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Dean Ken Starr of the School of Law is taking on “Bong Hits 4 Jesus.”
Starr is one of three lawyers defending the Juneau School District pro bono in the unusual and controversial Supreme Court case.
The dispute began at a school-sanctioned passing of the Olympic Torch in 2002, when 10 students of Juneau-Douglas High School in Alaska captured cameras’ attention with a 20-foot banner proclaiming “Bong Hits 4 Jesus.”
When principal Deborah Morse ordered them to put it down, then-senior Joseph Frederick refused. He was suspended for 10 days for violating the school’s policy against promoting drugs or alcohol.
Although the event was held off campus, four students held the torch, the school band played, and the entire class was let out of school to watch.
A series of court battles ensued, with Frederick and his supporters at the Alaskan chapter of the ACLU winning the last round. The Ninth Circuit Court of Appeals ruled in March that Morse violated Frederick’s free speech rights and could be held liable for damages.
The district formally appealed the decision to the Supreme Court on Aug. 28, with the assistance of Kirkland & Ellis LLP, where Starr works as counsel.
“Public education is under such stress and strain in our country today, and this judgment just adds to the burden facing all administration,” Starr said, who argues that Morse had authority and even obligation to punish Frederick.
Frederick disputes that he promoted anything illegal. According to the Ninth Circuit’s official records, “Frederick says that the ‘Bong Hits 4 Jesus’ language was designed to be meaningless and funny, in order to get on television, but Principal Morse said that ‘bong hits’ means puffs of marijuana and the words promote marijuana use.”
Frederick also said he originally received a five-day suspension, but the sentence was doubled when he protested.
First Amendment rights to free speech become muddy when mixed with the schools’ responsibility to discourage drug use.
“Federal law requires public schools to maintain a ‘clear and consistent message’ that use of illegal drugs like marijuana is ‘wrong and harmful,’” Eric Hagen, a Pepperdine graduate who is also on the district’s legal team, said in an e-mail. “But now, when teachers or administrators try to enforce such policies, they can be sued and exposed to harsh civil damages awards.”
Four of nine Supreme Court justices must decide to hear the case, which can take about eight weeks. If they do, precedent will be available to both sides.
Frederick’s lawyers point to Tinker v. Des Moines, a 1969 decision reversing two students’ suspension for wearing black armbands to protest the Vietnam War.
Yet in Bethel School District v. Fraser (1986) the court allowed administrators to suspend a student for a speech filled with sexual innuendos, and in 1988 Hazelwood v. Kuhlmeier gave significant control over school newspaper content to school authorities.
These allowances are irrelevant in Fredrick’s case, according to Executive Director of the ACLU in Alaska, Michael Macleod-Ball.
“There needs to be some substantial disruption to the educational process and that wasn’t present in this case,” Macleod-Ball said in an e-mail. “Mr. Starr wants this to be about drugs in school and that’s jut a silly and inflammatory analysis.”
The Juneau school board “specifically prohibits any assembly or public expression that … advocates the use of substances that are illegal to minors.”
Starr refused to speculate on how the case affects Pepperdine students, but school policy states that “Promoting the consumption of drugs or alcoholic beverages may not be undertaken within the confines of University properties or through University-sponsored or approved publications.”
Submitted 09-07-2006
MALIBU, CA
