LOS ANGELES, Aug. 28 LAWFUEL – Legal News Network — Attorneys from the Los Angeles office of Kirkland & Ellis LLP today petitioned the U.S. Supreme Court for a writ of certiorari in the closely-watched First Amendment student speech case of Juneau School Board v. Frederick, often referred to as the “Bong Hits 4 Jesus” case. Kirkland is representing the Juneau School Board and former Juneau- Douglas High School (JDHS) Principal Deborah Morse on a pro bono basis.
They are asking the High Court to overturn a ruling by the
Ninth Circuit Court of Appeals, which held that the high school principal
could be held liable for damages (including punitive damages) when she
disciplined a student for displaying a 20-foot banner with a pro-marijuana reference at a school- sponsored and faculty-supervised event that took place on and adjacent to campus during school hours.
Ken Starr, Rick Richmond, and Eric Hagen are the Kirkland lawyers
serving as counsel for the petitioners.
The case has major implications for public school districts nationwide. Administrators must now grapple with the question of whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances. School policies prohibiting such expression are commonplace in the vast majority of public schools across the nation. And now the enforcement of such policies, as written, can subject public school officials to harsh civil damages lawsuits.
“This case raises an issue of vital importance to every school
principal and administrator in the country,” Starr said.
The case arises from an event that occurred in Juneau, Alaska on Jan.
24, 2002. During the 2002 Winter Olympics Torch Relay, the Juneau School
District participated in the event by, among other things, allowing
students to view the torch as it passed through the street in front of the high school. As the torch and television cameras approached the school, JDHS high school student Joseph Frederick and several of his friends
displayed a large banner that read “BONG HITS 4 JESUS.” Principal Morse
approached the students and directed them to drop the banner because it
violated the school district’s policy prohibiting the display of messages
promoting illegal substances. When Frederick refused to comply, Principal
Morse confiscated the banner and suspended him.
On successive administrative appeals by Frederick, the superintendent
and the school board both agreed that Principal Morse had properly
suspended Frederick for promoting drug use during a school-sanctioned,
faculty-sponsored event. Represented by an ACLU attorney, Frederick then
sued in federal district court, seeking removal of the suspension from his records, a declaration that his rights had been violated, and monetary damages.
Chief Judge John W. Sedwick of the United States District Court for the District of Alaska dismissed Frederick’s lawsuit in 2003, concluding that
school officials had wide discretion to regulate speech that encouraged
drug use during a school-sponsored event.
But on March 10, 2006, the Ninth Circuit reversed. The Ninth Circuit
held that Principal Morse violated Fredrick’s free speech rights. And even though no other court in the county had ever held that a school’s policy against pro- drug messages was unconstitutional, the court of appeals concluded that Principal Morse’s enforcement of the Juneau School Board’s
policy violated Frederick’s “clearly established rights,” thereby
subjecting the principal to personal civil liability.
The Juneau School Board and Principal Morse believe that the Supreme
Court should grant review for two primary reasons. First, the Ninth
Circuit’s decision, as a practical matter, renders long-standing school
policies against pro-drug messages unenforceable. While lower courts have
struggled in applying the Supreme Court’s student speech precedent, courts uniformly (until the Ninth Circuit’s ruling in this case) had upheld bans
on messages promoting illegal substances. This case therefore presents the Court with a much-needed opportunity to eliminate confusion on the part of
school boards, administrators, teachers and students over whether the First Amendment permits regulation of student speech when such speech is
advocating or making light of illegal substances.
Second, the Ninth Circuit’s qualified immunity analysis unsparingly
allows no room for reasonable error on the part of public school officials. School officials have a difficult enough job maintaining order without the
daunting threat of civil liability solely because their legal
sophistication does not allow them to predict the future course of
appellate jurisprudence.
The case has drawn the attention and support of the National School
Boards Association and the American Association of School Administrators,
as well as groups involved in the fight against teenage substance abuse,
like D.A.R.E. America.
Members of the media who would like a copy of the complete petition
should contact Kirkland PR Manager Brian Pitts at bpitts@kirkland.com or
(312) 861-3115.
Kirkland & Ellis LLP is a 1,100-attorney law firm representing global
clients in complex litigation, dispute resolution and arbitration,
corporate, restructuring, tax and intellectual property and technology
matters. The Firm has offices in Los Angeles, Chicago, London, Munich, New
York, San Francisco and Washington, D.C.
