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School Lawyers Weigh 'Bong Hits' Ruling

The U.S. Supreme Court’s decision last year in the “Bong Hits 4 Jesus” student speech was not a grand slam for educators, a lawyer said today at the Council of School Attorneys meeting in Orlando.

“I don’t think we even hit a double,” Michael E. Smith said in his analysis of Morse v. Frederick. In that case, the court held that the “Bong Hits” banner displayed at a school-related event by a high school student was not protected under the First Amendment. The justices also held that the principal who disciplined the student should have been given qualified immunity from the student’s lawsuit. (Read Education Week's preview here, and decision story here.)

Smith, a Fresno, Calif., lawyer who represents school districts, said there was much to like in the decision from a school attorney’s or administrator’s perspective. But the opinion by Chief Justice John G. Roberts Jr. also has language that takes student speech jurisprudence back to the “slippery slope” of a standard permitting regulation of “plainly offensive” speech, Smith said, which is very hard to define. The plainly offensive standard comes from Bethel School District v. Fraser .

Still, Morse allows schools to restrict speech promoting illegal drug use. And there is language in the concurring opinion of Justice Samuel B. Alito Jr. that potentially helps schools deal with speech that adds to dangers in schools. (“Experience shows that schools can be places of special danger,” Alito said.)

Smith said one of the most developing areas of student speech law involves expression viewed as impinging on the rights of other students, such as the cases involving anti-gay T-shirts.

This area “will present that fundamental clash between our duty to provide a safe school environment and the free speech rights of students,” Smith said.

I agree that this is one area where some of the most newsworthy cases will be unfolding.

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