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Supreme Court Issues Decision in 'Bong Hits' Case

The United States Supreme Court has issued its opinion in the closely-watched First Amendment student speech case of Morse v. Frederick, often referred to as the "Bong Hits 4 Jesus" case.

Kirkland & Ellis' pro bono legal team, led by School of Law Dean Ken Starr, appealed to the Supreme Court on behalf of the Juneau high school principal and the Juneau school board.

Dean Starr asked the High Court to overturn a ruling by the Ninth Circuit Court of Appeals, which held that suspension of a student for displaying a 14-foot banner containing a pro-marijuana reference at a school sponsored and supervised event on and adjacent to school grounds while school was in session violated the First Amendment and rendered the principal personally liable for enforcing the school board's policy prohibiting such displays.

In a majority decision written by Chief Justice John G. Roberts, Jr., the Supreme Court ruled that students don't have the right to promote pro-drug messages at school-sponsored and faculty-supervised events and that Principal Morse could not be held personally liable for enforcing the board's policies.

Dean Starr, who is Of Counsel in Kirkland's Los Angeles office, along with Los Angeles Kirkland partner Rick Richmond, served as counsel for the petitioners. Former Kirkland partner Eric Hagen, a 1997 graduate of the School of Law, played an important role in the case.

"This case raised an issue of vital importance to every school principal and administrator in the country and we are very pleased with the Supreme Court's opinion," Dean Starr said.

The case has major implications for public school districts nationwide. Administrators now have a clear view on 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 almost all public schools across the nation.

"We are grateful that the Supreme Court decided to hear this case and consider this important issue," said Peggy Cowan, superintendent of the Juneau School District. "As a school administrator, teaching students in an environment that is conducive to learning is of the utmost importance. This case eliminates the confusion over whether the First Amendment permits regulation of student speech when such speech is advocating or making light of illegal substances. We appreciate the tremendous amount of time and effort that Kirkland devoted to this important case, both for ourselves and for public schools and administrators nationwide."

Added former principal Morse, who currently serves in the school district as an administrator, "As a longtime teacher and administrator, it is my professional responsibility to uphold school board policies and to strive to protect the health and welfare of students. Messages that promote illegal drug use are prohibited by our district's policies because they are potentially harmful to kids and disrupt the educational environment we seek to maintain in our schools. I am gratified that the Supreme Court has upheld the application of our common sense policies and confirmed that public school officials should not be inhibited in performing their duties by the specter of devastating damage awards for enforcing those policies."

The case arises from an event that occurred in Juneau on Jan. 24, 2002. During the 2002 Winter Olympics Torch Relay, the Juneau School District participated in the event by allowing students to view the relay under the supervision of teachers and school administrators 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 asked the students to drop the banner because it violated the school district's policy prohibiting the display of messages promoting illegal substances. When Frederick refused, Principal Morse confiscated the banner. She subsequently suspended Frederick for displaying the banner and several related offenses.

On successive administrative appeals by Frederick, the superintendent and the school board both agreed that Principal Morse had properly suspended Frederick. Represented by an ACLU attorney, Frederick then sued both the school board and Principal Morse personally 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 the school board and Principal Morse violated Fredrick's free speech rights. And even though no other court in the country had previously 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 her to personal liability for monetary damages.

The case drew 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, and former Drug Czars Barry McCaffrey and Bill Bennett.