Monday, March 13, 2006

Frederick v. Morse (9th Cir. - March 10, 2006)

This one takes me back to my youth. Ah, those heady days.

My story first, and then the case that reminded me of it. I went to public high school in Virginia the early 1980s -- the early Reagan years, for those too young (or old) to remember them. There were quite a few problems in my school that deserved considered attention, but during my junior year, the administration of the high school decided that what really needed to be solved was the critical problem of tee-shirts that dared to mention drugs or alcohol. Now, I had never actually seen such a tee-shirt, and perhaps neither had they. But they nonetheless decided that the possibility of such attire was a problem. So they passed a rule that said that they'd suspend anyone who wore any clothing that mentioned drugs or alcohol.

Even as a young high school student, my reaction to being informed of this new policy was similar to that of Chevy Chase in Fletch: "I'm no lawyer, but I believe that'd violate my civil rights." And since I was young and headstrong, my immediate reaction was to find a friend who had such attire -- in particular, a shirt with a huge Moosehead decal -- and borrow it. Which I promptly wore the day after the policy was announced. And, lest my (oh-so-significant) "rebellion" be unnoticed by the Powers that Be, I also made sure to wear this shirt the next week as well, when my picture was taken (and displayed) on the front page of the student newspaper for being a National Merit Semifinalist (or some other silly thing like that). Take that, The Man! Oh, yeah. You're getting it stuck to you now! How's it feel!

The thing is, the prinicipal of my high school was no fool. I'm quite sure that he knew what I was doing, but there's no way he was going to apply the policy against -- and suspend -- me. I was a young kid looking for a fight -- in this case, a legal fight -- and he (wisely) refused to be provoked. The policy continued to exist, and remain unchallenged, during my tenure at that august institution; and, for as far as I know, continues to exist to this day. (Anyone from Lake Braddock High School in Burke, Virginia care to comment?)

The lessons I learned from that "dispute" were fairly significant: the nature of power, deterrence, and (even unenforced) rules, as well as the value of carefully choosing when (and who) you fight.

These are the lessons Deborah Morse -- the principal of Juneau-Douglas High School in Juneau, Alaska -- really should have learned as well. Ms. Morse was no Mr. Alwood, my high school prinicpal. Far from it.

Deborah's decisions were simply silly, and made a federal case (literally) out of an utterly childish prank. To set the stage: the torch of the Winter Olympics is going through Juneau, and so Coca-Cola and other private sponsors arrange a "Winter Olympics Torch Relay" in which they give out free stuff and the like to those along the route. Lest our public high school students miss out on such munificent corporate largess, rather than provide those students with, oh, say, a continued education, the Powers That Be decided that watching the parade was more important, and so let students out of class for the day.

A parade?! Potential television cameras?! What high school student could resist? So Joseph Frederick, an 18-year old senior at the high school, decides that he'll have some fun with it. The parade is passing in front of the school, on a public street. So Joseph and some of his friends, all of whom are eager to get on television, and who apparently aren't really very creative -- decide that their best shot in this regard is to create a banner that says "Bong Hits 4 Jesus" and hold it up on the sidewalk as the parade passes. So that's what they do.

Oh, my. How hilarious. I'm rolling over with laughter. "Bong Hits 4 Jesus". HA-HA-HA. You kill me!! What utterly awesome social commentary. Way to stick it to The Man!!

In any rational universe, this would be the reaction of any observer of such a childish stunt. (Okay, I admit, it's a tiny, tiny bit funny, but you get my point.) But, of course, this ain't such a universe. The principal of the high school, Ms. Morse, decides that such a display of -- well, how should I put it; oh yeah: "free speech" -- is simply unacceptable. So she crosses the street, grabs the banner, and destroys it. Nice.

Oh, wait. She's not done. She then decides to suspend Joseph for five days for engaging in such revolutionary conduct, and tells him so. To which Joseph says something like: "Hey, I thought I had a constitutional right to free speech? You know: Thomas Jefferson, stuff like that?" A comment that prompts Ms. Morse to respond -- and here's the part that I absolutely love -- "Oh, did I say five days suspension? Make it ten."

Needless to say, Joseph sues. And totally wins. Sure, the district court judge -- Judge Sedwick -- inexplicably grants summary judgment to the defendants (Ms. Morse and the Juneau School Board). But the Ninth Circuit, in an opinion by Judge Kleinfeld -- it's a case from Alaska; who else would you expect to write the opinion?! --unanimously reverses. And finds not only that Joseph's speech was constitutionally protected, but also that the constitutional invalidity of defendant's conduct was so crystal clear that they're not entitled to immunity for monetary damages.

You couldn't have just left the banner alone, could you? No, you just had to rip it down, and then try to punish the student who had the audacity to challenge your Authoritah. So instead of watching a silly "Bong Hits 4 Jesus" banner for an extra 10 seconds, you end up having to (1) pay lawyers to defend a Section 1983 case, (2) lose, (3) pay the other side's costs and attorney's fees under Section 1988, and (4) potentially pay monetary damages as well.

Impressive. Great decision. Take a lesson from my high school principal: Sometimes it's better to let things go. Especially when they involve someone saying things with which you might disagree. We have a word for that. It's called Democracy. You teach it in your high school civics class. Just a reminder.