Washington Post Staff Writer
Tuesday, June 26, 2007; Page A06
The Supreme Court yesterday gave public schools new authority to regulate what students say, allowing principals to punish speech or demonstrations that may "reasonably be viewed" as promoting illegal drug use.
In its most significant ruling on student speech in almost two decades, the court said that the principal of a high school in Juneau, Alaska, did not violate senior Joseph Frederick's constitutional right to free speech when she suspended him for unfurling a banner reading "Bong Hits 4 Jesus" as students waited for the Olympic torch relay to pass their school in 2002. A bong is a water pipe commonly used to smoke marijuana.
"Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers . . . poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse," Chief Justice John G. Roberts Jr. wrote for a five-justice majority of the court. "The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers."
Frederick had insisted that the slogan meant nothing specific and that he was not advocating drug use.
The court recognized students' right to free speech at school in 1969, when it said that an Iowa public school could not ban the wearing of armbands in protest of the Vietnam War, as long as classes were not disrupted. Since then, the court has limited that right, permitting administrators to ban sexually explicit student speech in 1986, and to censor school-sponsored student publications in 1988.
But yesterday's ruling was the first time the court has said that schools can prohibit a student expression that was neither obscene nor published under the school's auspices.
The Juneau School Board, like many others nationwide, forbids "any assembly or public expression that . . . advocates the use of substances that are illegal to minors" or otherwise "urges the violation of law." Some federal school aid is conditioned on schools' conveying an anti-drug message.
Public school officials welcomed the ruling, saying that it recognizes that the schools' mission includes protecting student security and welfare, and that it will now be easier for school administrators to do that without worrying about being sued.
"It's terrific news," said Francisco M. Negron Jr., general counsel of the National School Boards Association. "Educators aren't going to have to second-guess the on-the-spot decisions they make to ensure students are safe."
Still, the court did not accept the broadest claims of Juneau school officials and some of their supporters, including the Bush administration, who had urged the justices to empower schools to restrict messages contrary to their "educational mission."
Two members of the majority, Justices Samuel A. Alito Jr. and Anthony M. Kennedy, made it clear that they gave Roberts the fourth and fifth votes he needed on the understanding that yesterday's ruling applied only to advocacy of illegal drug use.
In a concurring opinion joined by Kennedy, Alito wrote that yesterday's ruling "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue," including student opposition to the drug laws themselves.
Flag of Connecticut
On August 31, United States district court judge Mark Kravitz ruled against Burlington, Connecticut high school student Avery Doninger's request for a preliminary injunction to let her function as class secretary at Lewis S. Mills High School. Doninger had won the Class Secretary position at the high school. Earlier Doninger had posted derogatory comments on her blog about school officials and the school administration did not allow her to take the position as Class Secretary. Doninger alleges that the school's actions violated her First Amendment right to free speech.  

Also at issue is whether Doninger's use of the school's email system for an earlier mass email played a part in the school's decision. The school claims that the email led to serious disruption while Doninger claims that the email was only cited retroactively.

Kravitz ruled that there was not a substantial likelihood that Doninger would win her case against the school and thus declined to grant the injunction. Kravitz stated that although Doninger did not write the blog entry while on-campus, "Avery's blog entry may be considered on-campus speech for the purposes of the First Amendment." Kravits reasoned that the blogs' arguable on-campus nature together with Supreme Courts precedents that students have more limited free speech rights while on campus combined to give Doninger a weak case. 

The ruling has been criticized, with some observers arguing that by Kravitz's logic, almost any online speech by students can be severely restricted by school administrators. This ruling is a setback to Doninger, although she and her family stated that they intend to appeal the injunction and also continue with their lawsuit.

Doninger's case gained national attention earlier after Doninger set up a website to appeal for donations to help with legal fees associated with the cause. The exact limits of students free speech rights in public schools has been a matter of controversy since 1969 when in Tinker v. Des Moines Independent Community School District the United States Supreme Court ruled that students have some free speech rights in schools. In later cases, such as Bethel School District v. Fraser, and  Morse v. Frederick, colloquially known as the "Bong Hits 4 Jesus" case, the Supreme Court ruled that students in public schools while engaging in actions on campus or otherwise affiliated with the school do not enjoy the complete First Amendment protections that would normally apply to citizens in other circumstances.