Tag Archives: Morse v. Frederick

You can’t say that on television or in school!

Yesterday the Court of Appeals for the Third Circuit sat en banc hearing arguments in the “I ♥ Boobies” bracelet case.  In listening to oral argument, I was struck when one of the judges stated at 16:33, “I understand your policy position, but I am still frankly trying to understand your legal position.  And I Will concede that while my colleagues may well be able to find a coherence in the Supreme Court’s school speech cases, some of it has eluded me which is why I am trying to [unintelligible] with Tinker, with Frasier, and with Morse.”


The oral argument, even if you only listen to the first 20 minutes[1], the argument for the school district and the questions from the bench reveal the difficulties created for schools since Frasier and Morse.  Both of these cases provided a great deal of discretion for schools to police language.  Frasier suggests that the ‘double entendre’ is grounds for sanction.  Morse extends that discretion to statements that are ambiguously related to drugs even if there is no clear meaning.  As reported by the Morning Call, the school’s attorney noted that allowing this speech “”…threatens to open the floodgates to cause-based marketing fueled by sexual innuendo,” school district lawyer John E. Freund said, noting hat other diseases, including testicular cancer, have spawned awareness campaigns with slogans designed to get attention through titillation.”[2]



The claim of the school in the case before the Third Circuit is that two women wearing plastic bracelets that read “I ♥ Boobies” on the same day that others in the school, including teachers,  were wearing other paraphernalia supporting breast cancer awareness.  Essentially, the school district is arguing that 1) the statement on the bracelet has two meanings and one is to titillate and 2) that the mere presence of the word “boobies” on a bracelet causes a material disruption when we are dealing with middle schoolers.


How far does this reasoning extend?  Is anything that might cause an outbreak of giggles or juvenile jokes now susceptible to censorship?  I am not a fan of the slippery slope argument, but the Court’s cases since Tinker seems to head in that direction—reducing school discourse and free speech to such an extent that schools are allowed to quash any speech that might be taken in a sexual way or as associated with drugs? Can the schools eliminate homophones (or close relatives) that tend to get grade and middle schoolers flustered?  What will be next?  “Call of Duty” phone skins or t-shirts will be banned because some younger students might take the opportunity to take the conversation in a different direction?  On Career Day, parents must use different words to describe their jobs as analysts?

Perhaps the Third Circuit will find a way to stop the avalanche down this slope that the school district wishes to ride.  And if presented to your class as a hypothetical, this case seems like a good one to use to draw distinctions between Tinker and its progeny.


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Religion, privacy, and locator chips: Extralegal factors and decision-making

National Public Radio reported on a new federal lawsuit out of Texas on Monday, December 17, 2012.[1]  On the 17th, a federal judge will hear a case dealing with an experimental program that places locator chips into student IDs.  The motivation for the school is monetary.  Attendance equals dollars and the chips provide more accurate counts of how many students are on school grounds.  For money strapped school districts, this is a way to squeeze a few more dollars out of the federal government.  The school district in Texas estimates gaining 1.7 million dollars out of a program that cost between 260,000 to 500,000, according to the two NPR stories.

However, some students and parents are challenging the use of the locator chip.  One argument is that it violates the freedom of religion.  One evangelical student believes that the chip is analogous to the ‘mark of the beast’ discussed in Revelations.  The chip program is to this family of evangelicals the same as the flag salute or school prayer is to Jehovah’s Witnesses or a school prayer was to Engel (see Minersville v. Gobitas (1940); West Virginia State Board of Education v. Barnette (1943); Engel v. Vitale (1962)).  Other parents and students challenge the chip program as a violation of the right to privacy.

A classroom discussion of this case last week would probably be a good case to discuss the intent of the first amendment and the balancing approach that the courts tend to use when dealing with schools and their role as parens patriae.  The school claims that the chips will be used for attendance and not monitoring students whereabouts on a constant basis.  However, the motivation for the program is monetary and that definitely ranks below the preferred freedoms.

However, while the motivation may have been monetary, in the wake of the tragedy in Newtown, CT, the school district may have a more compelling rationale for keeping the chips—the ability to locate each and every student during a crisis and after a crisis.  Even if the attorneys for the school district did not prepare to argue the safety interest, the facts of the case surely will bring these events to mind and solidify the school district’s interest when balanced against the other fundamental rights.  The safety interest, even more so than a policy to protect students from drugs and the drug culture (Morse v. Frederick (2007), again would be hard to ignore.  This case may, in the end, be an excellent example of extra-judicial factors beyond personal preferences influencing judicial decision-making.


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To Cheer or Not to Cheer

In Texas, a group of middle school cheerleaders like to create hand-made signs bearing Christian messages.  The football players would then “bolt” through the banners as they ran onto the field.[1]  The cheerleaders decided that they would use messages “give glory to God” rather than the typical alliterative “Bludgeon the Bears” or “Take out the Tigers”.  The superintendent of the schools, with the backing of the Texas Association of School Boards, banned the banners.  The superintendent informed parents that religious displays at school events are not permitted.

Why not?  In 2000, the Supreme Court ruled that student led prayer at a school event violates of the establishment clause.[2]  Writing for the majority, Justice Stevens noted that, “The Santa Fe school officials simply do not “evince either ‘by policy or by practice’ any intent to open the [pregame ceremony] to ‘indiscriminate use,’ …by the student body generally.  Rather the school allows only one student, the same student for the entire season, to give the invocation.”  In this case, the student body voted whether to keep the invocation and then voted on who would deliver it for the season.  Stevens, agreeing with the District Court, concludes that this method ensures minority views will not be voiced.  Additionally in this case, “…the policy, by its terms, invites and encourages religious messages.  The policy itself states that the purpose of the message is to ‘solemnize the event’.  And so the Santa Fe school could no longer elect a member of the student body to give an invocation over the loud speaker at a football game.

So the facts in the two cases are not quite on all fours.  Here no loud speaker is used.  No vote is taken.  And, the banners, according to one of the reports there are 10 banners—one for each home game.  The players run through a banner at the beginning of the game,[3] so the same message is not repeated.  No vote is taken to determine who provides the message, although the 17 varsity cheerleaders have total control of the messages.

The differences between this case and Santa Fe v. Doe are enough to ask which line of precedent would (or should) the Court follow, if it were to hear this case.  Should Santa Fe and Morse v. Frederick control and no religious messages are allowed at school-sponsored events and school officials can disallow such messages if they go against the school’s (or district’s) policy?  Or is this more akin to Tinker v. Des Moines?  A small group of students write a message and then put it before the onrush of the football players.  We don’t even know if the banner is visible to the spectators. Indeed, after the first players run through, the message is no longer intact.  No material disruption occurred.  Is this a free speech or an establishment case?  In my view, it is closer to Tinker given that no school official supported the ‘policy’ and the banners are a message from the cheerleading squad to the players.  However, if I presented this hypothetical to my students, I am sure I would have several that would disagree and could do so with significant support and vigor.



[2] Santa Fe Independent School District v. Doe 530 US 290 (2000)

[3] Although the same article from the Houston Chronicle has a picture of the cheerleaders hanging smaller banners on a fence.

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