Academic journal article Journal of Law and Education

A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise)

Academic journal article Journal of Law and Education

A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise)

Article excerpt

After the Supreme Court granted certiorari in Morse v. Frederick1 in December of 2006, it received an unusual mix of amicus briefs in support of ACLU-represented high school senior Joseph Frederick. Frederick, who had sued his principal after being suspended for waving a banner stating "Bong Hits 4 Jesus" at an Olympic torch rally that he attended with class- mates during school hours, had on his side not only the usual suspects, such as the Students Press Law Center2 and the National Coalition Against Censorship.3 Also supporting him were six conservatively-oriented reli- gious advocacy groups:4 the American Center for Law and Justice (ACU);5 the Christian Legal Society;6 me Alliance Defense Fund;7 the Liberty Legal Institute;8 Liberty Counsel,9 and me Rutherford Institute.10 Morse thus became one of the rare cares uniting me ACLU with me ACLJ.11

As these religious groups made clear in their briefs, they felt no particular affinity with Frederick's banner, which he himself described as containing mere "nonsense" words designed to attract television cameras. But they were concerned mat in the course of resolving the case, the Supreme Court would recognize, on broadly-worded grounds, the school's right to censor his speech, thus setting a precedent that implicitly limited other students' rights to express their religious views at school. The groups therefore urged the Supreme Court either to affirm the judgment below in Frederick's favor, dismiss the writ of certiorari as improvidently granted, or - if the Court were inclined to find in favor of me school - to reverse on very narrow grounds.12

These groups' concerns were not merely hypothetical. In recent years, mere have been an increasing number of cases involving clashes between students seeking to express their religiously-motivated views at school and schools that have restricted such messages out of concern that they will be hurtful to other students. (In fact, the above-mentioned religious groups have represented plaintiff students in several such cases.) Thus far, such conflicts have centered around two main types of religiouslymotivated student speech: speech opposing homosexuality and speech opposing abortion. In Harper v. Poway United School District,13 for instance a student sued his school in 2004 after it prohibited him from wearing a T-shirt that stated "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" on the front, and "HOMOSEXUALITY IS SHAMEFUL, Romans 1:27" on the back.14 Similarly, in the 2005 case of Nixon v. Northern Local School District,15 a student sued after being prohibited from wearing a T-shirt that stated "Homosexuality is a sin! Islam is a lie! Abortion is murder! Some issues are just black and white!"16 In 2007 alone, students brought at least four lawsuits involving similar clashes, one of which was just decided - at least at the preliminary injunction stage - by the Seventh Circuit.17

In Morse itself, the Supreme Court ultimately ruled for me school district on a narrowly-crafted rationale that did not resolve the developing split over how to approach such cases. The Court held only mat schools may restrict student speech "that can reasonably be regarded as encouraging illegal drag use"18 - a rationale that Liberty Legal Institute had, in fact, proposed in its amicus brief.19 And the crucial concurrence authored by Justice Alito - who, as further discussed below, appears quite sympathetic to religious students' free speech claims - explicitly stated that it was joining the opinion "on the understanding that (a) it goes no further to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue."20

In the meantime, the debate over how to resolve such cases has continued to percolate among the lower courts. The dissension is particularly pronounced with regard to religious speech opposing homosexuality. …

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