439 F.3d 1114 (9th Cir. 2006), 03-35701, Frederick v. Morse

Docket Nº:03-35701.
Citation:439 F.3d 1114
Party Name:Joseph FREDERICK, Plaintiff-Appellant, v. Deborah MORSE; Juneau School Board, Defendants-Appellees.
Case Date:March 10, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1114

439 F.3d 1114 (9th Cir. 2006)

Joseph FREDERICK, Plaintiff-Appellant,

v.

Deborah MORSE; Juneau School Board, Defendants-Appellees.

No. 03-35701.

United States Court of Appeals, Ninth Circuit.

March 10, 2006

Argued and Submitted July 8, 2004.

Page 1115

Douglas K. Mertz, Law Office of Douglas K. Mertz, Juneau, Alaska, for the appellant.

David C. Crosby, P.C., Juneau, Alaska, for the appellees.

Sonja R. West (briefed), Davis, Wright, Tremaine, LLP, Los Angeles, California, for amici curiae Student Press Law Center, et al.

John M. Sedor (briefed), Bankston, Gronning, O'Hara, Sedor, Mills, Givens & Heaphey, P.C., Anchorage, Alaska, for amici curiae Association of Alaska School Boards, et al.

Judith K. Appeal (briefed), Drug Policy Alliance, Oakland, California, for amicus curiae Drug Alliance Policy.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-02-00008-J-JWS.

Before: Cynthia Holcomb Hall, Andrew J. Kleinfeld, and Kim McLane Wardlaw, Circuit Judges.

KLEINFELD, Circuit Judge:

This is a First Amendment student speech case.

Facts

One January day, Coca-Cola and other private sponsors supported a "Winter Olympics Torch Relay" in Juneau, Alaska. Students were released from school so that they could watch the Olympic torch pass by. Joseph Frederick, then an 18-year-old senior at Juneau-Douglas High School, never made it to school that morning because he got stuck in the snow in his driveway, but he made it to the sidewalk, across from the school, where the torch would pass by. He and some friends waited until the television cameras would catch it, then unfurled a banner reading "Bong Hits 4 Jesus." Deborah Morse, the school principal, crossed the street, grabbed and crumpled up the banner, and suspended Frederick for ten days. He appealed the suspension administratively, but it was sustained. He then filed a 42 U.S.C. § 1983 action in the Federal District Court seeking declaratory and other relief.

There was disorder at the torch passing, but the uncontradicted evidence is that it had nothing to do with Frederick and his fellow sign-holders. Coca-Cola handed out samples in plastic bottles, and students threw them at each other. Students threw snowballs. Some students got into fights. But Frederick and his group did not participate in these disorders, saving their

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energy for what they hoped would be their nationally televised sign display. And, the disruption that took place occurred before the display of the banner, so it could not have been caused by it.

In subsequent days, there was some pro-drug graffiti in the high school which the principal thought was "sparked" by the banner, but the principal did not rip down the sign at the rally because she anticipated or was concerned about such possible consequences. When Principal Morse crossed the street from the school and confronted Frederick about the banner, he asked "What about the Bill of Rights and freedom of speech?" She told him to take the banner down because she "felt that it violated the policy against displaying offensive material, including material that advertises or promotes use of illegal drugs," and she grabbed it from him and crumpled it up.

In their answers to interrogatories, Appellees never contend that the display of the banner disrupted or was expected to disrupt classroom work. Asked for all the ways in which the banner display disrupted the educational process, they said:

Display of the banner would be construed by many, including students, district personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use which is inconsistent with the district's basic educational mission to promote a healthy, drug-free life style. Failure to react to the display would appear to give the district's imprimatur to that message and would be inconsistent with the district's responsibility to teach students the boundaries of socially appropriate behavior.

There are some genuine disputes about the facts, but they are not material to the resolution of this case. Frederick says that the principal initially told him that he was suspended for five days, but when he quoted Thomas Jefferson to her, she doubled it. The principal says that she does not remember whether he quoted Jefferson to her, but that was not why the suspension was ten days. Frederick says that an assistant principal told him that the Bill of Rights does not exist in schools and does not apply until after graduation, but Principal Morse says that the assistant principal "made some remark to the effect that students do not have the same first amendment rights as adults." Frederick says that students were simply released from school so that they could watch the privately sponsored Olympic Torch being carried through a public street, and a student affidavit he submitted pointed out that the students did not have to obtain parental permission slips to be released, as is the routine for field trips and other supervised events off of the school premises. Principal Morse says that the release was "an approved social event or class trip," noting that the pep band played as the torch passed the school, the cheerleaders were out in uniform to greet the torchbearers, and teachers supervised.

Frederick says (without contradiction) that he had not gone to school that day prior to the banner display, that the banner display was off school property across Glacier Avenue from the campus, and that there were a lot of people, students and non-students, there to watch the torch pass. Other students filed affidavits saying that they were just released, not required to stay together or with their teachers, except for the gym class, and school administrators did not attempt to stop students who got bored and left. Frederick says that the "Bong Hits 4 Jesus" language was designed to be meaningless and funny, in order to get on television, but Principal Morse says that "bong hits" means puffs of marijuana and the words promote marijuana use.

Frederick was suspended for ten days, and appealed unsuccessfully through all

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levels of available administrative and school board review. He sued under 42 U.S.C. § 1983 for a declaratory judgment that his First Amendment rights had been violated, an injunction to remove the reference to the ten day suspension from his school records, damages, and other relief. The district court granted summary judgment for the Appellees, on the grounds that no constitutional rights were violated and the Appellees had qualified immunity even if they were. Frederick appeals.

Analysis

We review a grant of summary judgment de novo.1 the district court reasoned that Bethel School District No. 403 v. Fraser,2 as opposed to Tinker v. Des Moines Independent Community School District,3 governed Frederick's speech. We disagree.

One amicus, Drug Policy Alliance, argues that we should analyze this not as a student speech case, but simply as speech on a public sidewalk. That would make the case analogous to a student having an after-school job at a video store that rents out Cheech and Chong tapes, or a student driving a car on public streets with a "Bong Hits 4 Jesus" bumper sticker. Were this factually such a case, the law would be easy indeed, but the facts established by the submissions on summary judgment make this a student speech case. Even though Frederick never got to school that morning, that was only because he got stuck in his driveway because of the snow. School had started and the students were released to watch the Olympic torch pass. And even though supervision of most students was minimal or nonexistent, the school could have supervised them more if it chose to, as it did with the gym class and perhaps the pep band and cheerleaders. Frederick was a student, and school was in session.

There is no genuine issue of fact material to the decision. Frederick's display was not in a class. Frederick and the other students who displayed the sign did not participate in any of the disorderly conduct of the students who threw snowballs or plastic Coca-Cola miniature sample bottles. The school principal and school board do not claim that the display disrupted or was expected to disrupt any classroom work. They concede that their objection to the display, and the reason why the principal ripped down the banner, was not concern that it would cause disruption but that its message would be understood as advocating or promoting illegal drug use.4 frederick says that the

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words were just nonsense meant to attract television cameras because they were funny. We nevertheless proceed on the basis that the banner expressed a positive sentiment about marijuana use, however vague and nonsensical.

Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly "No."

Because this is a section 1983 case in which the Appellees asserted qualified immunity, we are required to proceed in accord with Saucier v. Katz 5 and determine first whether Frederick's constitutional rights were violated. This is an "as applied" challenge, not a "facial" challenge. Frederick argues that his rights were violated as the regulations were applied to him.6 under Tinker v. Des Moines Independent Community School District,7 they plainly were.

In Tinker, the Supreme Court held that wearing black arm bands in high school, "unaccompanied by any disorder or disturbance on the part of [the arm-band wearers]," and unaccompanied by "interference, actual or nascent, with the schools' work or of...

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