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Truancy Equals Freedom

SCOTUS begins hearing Morse v. Frederick (a/k/a the "Bong Hits 4 Jesus" case), about which our friend and fellow libertarian Kip asks, “Why is this even a case?” Being both a libertarian and a public school teacher, I’ve paid some attention to this case. I am very concerned about the outcome – which I suspect will go poorly for young Mr. Frederick.

Okay, if you have no idea what case I am talking about, let me bring you up to speed – with some heavy quoting from SCOTUSblog, to which Kip also links.

The core facts that the two sides can agree upon are these: when the Olympic torch was being carried along Glacier Avenue in Juneau, Alaska, on January 24, 2002, 18-year-old Joseph Frederick held up a 14-foot banner with the message, “BONG HITS 4 JESUS.” (“Bong hits” is slang for smoking marijuana.) Glacier Avenue runs in front of Juneau-Douglas High School, where Frederick was enrolled as a senior. School Principal Morse crossed the Avenue, and demanded that the sign be taken down; Frederick refused, and the principal grabbed the sign and crumpled it. Later, Morse suspended Frederick for ten days, citing a variety of infractions of school rules. The Ninth Circuit found a violation of Frederick’s First Amendment rights, and found that the law was so clear on this issue in January 2002 that the principal was not entitled to legal immunity to money damages.

But the agreement on the facts largely ends there. The principal and the Juneau School Board insist that Frederick was taking part in a school-sponsored event – the students were let out of school to attend the torch-passing rally, and school cheerleaders and pep band took part; the students were closely supervised; school system money was spent to bus students in from other schools; the event occurred during school hours, and four students were torch-bearers. Frederick with equal fervor insists that this was a public event in a public forum (a sidewalk next to a public street), he was not on school property at the time, he was an 18-year-old adult, and he had not even gone to class that morning so was not among students released to go to the rally.

Now, I’d have to say it’s pretty clear that citizens have the right to unfurl banners with ambiguous religion/drug messages. It’s also pretty clear that the student would not have been allowed to do this in his school cafetorium – his suspension would have stood, and he never would have made it anywhere near the Supreme Court. But he wasn’t on school property, so he’s golden.

Except that the defense will argue convincingly that the torch rally was a school-sponsored event, much like a field trip. I am (annually) a field trip sponsor, and it has been made very clear to me (every damn year) that (to turn a phrase) school officials do not shed their in loco parentis responsibilities at the schoolhouse gate. I am not even allowed to change the rules of dress code or conduct just because I’ve taken the students to an amusement park to study the physics of the rides (not at taxpayer expense, settle down). And incidentally, this does not magically change when the student hits 18, so Joseph Frederick’s being that age at the time of this incident is probably completely irrelevant. The fact that Juneau-Douglas High School brought students to participate in this Olympic rally is enough to sink his case.

Except that Joseph Frederick had not gone to school that day. (dum-dum-dum!)

That was the one fact of the case that I picked up from SCOTUSblog that I had not known this morning, when I emailed the Atlantico list about this case. This morning, I said:

The case is interesting to me because I have seen groups from the right and the left supporting this kid. The ACLU and gay rights groups in particular seem concerned about potential abridging of free speech, no surprise, but several religious groups recognize how a ruling in support of the school could be used against religious expressions at school. But he's so going to lose.

Ah, not so after all. In light of the fact that Joseph Frederick was absent from school, he can’t reasonably be considered to have been participating in the torch rally as a student subject to the school rules. Suddenly, it’s much more like the time that I ran into students at the amusement park who were not on the physics field trip, and in fact weren’t enrolled in a physics class. They were not my problem, from a legal point of view.

Well played, Mr. Frederick. Well played. Bong hits 4 Jesus, indeed.

ps - I personally think the defense is further hurt by the arguments that are being made about schools needing to enforce anti-drug policies. I just can’t see the justices nodding along with that argument. At least, I hope not.