Bong Hits and Bright Lines
July 5, 2007
by Sean Clark
In the last few days, many pundits have been trying to speculate what Morse v. Frederick, the “BONG HiTS 4 JESUS” case, will have on free speech rights for students at not only public primary and secondary schools but also for students at public universities and colleges. Recently, former FIRE President David French wrote about the effect that this case might have for college student free speech rights:
And what does this all have to do with universities, you ask? In every single free speech case I’ve ever argued, the university’s first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder. In fact, I would be surprised if the “Bong Hits” case is not raised in at least two pending Alliance Defense Fund university speech cases. We shall see if the courts will continue to distinguish between secondary school and universities—especially in the face of serious institutional pressure to blur the differences.
David is absolutely correct when he notes that this case will only further blur what used to be a bright line distinction between the rights of adult college students and the rights of younger high school or elementary school children. To completely understand why this is the case, one has to look back to the first Supreme Court cases involving free speech in public education.
In 1969, the Supreme Court for the first time explicitly ruled in Tinker v. Des Moines School Dist., 393 US. 503 (1969) that public school students do not lose their constitutional rights when entering school property. The court famously stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But, in doing so, the court also noted that students’ rights were not coextensive with those of adults in the outside world by stating, “First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment.” (emphasis added).
It would seem that the majority in Tinker recognized that a school environment is unique and required a separate constitutional analysis. But, does this standard apply to all public education, including colleges and universities? Tinker was a case involving high school students and, in the decision, the Court did not indicate if such a right also applied with equal or more force when college or university students were concerned. The Court addressed this question three years later in Healy v. James, 408 U.S. 169 (1972). In Healy, the court explicitly ruled that college and university students enjoyed more free speech rights than their primary or secondary education counterparts. The court rejected the rider in Tinker that free speech rights must be “subject to application in light of the special characteristics of the school environment” when it stated:
The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom. (internal citation omitted)
If there was any doubt after Healy that college students enjoyed greater free speech protections then high school students, the Supreme Court once again addressed the subject the very next year in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973). In that case, the majority rejected calls from the dissenting Justices to establish a dual system of constitutional rights for college students. In doing so, the majority wrote:
[T]he First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech….
Now, fast forward three decades into the future and take a look at lower court decisions involving free speech rights on college campuses. Increasingly, these courts have been ignoring the language in Healy and Papish and ruling that college students’ rights are coextensive with high school students. For example, in Hosty v. Carter, 412 F.3d 731, 740 (7th Cir. 2005) the 7th Circuit Court of Appeals refused to acknowledge a bright line distinction between high school and college student rights. The same is true in the more recent case of Flint v. Dennison, 2007 U.S. App. LEXIS 12628 (9th Cir. 2007). In this case, the court rejected a challenge to campaign spending limits at the University of Montana (spending limits which would be patently unconstitutional in the community at large). In doing so, the majority relied upon the unique educational characteristics of a student election in finding the spending cap scheme constitutional.
Blurring the bright line between high school and college student rights is dangerous. Especially when decisions such as the most recent “BONG HiTS 4 JESUS” decision seem to leave high school student rights up in smoke.