MADELEINE BRAND, host:
From the studios of NPR West, this is DAY TO DAY. I'm Madeleine Brand. Alex Chadwick is on vacation.
Here is an academic question that, when applied to schools, isn't so academic: Just how much free speech do students have?
The Supreme Court takes up that issue today. Here is the background. Five years ago, a high school student in Anchorage, Alaska, raised a huge sign in front of his school that said, Bong Hits 4 Jesus. It got a lot of coverage when runners carrying the Olympic torch went by.
His principal suspended him for 10 days. The student said he wasn't trying to convey anything in particular - just get some attention. But this is now viewed as a significant free-speech case.
Joining us now is our legal analyst Dahlia Lithwick. She sat in on today's Supreme Court arguments. Hi, Dahlia.
Ms. DAHLIA LITHWICK (Legal Analyst, Slate): Hi, Madeleine.
BRAND: Well did you ever think you'd hear those words - Bong Hits 4 Jesus - in the Supreme Court chambers?
Ms. LITHWICK: Not just hear it, Madeleine - hear it and hear it and hear it. It seemed like the justices couldn't say it enough. They were enjoying the words almost as much as we reporters enjoyed hearing it in court.
It was quite a zippy oral argument. They were cutting each other off and having a grand old time today.
BRAND: Well, I'm wondering why they're even taking up this case, because haven't they already decided in a previous case in the '80s to impose limits on students' free speech?
Ms. LITHWICK: Well, first of all, there's a question about whether this is even a student speech case. I mean, he was 18 years old. He was not on school property. He cut school that day in order to stand across the street and hold up the sign.
So one of the things the court needs to figure out is if this is even really a school speech case. And we know from the court's precedent that in 1969, the court said, look, students can wear black armbands protesting Vietnam. That's not disruptive. So that's sort of one goal post here.
The other goal post is - as you said - these cases from the '80s that said, look, schools can limit offensive, disruptive school speech. So we have this first question about whether this is in fact school speech, and then the second question about whether it was somehow offensive or disruptive.
And so the court has quite a lot of stuff to work out in just one very, very tiny, seemingly inconsequential case.
BRAND: And today, you got a view of one of the lawyers representing the schools in this case - Kenneth Starr. A blast from the past.
Ms. LITHWICK: That's right. Former solicitor general, former independent counsel, defending the school - by the way, pro bono - who just made this point over and over again that, look, anti-drug messages are fundamental to schools' educational message. They need to be able to say this over and over again. And they don't have to host student speech that undermines it.
BRAND: Well, also, I understand there's some strange bedfellows in this case. You've got Kenneth Starr. And also you've got the ACLU lining up with some religious groups on the other side.
Ms. LITHWICK: That's right. One of the most interesting aspects of this case is that you have the ACLU lined up with evangelical Christian groups all supporting a students' rights to speech. The evangelical groups say, look, a lot of these cases involve students - Christian students - who are trying to speak in unpopular ways. And they're being sort of suppressed by political correctness.
So they actually line up with the Bong Hits 4 Jesus guy today. It does make for some strange bedfellows. And it made for - as I said - a very, very intense oral argument.
BRAND: And any indications which way they're leaning?
Ms. LITHWICK: Very hard to tell. Although, as I always say, if you're looking to Justice Kennedy as that fifth vote, he made it fairly clear that he found the sign, quote, "sophomoric."
BRAND: Dahlia Lithwick of Slate.com. Thank you.
Ms. LITHWICK: My pleasure, Madeleine.
BRAND: We're joined now by a principal who has had first-hand experience dealing with freedom of speech issues at his school. Robert Littlefield is principal of Portsmouth High School in Portsmouth, Rhode Island. Welcome to the show.
Mr. ROBERT LITTLEFIELD (Principal, Portsmouth High School, Rhode Island): Hi. Thank you, Madeleine.
BRAND: Well, you were sued last fall over a yearbook photo. And tell us about that.
Mr. LITTLEFIELD: Well, we had a student submit his senior portrait as students traditionally do for the publication in this year's yearbook. And our editorial staff thought that it was an inappropriate picture because the student was posing carrying two medieval swords and dressed up in medieval garb.
And the editorial staff thought that the swords were inconsistent with our no-weapons policy at the school, so they rejected the photo. The student and the parents appealed to me. I upheld the editorial board's decision.
And then the next thing I knew, I was being sued in federal district court by the American Civil Liberties Union. And then it just took off from there.
BRAND: Well, did you really think that his photo would incite others to violence? Was that the problem?
Mr. LITTLEFIELD: No. I didn't think that that was the problem. I felt that the senior portrait section of our year book is a formal section. It's a part of our official publication.
And it wasn't so much this student and his weapons but what may be next - what may be the result of kids' unlimited imagination. And so we're just trying to preserve the integrity of our official publications.
BRAND: I guess the phrase unlimited imagination - a lot of people would applaud that. They want the kids to express themselves. And if this kid was doing that by dressing up in medieval garb, then that's great.
Mr. LITTLEFIELD: Sure. I understand that. And my editorial staff and I, we really had no problem with the student portraying his interest in medieval studies. We had no problem with that.
It was the fact that he was carrying weapons that we felt crossed the line. And we offered to have the student take another photo. We offered to retouch the photo just minus the weapon because that's where we drew the line.
BRAND: Although higher powers disagreed with you, correct? You were overruled on this?
Mr. LITTLEFIELD: Yes. The federal district court asked that we return to the Rhode Island Department of Education for a hearing at the commissioner's level. After the hearing, the commissioner felt that while our school was well within our rights to limit the speech due to the fact that this was an official publication and not necessarily a public forum, they felt that I - in making my decision - was arbitrary and capricious about this particular photo.
And so they overturned our decision. And then after, that we chose not to continue - not to take the case back to federal court.
BRAND: Well, I'm wondering how much free speech do you think children should have on campuses?
Mr. LITTLEFIELD: Well, that's the fine line that we walk every day. And I think I speak for all my brother and sister principals across America that we make decisions like this every day based on trying to strike that balance between recognizing a kid's individual right to express themselves while at the same time we're trying to maintain a safe and orderly environment that's conducive to our mission to educate our kids.
And high school today is a much more serious business than it was even 10 years ago, that we're all being held accountable. There are standards being set in every state in response to the No Child Left Behind Act.
And the bar has been raised. And the stakes are higher. And we're trying our best to maintain an atmosphere that is conducive to reaching those goals. And certainly, when messages about drug use or violence or hate or alcohol are being bandied about in school, that really is contradictory to our mission.
BRAND: Robert Littlefield is principal of Portsmouth High School in Portsmouth, Rhode Island. And Mr. Littlefield, thank you very much for joining us.
Mr. LITTLEFIELD: OK. It was great to talk to you.
BRAND: As Dahlia mentioned, today's Bong Hits 4 Jesus case is just the latest the Supreme Court has taken on student freedom of speech. There were three others: one during Vietnam, two others in the 1980s.
NPR's Mike Pesca caught up with the three students involved in those cases - now adults.
MIKE PESCA: Justice Abe Fortas penned the most famous line ever about student free speech. He wrote of students and teachers not shedding their constitutional rights at the school house gate. The limits of students' speech are as follows:
Mr. JOHN TINKER: Was it significantly disruptive is basically the Tinker Test.
PESCA: And speaking there is John Tinker. The Tinker Test dates back to the landmark 1969 ruling of a case that started four years earlier when John, his sister, Mary Beth, and a friend, Christopher Eckhardt, wore black armbands to protest the Vietnam War.
Jurisprudence geeks take note, they weren't actually armbands.
Mr. TINKER: We went up to the local department store and bought a few yards of black cloth and we cut them up, ironed nice little seams, you know, folds for them and made nice neat little pieces of cloth that we pinned on our arms.
PESCA: Wearing the small, quiet symbol of dissent got John Tinker suspended from his Des Moines Iowa High School in 1965. When the case was finally argued before the court in 1969, Tinker actually missed his flight from Iowa to D.C. But friend and fellow litigant Christopher Eckhardt was there.
Did you see it actually argued in the court?
Mr. CHRISTOPHER ECKHARDT (Former Litigant): I did.
PESCA: Oh, so what was that like?
Mr. ECKHARDT: Thrilling. We were like in the front row and when Thurgood Marshall asked the judge, Herick(ph) who was their attorney, you mean to tell me the five students are going to upset the educational atmosphere of 18,000 students? And of course that was their whole case and Herick had to say yes, you know. And our attorney, Dan, walked out on cloud nine.
PESCA: The 7-2 verdict gave the students their victory. For more than 15 years, the Tinker decision stood virtually unrestrained; then another student speech case was heard by the court. To help a friend running for class office, Matt Frasier(ph) delivered a nominating speech filled with sexual innuendo.
Mr. MATT FRASIER (Former Student): I know a man who is firm. He's firmed in his shirt. He's firmed in his pants and his character is firm. But most of all, his belief in us, the students of Bethel(ph) is firm. Jess Coleman(ph) is a man who takes his point and pounds it in. He'll take any issue and nail it to the wall.
PESCA: And just as Frasier remembers the speech, he remembers the reaction. Hoots during the assembly, congratulations in the hall afterwards, and then an announcement over the PA: Matthew Frasier to the office immediately.
Mr. FRASIER: The whole hallway is filled with kids. They went ooh, busted.
PESCA: Three years later, the Supreme Court agreed. In the 7-2 decision, the court judged the speech sufficiently disruptive. Today Frasier is himself a high school teacher who's sympathetic to the administrators' need to keep order, but doesn't think he'd necessarily punish a kid when he says something mildly offensive. I asked Frasier what he would have done if one of his students had displayed a sign that said Bong Hits 4 Jesus?
Mr. FRASIER: I think I would use persuasion, as I feel the school should have done in my case. And I would be telling the student, come on, let's take it down and let's talk about this later.
PESCA: Frasier would probably be convincing. He's the coach of Stanford University's debate team. Upon reflection, Frasier says the lack of justice he got from the Supreme Court affected him. He decided not to pursue a career in law. The opposite happened to the participants in the Tinker case. Not John Tinker. He's the developer of a Web site that organizes news stories and he speaks to student groups on an almost daily basis.
But things didn't turn out so well for the other boy who wore an armband in 1965. A few years ago, Christopher Eckhardt was charged with a crime over a real estate deal. Today, Eckhardt says excessive faith in the justice system persuaded him not to hire a lawyer.
Mr. ECKHARDT: Did I think I was going to get probation? Absolutely, you know, even after I was found guilty. Just because, you know, I felt like I could go in there and represent myself and just - I just thought, hey, you know, we just go up here and tell our side of the story.
PESCA: Eckhardt served four years in prison. He thinks the judge was out to get a former protester. Whatever the truth, Eckhardt has turned his experiences into a long, sometimes rambling, sometimes fascinating blog. His wish is to find a publisher because, he says, he still believes in the power of free expression.
Mike Pesca, NPR News, New York.
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