As hard as it is to believe, the Bush administration is at odds with one of its biggest supporters — the religious right — in the Supreme Court battle over "Bong Hits 4 Jesus."
No, the staunchly conservative religious right hasn't gone hippie, but it has allied with some unlikely partners on the left in one of the most important school free-speech cases in a half-century. In fact, the case of Morse vs. Frederick could have serious implications on the limits of speech in public schools for generations to come, with one expert saying that a win for the administration's side could create schools in which any form of speech that isn't directly related to the "stated educational mission" is stamped out and forbidden.
The case stems from 2002, when students in Juneau, Alaska, schools were allowed to leave school grounds to watch the Olympic torch being carried through the streets of their town on the way to Salt Lake City. As cheerleaders and the school band performed, a Juneau-Douglas High School student named Joseph Frederick and some friends unfurled a 14-foot banner that read "Bong Hits 4 Jesus" just as cameras were passing them.
Principal Deborah Morse demanded that Frederick — who had clashed with school officials in the past and has admitted he flew the banner to tweak administrators — take down the banner. He claimed it was just a joke derived from a nonsensical phrase he'd seen on a snowboard and was meant only to get him on television, not to condone drugs or religion. When Frederick refused to roll up the banner, Morse ripped it down and gave him a 10-day suspension, saying he was on a school-sponsored outing and it was her right to prevent him from espousing a view that could be seen as damaging to other students.
Frederick sued, asserting his free-speech rights had been violated and, so far, he's won in court. In the subsequent court cases, the school has argued that it had a right to limit speech that promotes illegal behavior and runs counter to school policy, such as promoting a pro-drug message.
Now Frederick awaits the Supreme Court's take on the first major case pitting school administrators against dissenting students since the Vietnam-era Tinker vs. Des Moines School District, in which the court ruled that students could wear black armbands to school to protest the Vietnam War.
Though the court ruled after Tinker that schools have the right to limit student speech that is deemed vulgar or offensive and to control the content of school newspapers, the strange bedfellows in this case have aligned to fight the limitation of speech that could result in what some are calling "viewpoint censorship," which Christian lawyers argue could run the gamut from anti-abortion T-shirts to anti-war banners to Bible clubs. It is because of that fear — that a loss by Frederick could have a chilling effect on free speech of all kinds in schools — that such traditional foes as gay-rights, free-speech and religious-rights organizations have banded together in support of the now 23-year-old Frederick.
The Bush administration has lined up behind the principals and the Juneau School Board, who are represented by notorious former Whitewater independent counsel Kenneth Starr, while Frederick has garnered support from the American Civil Liberties Union and the National Coalition Against Censorship, as well as groups that have traditionally supported the religious right.
Among the groups that have submitted briefs in support of Frederick and have typically filed suit and spoken on behalf of the religious right in free-speech cases in the past are the Rutherford Institute, whose president, John Whitehead, said he got involved because of what he sees as the emerging "zero tolerance" polices in schools.
"Schools have become like prisons, where students are discouraged from using free speech and there's this draconian atmosphere," he said. "When someone who is on a private sidewalk and said he was joking around and not advocating drugs or religion and was not on public ground ... the point of the case is, 'Can a school extend its authority off grounds and punish someone for a free-speech issue?' "
Whitehead said the Supreme Court has been very clear in the past that school administrations can control obscene speech, but if a phrase like "bong hit" is now considered obscene, he thinks we're in trouble.
"The Bush administration has a drug phobia," he said. "And I think they're wrong on this case. I don't think they see it as a religious issue but as a drug issue. We don't see it as a drug issue, we see it as a free-speech one."
Though the Rutherford Institute has supported the administration in the past, Whitehead said he's adamant about opposing the White House this time because his group is primarily a free-speech one. But he sees the support from staunch religious-rights law organizations such as Pat Robertson's American Center for Law and Justice and the Christian Legal Society as speaking to the bigger issues at stake.
"They want to make sure people can hand out bibles in front of schools ... or anti-war pamphlets," Whitehead said.
What they might get, though, according to University of Michigan Law School professor Douglas Laycock, an expert on constitutional issues involving religion, is a ruling that says students cannot advocate anything that is a violation of school rules, such as drugs.
"What the Bush administration is asking for high schools would give them discretion to suppress any speech that is inconsistent with what the school defines as part of its mission," he said. "Which would be anything they have a notion to suppress."
With schools around the country already restricting what students can post on their MySpace pages, making athletes sign no-drug pledges and get drug tested, and bouncing students for wearing T-shirts with messages they consider offensive or disruptive, the free-speech battleground in hallways has been red-hot for several years. But Laycock said the ruling in this case could have far-reaching effects because of the vague way the case against Frederick is being pursued.
"Lots of schools are saying we don't do controversy or politics, and our mission is to create a calm, quiet learning environment, and anything controversial is inconsistent with that," he said, explaining that Starr has seized on what Laycock described as an out-of-context reading of an earlier school-speech case as the thrust of his argument. "In that case [Bethel vs. Fraser, 1986] it was not about ideas, but vulgarity. A student was running for class president and gave a speech at a student assembly that was one sexual pun after another and he got suspended. He sued and the court ruled that the school could require that messages be delivered in appropriate ways and prevent things that are inconsistent with their fundamental mission."
Taken out of context by Starr, Laycock said, the phrase is being used to label any "inconsistent" speech in an open-ended way, which could run the risk of encompassing anything from anti-war speeches to religious language to any anti-authority opinions. In the case of the Juneau School Board, as part of its requirement to receive federal money under the 1994 Safe and Drug-Free Schools and Communities Act, its mission includes the opposition of illegal drug use, according to The New York Times. "I don't think the court will go there," Laycock said, "but they've moved an awfully long way to the right, and that seems to be what the administration wants.
The Times reported that Starr seemed eager to go up against many of his old cronies. "It's reassuring to have lots of friends of liberty running around," he said in what was described as a cheerful tone. "I welcome this outpouring because it will help the court see that it shouldn't go too far either way."