|
sanctioned event, because schools inherently have a
responsibility to teach children about the dangers of
drug use.
The dissent strongly disagreed with this decision,
stating that no reasonable person could construe the
banner as advocating drug use: “Admittedly, some high
school students (including those who use drugs) are
dumb. Most students, however, do not shed their brains
at the schoolhouse gate, and most students know dumb
advocacy when they see it. The notion that the message
on this banner would actually persuade either the
average student or even the dumbest one to change his or
her behavior is most implausible.” J. Stevens,
dissenting.
Because the Court decided that the administrator had the
right to intervene, it never had to analyze the second
question, which was whether the administrator had
qualified immunity from civil suit. In prior Supreme
Court decisions, school administrators have been given
qualified immunity—meaning, they were protected from
having to personally pay civil damages—in cases where
they ultimately were found to have violated a student’s
constitutional rights, but at the time of the incident,
could reasonably have believed they were not violating
such rights. In a concurring opinion, which holds no
legal weight, Justice Thomas advocates for the position
that students have absolutely no rights to free speech
in school related events. He even seems to advocate for
a return to the right to corporal punishment.
What does this mean in practice? First, despite Thomas’
desires, there will be no return to corporal punishment.
However, in a very narrow context, speech (whether
written or presumably oral) which an administrator can
“reasonably regard” as encouraging illegal drug use is
not protected by the First Amendment. School
administrators do have a right to intervene and stop
such speech. Best practice calls for school
administrators to have clear and consistent guidelines
for student conduct for school-sanctioned events and
activities.
However, this decision should not be considered an
invitation to shut down all forms of potentially
controversial speech. Student speech that can be
considered political is still protected by the First
Amendment. The line between protected and unprotected
speech is quite blurry however. What might the Court
have decided had Frederick’s sign read, “Vote to
Legalize Bong Hits?” Presumably, this decision holds
that such speech would have been protected.
End |
