Thursday, March 22, 2007

More on Morse v. Frederick

Marci Hamilton has a good article up at on the Morse case (the "Bong Hits 4 Jesus" case). Hamilton argues and I agree that the determination of whether or not the banner was displayed a school event versus a public event will be key to the Justice's decision. Here is Hamilton's analysis:
One key issue in the case is whether the student was part of a school event, or part of a public event. If the former is the case, the school may regulate speech to keep it from disrupting the school's educational mission, under the rule the Supreme Court set down in Tinker. If the latter is the case, Principal Deborah Morse had no power to regulate the speech; he was literally beyond her jurisdiction. Thus, at oral argument, the Justices debated the issue rather seriously.

The student's lawyer made the strained argument that because his client was playing hooky, he could not have been at a school event. On the attorney's reasoning, the student was expressing himself in a public location, divorced from any school activity. It just so happened his classmates were at the same location, across the street from the school, on the date and time of the Olympic torch parade, in order to view the parade, in the middle of the school day. After the parade, the students, including his client, even returned to the school building to attend classes.

The very recitation of the student's attorney's theory refutes it. This was a school-sponsored event. The student was on the parade route, across from the school, during school hours. The only reason the students could gather to watch the parade was that the school had suspended classes for this very purpose.. Thus, the principal had legitimate latitude to regulate reasonably, in light of the educational institution's mission.
I, howver, don't come to the same conclusion about the event. The "parade" was actually the passing of the Olympic torch, an event far separated from the educational mission of the school. Because the parade route happened to pass before the school (but still on a public street), the school decided to do the rational thing and allow students to attend, but mere permission to attend and thereby excuse absences for a once in a lifetime event, does not make it a school sponsored event. At best the school sanctioned the attendence by the students.

School sponsored events are those organized and managed by the school, e.g. field trips, football games, etc. The school neither organzied or sponsored the Torch procession and had it not been for an accident of location, it is unlikely that the school would have allowed the students to even attend.

But let's take a few other facts as presented. First, the student was NOT on school grounds. He was on a public street and, while acting like a fool, was breaking no law. Second, at the time of the incident, by admission, he had not been in school prior to the procession and only later went to school, possibly because he had been seen by his principal and not home "sick." Thus is is difficult to draw the conclusion that, had this even been a school sponsored event, that this particular student was a part of that event. Third, the fact that his friends and classmates were nearby is a non-sequiter. I am sure that there were other people nearby, including shopkeepers, mothers, fathers and maybe even police. Such a condition doesn't mean that the student was a shopkeeper, a mother, a father or a police officer. Proximity does not determine activity.

I believe this event to be a public event and Principal Morse's actions were out of line. However, in the other question presented in teh case, I don't think she can be held personally liable and should qualify for a limited governmental immunity.

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