Circuit's decision in Williams, 622 F.2d 1200, which upheld
a public high school's ban on distributing an underground
newspaper because it contained an advertisement for bongs.
See Nicholson v. Bd. of Educ. Torrance Unified Sch. Dist.,
682 F.2d 858, 863 (9th Cir. 1982) (citing Williams for the
proposition that students' rights "may be modified or
curtailed by school policies that are reasonably designed to
adjust those rights to the needs of the school environment").
Until the Ninth Circuit's decision below, the court of appeals
more seemingly had endorsed the suppression of pro-drug
messages by public high schools.
The Ninth Circuit veered far off the path of this Court's
qualified immunity jurisprudence. As a result, a fourth-
board's immunity, and he does not raise it here. He confined his appeal
to Ms. Morse's immunity.
20
generation teacher and second-generation principal who has
devoted a decade of her teaching career to special education
and ultimately took on the formidable challenge of managing
a large urban public high school, now is subjected to the
"fear of personal monetary liability and harassing litigation."
Anderson v. Creighton, 483 U.S. 635, 638 (1987). That
should not be.
CONCLUSION
For the foregoing reasons, this Court should reverse the
judgment of the Ninth Circuit.
Respectfully submitted,
KENNETH W. STARR
Counsel of Record
RICK RICHMOND
ERIC W. HAGEN
KIRKLAND & ELLIS LLP
777 South Figueroa Street
34th Floor
Los Angeles, CA 90017
(213) 680-8400
Attorneys for Petitioners
March 12, 2007