High Court Holds A '60s Revival

Warren era comes to life in cases on student signs and standing to sue

For the ABAJournal.com, David G. Savage writes:

A pair of unusual first amendment cases gives the U.S. Supreme Court under Chief Justice John G. Roberts Jr. a chance to reconsider doctrines that were set in the late 1960s, under Chief Justice Earl Warren.

The court this term will take up a test of the free speech rights of high school students and will decide whether taxpayers have a right to challenge President Bush’s faith-based initiative as a violation of the establishment clause.

The cases recall some that were argued during the Warren era, which famously expanded individual rights. When students showed their disapproval of the Vietnam War by wearing black armbands to high school, the court overturned their suspensions and said students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

And when some taxpayers sued because federal education aid was used to subsidize religious schools, the Warren court made an exception to the rule that taxpayers do not have standing to challenge government policies. In Flast v. Cohen, 392 U.S. 83 (1968), the court said taxpayers may sue to enforce the First Amendment ban on spending tax money to promote religion.

But in more recent times, those doctrines have been narrowed. And in this term, the court will decide whether to narrow them even further.

Perhaps the more colorful case before the court is Morse v. Frederick, No. 06-278. Students outside a Juneau, Alaska, high school unfurled a 14-foot banner along the street after they were dismissed from class to watch the torch for the 2002 Winter Olympics pass by.

As the torch and local TV cameras approached, senior Joseph Frederick and a few friends hoisted the banner, which read, “Bong Hits 4 Jesus.” Principal Deborah Morse spotted it, grabbed it from the students and crumpled it.

When Frederick invoked the group’s right to freedom of speech, the principal said the school’s policy prohibited the display of “offensive” messages, including ones that “promote the use of illegal drugs.” She suspended the senior for 10 days.

Frederick appealed the suspension to the superintendent and the school board, but lost. He then sued in federal court, alleging his free speech rights were violated, but he lost there too.

Last March, however, he won before the San Francisco-based 9th U.S. Circuit Court of Appeals, which held that school officials may not “punish and censor” expressions by students simply because their message conflicts with the school’s policy.

“What schools are entitled to do ... is suppress speech that disrupts the good order necessary to conduct their educational function,” wrote Judge Andrew Kleinfeld, one of the most conservative judges on the 9th Circuit.

He reviewed the trilogy of student free speech cases decided by the Supreme Court. Tinker in 1969 said the free speech rights of students would prevail except when they would cause a “substantial disruption of or material interference with school activities.”

In 1986, however, the court upheld the suspension of a high school student who gave a nominating speech in the auditorium that contained a thinly veiled sexual allusion. School authorities need not tolerate “plainly offensive” speech from students during a “school-sponsored educational program,” the court said. Bethel School District v. Frazer, 478 U.S. 675. Two years later, the court said school officials were free to censor a student newspaper that was produced in a journalism class and therefore was “part of the school curriculum.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260.


NOT ‘PLAINLY OFFENSIVE’

Kleinfeld said the student’s banner was protected free speech. “The phrase ‘Bong Hits 4 Jesus’ may be funny, stupid or insulting, depending on one’s point of view, but it is not ‘plainly offensive’ in the way sexual innuendo is,” he wrote. And since it was displayed outside the school, along the street, it certainly cannot be described as part of the curriculum, he added.

The 9th Circuit not only sided with Frederick on the free speech claim but also rejected the principal’s claim of qualified immunity. “This is no case of ignorance,” the 9th Circuit said. “The law was clear.”

Former U.S. Solicitor General Kenneth Starr, now dean of the Pepperdine University law school, petitioned on behalf of the school board and principal, arguing the law was anything but clear. He noted that school boards across the nation have adopted policies that forbid students from wearing clothes at school events that promote the use of alcohol, tobacco or illegal drugs.

By contrast, the 9th Circuit’s decision says school authorities “must tolerate pro-drug messages in the face of threats of draconian civil damages lawsuits. This is wildly wrong,” Starr said.

The two sides differ on how to regard the torch parade that sparked the incident. Juneau attorney Douglas Mertz, a lawyer for Frederick, calls it an “off campus” event, since the student was standing on the street, not on the school grounds. But Starr referred to the same incident as a “school-sponsored” event, akin to a football game, since school authorities were in control.

In the second case, Hein v. Freedom from Religion Foundation, No. 06-157, the court will focus on standing of a different sort. Arguments are slated for Feb. 28.

In his first term, Roberts made clear he would strictly enforce the limits on standing. Last year, taxpayers in Ohio challenged the state’s subsidies for out-of-state manufacturers to build new plants in the Buckeye State. They won a ruling in the U.S. Court of Appeals saying this subsidy discriminated against interstate commerce and violated the commerce clause.

But Roberts spoke for the court and dismissed the suit. “We have an obligation to assure ourselves of litigants’ standing under Article III,” he wrote in Cuno v. DaimlerChrysler Corp., 126 S. Ct. 2286.

Otherwise, it would “transform federal courts into forums for taxpayers’ generalized grievances.” Ohio taxpayers had not suffered a specific injury that gave them grounds to sue, he said.


FAITH-BASED FUNDING

While rejecting standing for the Ohio taxpayers in DaimlerChrysler, Roberts noted that the Flast decision had created a “narrow exception” for taxpayers who complain about spending to promote religion.

Shortly after taking office, President Bush created a Center for Faith-Based and Community Initiatives in the White House that encouraged religious groups to participate in government-funded social-service programs. Bush’s order stressed tax money would not be used for “inherently religious activities,” such as worship or religious teaching.

Nonetheless, the Madison, Wis.-based Freedom from Religion Foundation sued, contending the White House was using tax money for conferences and meetings that promoted “the funding of faith-based organizations.”

The administration’s lawyers moved to block the suit on standing grounds. They said federal officials were merely assuring that church groups and other religious charities had the same opportunity as others to participate in public programs. Certainly, the president and other officials can speak favorably about religion without violating the establishment clause or giving taxpayers grounds for suing, they said.

A federal judge in Wisconsin dismissed the suit, but the Chicago-based 7th U.S. Circuit Court of Appeals revived it in a 2-1 decision. “Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by a congressional appropriation, even if the program was created entirely within the executive branch,” said Judge Richard Posner.

After the full appeals court upheld that decision in a 7-4 vote, U.S. Solicitor General Paul Clement urged the justices to rule that taxpayers do not have standing to challenge “the executive’s use of general appropriations.”

“This is a relatively narrow question, but it’s quite important,” says Barry W. Lynn, executive director of Americans United for Separation of Church and State. “We believe that no tax money should be spent to advance religion. It’s essential that the justices uphold the principle that taxpayers can go to court when their money is being used to advance religion.”

But Kevin J. Hasson, president of the Becket Fund for Religious Liberty in Washington, D.C., says he hopes the court will use the case to end the “jurisprudence of hurt feelings.”

“Paying taxes should not give every malcontent with a gripe against religion a license to sue the government,” Hasson says. “This case could finally close a loophole in the law through which radical secularists have been driving entire convoys of trucks.”