Lead Opinion
delivered the opinion of the
At a school-sanctioned and school-supervised event, a high school principal saw some of her students unfurl a large banner conveying a message she reasonably regarded as promoting illegal
Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist.,
I
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of Juneau-Douglas High School (JDHS) while school was in session. Petitioner Deborah Morse, the school principal, decided to
Respondent Joseph Frederick, a JDHS senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were JDHS students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” App. to Pet. for Cert. 70a. The large banner was easily readable by the students on the other side of the street.
Principal Morse immediately crossed the street and demanded that the banner be taken down. Everyone but Frederick complied. Morse confiscated the banner and told Frederick to report to her office, where she suspended him for 10 days. Morse later explained that she told Frederick to take the banner down because she
Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it, limiting it to time served (eight days). In a memorandum setting forth his reasons, the superintendent determined that Frederick had displayed his banner “in the midst of his fellow students, during school hours, at a school-sanctioned activity.” Id., at 63a. He further explained that Frederick “was not disciplined because the principal of the school ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs.” Id., at 61a.
The superintendent continued:
“The common-sense understanding of the phrase ‘bong hits’ is that it is a reference to a means of smoking marijuana. Given [Frederick’s] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs. [Frederick’s] speech was not political. He was not advocating the legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the Torch Relay. [Frederick’s] speech was potentially disruptive to the event and clearly disruptive of and inconsistent with the school’s educational mission to educate students about the dangers of illegal drugs and to discourage their use.” Id., at 61a-62a.
Relying on our decision in Fraser, supra, the superintendent concluded that the principal’s actions were permissible because Frederick’s banner was “speech or action that intrudes upon the work of the schools.” App. to Pet. for Cert. 62a (internal quotation marks omitted). The Juneau School District Board of Education upheld the suspension.
Frederick then filed suit under 42 U. S. C. § 1983, alleging that the school board and Morse had violated his First Amendment rights. He sought declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney’s fees. The District Court granted summary judgment for the school board and Morse, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s First Amendment rights. The court found that Morse reasonably interpreted the banner as promoting illegal drug use — a message that “directly contravened the Board’s policies relating to drug abuse prevention.” App. to Pet. for Cert. 36a-38a. Under the circumstances, the court held that “Morse had the authority, if not the obligation, to stop such messages at a school-sanctioned activity.” Id., at 37a.
The Ninth Circuit reversed. Deciding that Frederick acted during a “school-authorized activity],” and “proceeding] on the basis that the banner expressed a positive sentiment about marijuana use,” the court nonetheless found a violation of Frederick’s First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a “risk of substantial disruption.”
We granted certiorari on two questions: whether Frederick had a First Amendment right to wield his banner, and, if so, whether that right was so clearly established that the principal may be held liable for damages.
II
At the outset, we reject Frederick’s argument that this is not a school speech case — as has every other authority to address the question. See App. 22-23 (Principal Morse); App. to Pet. for Cert. 63a (superintendent); id., at 69a (school board); id., at 34a-35a (District Court);
Ill
The message on Frederick’s banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all. Frederick himself claimed “that the words were just nonsense meant to attract television cameras.”
As Morse later explained in a declaration, when she saw the sign, she thought that “the reference to a ‘bong hit’ would be
We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits ... ” — a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use — “bong hits [are a good thing],” or “[we take] bong hits” — and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. See Guiles v. Marineau,
The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is “meaningless and funny.”
The dissent mentions Frederick’s “credible and uncontradicted explanation for the message — he just wanted to get on television.” Post, at 444. But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says. The way Frederick was going to fulfill his ambition of appearing on television was by unfurling a pro-drug banner at a school event, in the presence of teachers and fellow students.
Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 448, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 446-448, this is plainly not a case about political debate over the criminalization of drug use or possession.
IV
The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may.
In Tinker, this Court made clear that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.”
Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” Id., at 513. The essential facts of Tinker are quite stark, implicating concerns at the heart of the First Amendment. The students sought to engage in political speech, using the armbands to express their “disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them.” Id., at 514. Political speech, of course, is “at the core of what the First Amendment is designed to protect.” Virginia v. Black,
This Court’s next student speech case was Fraser,
The mode of analysis employed in Fraser is not- entirely clear. The Court was plainly attuned to the content of Fraser’s speech, citing the “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.” Id., at 680. But the Court also reasoned that school boards have the authority to determine “what manner of speech in the classroom or in school assembly is inappropriate.” Id., at 683. Cf. id., at 689 (Brennan, J., concurring in judgment) (“In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate [Fraser’s] speech because they disagreed with the views he sought to express”).
We need not resolve this debate to decide this case. For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights , of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. See Cohen v. California,
Our most recent student speech case, Kuhlmeier, concerned “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”
Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur. The case is nevertheless instructive because it confirms both principles cited above. Kuhlmeier acknowledged that schools may regulate some speech “even though the government could not censor similar speech outside the school.” Id., at 266. And, like Fraser, it confirms that the rule of Tinker is not the only basis for restricting student speech.
Drawing on the principles applied in our student speech cases, we have held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights ... at the schoolhouse gate,’ ... the nature of those rights is what is appropriate for children in school.” Vernonia School Dist. 47J v. Acton,
Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important— indeed, perhaps compelling” interest. Id., at 661. Drug abuse can cause severe and permanent damage to the health and well-being of young people:
“School years are the time when the physical, psychological, and addictive effects of drugs are most severe. Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound; children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor. And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted.” Id., at 661-662 (citations and internal quotation marks omitted).
Just five years ago, we wrote: “The drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.” Earls, supra, at 834, and n. 5.
The problem remains serious today. See generally 1 National Institute on Drug Abuse, National Institutes of Health, Monitoring the Future: National Survey Results on Drug Use, 1975-2005, Secondary School Students (2006). About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Id., at 99. Nearly one in four 12th graders has used an illicit drug in the past month. Id., at 101. Some 25% of high schoolers say that they have been offered, sold, or given an illegal drug on school property within the past year. Dept, of Health and Human Services, Centers for Disease Control and Prevention, Youth Risk Behavior Surveillance — United States, 2005, 55 Morbidity and Mortality Weekly Report, Surveillance Summaries, No. SS-5, p. 19 (June 9, 2006).
Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs, Brief for United States as Amicus Curiae 1, and required that schools receiving federal funds under the Safe and Drug-Free Schools and Communities Act of 1994 certify that their drug-prevention programs “convey a clear and consistent message that ... the illegal use of drugs [is] wrong and harmful,” 20 U. S. C. § 7114(d)(6) (2000 ed., Supp. IV).
Thousands of school boards throughout the country — including JDHS — have adopted policies aimed at effectuating this message. See Pet. for Cert. 17-21. Those school boards know that peer pressure is perhaps “the single most important factor leading schoolchildren to take drugs,” and that students are more likely to use drugs when the norms in school appear to tolerate such behavior. Earls, supra, at 840 (Breyer, J., concurring). Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse.
Petitioners urge us to adopt the broader rule that Frederick’s speech is proseribable because it is plainly “offensive” as that term is used in Fraser. See Reply Brief for Petitioners 14-15. We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of “offensive.” After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.
Although accusing this decision of doing “serious violence to the First Amendment” by authorizing “viewpoint discrimination,” post, at 435, 437, the dissent concludes that “it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting,” post, at 439. Nor do we understand the dissent to take the position that schools are required to tolerate student advocacy of illegal drug use at school events, even if that advocacy falls short of inviting “imminent” lawless action. See ibid. (“[I]t is possible that our rigid imminence requirement ought to be relaxed at schools”). And even the dissent recognizes that the issues here are close enough that the principal should not be held liable in damages, but should instead enjoy qualified immunity for her actions. See post, at 434. Stripped of rhetorical flourishes, then, the debate between the dissent and this opinion is less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use. We have explained our view that it does. The dissent’s contrary view on that relatively narrow question hardly justifies sounding the First Amendment bugle.
* * *
School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse, had to decide to act — or not act— on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use — in violation of established school policy — and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.
The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
Justice Breyer would rest decision on qualified immunity without reaching the underlying First Amendment question. The problem with this approach is the rather significant one that it is inadequate to decide the case before us. Qualified immunity shields public officials from money damages only. See Wood v. Strickland,
The dissent’s effort to find inconsistency between our approach here and the opinion in Federal Election Comm’n v. Wisconsin Right to Life, Inc., post, p. 449, see post, at 444-445, overlooks what was made clear in Tinker, Fraser, and Kuhlmeier. Student First Amendment rights are “applied in light of the special characteristics of the school environment.” Tinker,
Concurrence Opinion
concurring.
The Court today decides that a public school may prohibit speech advocating illegal
I
The First Amendment states that “Congress shall make no law... abridging the freedom of speech.” As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire,
A
During the colonial era, private schools and tutors offered the only educational opportunities for children, and teachers managed classrooms with an iron hand. R. Butts & L. Cremin, A History of Education in American Culture 121, 123 (1953) (hereinafter Butts). Public schooling arose, in part, as a way to educate those too poor to afford private schools. See Kaestle & Vinovskis, From Apron Strings to ABCs: Parents, Children, and Schooling in Nineteenth-Century Massachusetts, 84 Am. J. Sociology S39, S49 (Supp. 1978). Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800’s, no one doubted the government’s ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control. Reese 23; A. Potter & G. Emerson, The School and the Schoolmaster: A Manual 125 (1843) (“By its discipline it contributes, insensibly, to generate a spirit of subordination to lawful authority, a power of self-control, and a habit of postponing present indulgence to a greater future good ... ”); D. Parkerson & J. Parkerson, The Emergence of the Common School in the U. S. Countryside 6 (1998) (hereinafter Parkerson) (noting that early education activists, such as Benjamin Rush, believed public schools “help[ed] control the innate selfishness of the individual”).
Teachers instilled these values not only by presenting ideas but also through
In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.
B
Through the legal doctrine of in loco parentis, courts upheld the right of schools to discipline students, to enforce rules, and to maintain order.
As early as 1837, state courts applied the in loco parentis principle to public schools:
“One of the most sacred duties of parents, is to train up and qualify their children, for becoming useful and virtuous members of society; this duty cannot be effectually performed without the ability to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits.... The teacher is the substitute of the parent;... and in the exercise of these delegated duties,is invested with his power.” State v. Pendergrass, 19 N. C. 365 , 365-366 (1837).
Applying in loco parentis, the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order. Sheehan v. Sturges,
“To accomplish th[e] desirable ends [of teaching self-restraint, obedience, and other civic virtues], the master of a school is necessarily invested with much discretionary power.... He must govern these pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn. He must make rules, give commands, and punish disobedience. What rules, what commands, and what punishments shall be imposed, are necessarily largely within the discretion of the master, where none are defined by the school board.” Patterson v. Nutter,78 Me. 509 , 511,7 A. 273 , 274 (1886).4
A review of the case law shows that in loco parentis allowed schools to regulate student speech as well. Courts routinely preserved the rights of teachers to punish speech that the school or teacher thought was contrary to the interests of the school and its educational goals. For example, the Vermont Supreme Court upheld the corporal punishment of a student who called his teacher “Old Jack Seaver” in front of other students. Lander v. Seaver,
“[L]anguage used to other scholars to stir up disorder and subordination, or to heap odium and disgrace upon the master; writings and pictures placed so as to suggest evil and corrupt language, images and thoughts to the youth who must frequent the school; all such or similar acts tend directly to impair the usefulness of the school, the welfare of the scholars and the authority of the master. By common consent and by the universal custom in our New England schools, the master has always been deemed to have the right to punish such offences. Such power is essential to the preservation of order, decency, decorum and good government in schools.” Id., at 121.
Similarly, the California Court of Appeal upheld the expulsion of a student who gave a speech before the student body that criticized the administration for having an unsafe building “because of the possibility of fire.” Wooster v. Sunderland,
II
Tinker effected a sea change in students’ speech rights, extending them well beyond traditional bounds. The case arose when a school punished several students for wearing black armbands to school to protest the Vietnam War.
“[W]here there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.” Id., at 509 (internal quotation marks omitted).
Accordingly, unless a student’s speech would disrupt the educational process, students had a fundamental right to speak their minds (or wear their armbands) — even on matters the school disagreed with or found objectionable. Ibid. (“[The school] must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”).
Justice Black dissented, criticizing the Court for “subjecting] all the public
Of course, Tinker’s reasoning conflicted with the traditional understanding of the judiciary’s role in relation to public schooling, a role limited by in loco parentis. Perhaps for that reason, the Court has since scaled back Tinker’s standard, or rather set the standard aside on an ad hoc basis. In Bethel School Dist. No. 403 v. Fraser,
Similarly, in Hazelwood School Dist. v. Kuhlmeier,
Today, the Court creates another exception. In doing so, we continue to distance ourselves from Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not. Ante, at 404-409. I am afraid that our jurisprudence now says that students have a right to speak in schools except when they do not — a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.
Ill
In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect
It might be suggested that the early school speech cases dealt only with slurs and profanity. But that criticism does not withstand scrutiny. First, state courts repeatedly reasoned that schools had discretion to impose discipline to maintain order. The substance of the student’s speech or conduct played no part in the analysis. Second, some cases involved punishment for speech on weightier matters, for instance a speech criticizing school administrators for creating a fire hazard. See Wooster,
To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal.,
In place of that democratic regime, Tinker substituted judicial oversight of the day-to-day affairs of public schools. The Tinker Court made little attempt to ground its holding in the history of education or in the original understanding of the First Amendment.
And because Tinker utterly ignored the history of public education, courts (including this one) routinely find it necessary to create ad hoc exceptions to its central premise. This doctrine of exceptions creates confusion without fixing the underlying problem by returning to first principles. Just as I cannot accept Tinker’s standard, I cannot subscribe to Kuhlmeier’s alternative. Local school boards, not the courts, should determine what pedagogical interests are “legitimate” and what rules “reasonably relat[e]” to those interests.
Justice Black may not have been “a prophet or the son of a prophet,” but his dissent in Tinker has proved prophetic.
* * *
I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.
Although the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment, most state constitutions included free-speech guarantees during the period when public education expanded. E. g., Cal. Const., Art. I, §9 (1849); Conn. Const., Art. I, §5 (1818); Ind. Const., Art. I, §9 (1816).
Even at the college level, strict obedience was required of students: “The English model fostered absolute institutional control of students by faculty both inside and outside the classroom. At all the early American schools, students lived and worked under a vast array of rules and restrictions. This one-sided relationship between the student and the college mirrored the situation at English schools where the emphasis on hierarchical authority stemmed from medieval Christian theology and the unique legal privileges afforded the university corporation.” Note, 44 Vand. L. Rev. 1135, 1140 (1991) (footnote omitted).
My discussion is limited to elementary and secondary education. In these settings, courts have applied the doctrine of in loco parentis regardless of the student’s age. See, e. g., Stevens v. Fassett,
Even courts that did not favor the broad discretion given to teachers to impose corporal punishment recognized that the law provided it. Cooper v. McJunkin,
Courts also upheld punishment when children refused to speak after being requested to do so by their teachers. See Board of Ed. v. Helston,
At least nominally, this Court has continued to recognize the applicability of the in loco parentis doctrine to public schools. See Vernonia School Dist. 47J v. Acton,
Distancing itself from Tinker’s approach, the Fraser Court quoted Justice Black’s dissent in Tinker.
The Tinker Court claimed that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”
Concurrence Opinion
with whom Justice Kennedy joins, concurring.
I join the opinion of the Court on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 445 (Stevens, J., dissenting).
The opinion of the Court correctly reaffirms the recognition in Tinker v. Des Moines Independent Community School Dist.,
But I do not read the opinion to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of this Court. In addition to Tinker, the decision in the present case allows the restriction of speech advocating illegal drug use; Bethel School Dist. No. 403 v. Fraser,
The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The “educational mission” of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups. ’
During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission. Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war. The “educational mission” argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment.
The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear— to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental
For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting. The special characteristic that is relevant in this case is the threat to the physical safety of students. School attendance can expose students to threats to their physical safety that they would not otherwise face. Outside of school, parents can attempt to protect their children in many ways and may take steps to monitor and exercise control over the persons with whom their children associate. Similarly, students, when not in school, may be able to avoid threatening individuals and situations. During school hours, however, parents are not present to provide protection and guidance, and students’ movements and their ability to choose the persons with whom they spend time are severely restricted. Students may be compelled on a daily basis to spend time at close quarters with other students who may do them harm. Experience shows that schools can be places of special danger.
In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio,
Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
Concurrence Opinion
concurring in the judgment in part and dissenting in part.
This Court need not and should not decide this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more.
I
Resolving the First Amendment question presented in this case is, in my view, unwise and unnecessary. In part that is because the question focuses upon specific content narrowly defined: May a school board punish students for speech that advocates drug use and, if so, when? At the same time, the underlying facts suggest that Principal Morse acted as she did not simply because of the specific content and viewpoint of Joseph Frederick’s speech but also because of the surrounding context and manner in which Frederick expressed his views. To say that school officials might reasonably prohibit students during school-related events from unfurling 14-foot banners (with any kind of irrelevant or inappropriate message) designed to attract attention from television cameras seems unlikely to undermine basic First Amendment principles. But to hold, as the Court does, that “schools may take steps to safeguard those entrusted to
One concern is that, while the holding is theoretically limited to speech promoting the use of illegal drugs, it could in fact authorize further viewpoint-based restrictions. Illegal drugs, after all, are not the only illegal substances. What about encouraging the underage consumption of alcohol? Moreover, it is unclear how far the Court’s rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick’s banner had read “LEGALIZE BONG HiTS,” he might be thought to receive protection from the majority’s rule, which goes to speech “encouraging illegal drug use.” Ante, at 397 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.
Legal principles must treat like instances alike. Those principles do not permit treating “drug use” separately without a satisfying explanation of why drug use is sui generis. To say that illegal drug use is harmful to students, while surely true, does not itself constitute a satisfying explanation because there are many such harms. During a real war, one less metaphorical than the war on drugs, the Court declined an opportunity to draw narrow subject-matter-based lines. Cf. West Virginia Bd. of Ed. v. Barnette,
Although the dissent avoids some of the majority’s pitfalls, I fear that, if adopted as law, it would risk significant interference with reasonable sehool efforts to maintain discipline. What is a principal to do when a student unfurls a 14-foot banner (carrying an irrelevant or inappropriate message) during a school-related event in an effort to capture the attention of television cameras? Nothing? In my view, a principal or a teacher might reasonably view Frederick’s conduct, in this setting, as simply beyond the pale. And a school official, knowing that adolescents often test the outer boundaries of acceptable behavior, may believe it is important (for the offending student and his classmates) to establish when a student has gone too far.
Neither can I simply say that Morse may have taken the right action (confiscating Frederick’s banner) but for the wrong reason (“drug speech”). Teachers are neither lawyers nor police officers; and the law should not demand that they fully understand the intricacies of our First Amendment jurisprudence. As the majority rightly points out, the circumstances here called for a quick decision. See ante, at 410 (noting that “Morse had to decide to act — or not act — on the spot”). But this consideration is better understood in terms of qualified immunity than of the First Amendment. See infra, at 429-432.
All of this is to say that, regardless of the outcome of the constitutional determination, a decision on the underlying First Amendment issue is both difficult and unusually portentous. And that is a reason
In some instances, it is appropriate to decide a constitutional issue in order to provide “guidance” for the future. But I cannot find much guidance in today’s decision. The Court makes clear that school officials may “restrict” student speech that promotes “illegal drug use” and that they may “take steps” to “safeguard” students from speech that encourages “illegal drug use.” Ante, at 397, 403. Beyond “steps” that prohibit the unfurling of banners at school outings, the Court does not explain just what those “restrict[ions]” or those “steps” might be.
Nor, if we are to avoid the risk of interpretations that are too broad or too narrow, is it easy to offer practically valuable guidance. Students will test the limits of acceptable behavior in myriad ways better known to schoolteachers than to judges; school officials need a degree of flexible authority to respond to disciplinary challenges; and the law has always considered the relationship between teachers and students special. Under these circumstances, the more detailed the Court’s supervision becomes, the more likely its law will engender further disputes among teachers and students. Consequently, larger numbers of those disputes will likely make their way from the schoolhouse to the courthouse. Yet no one wishes to substitute courts for school boards, or to turn the judge’s chambers into the principal’s office.
In order to avoid resolving the fractious underlying constitutional question, we need only decide a different question that this case presents, the question of “qualified immunity.” See Pet. for Cert. 23-28. The principle of qualified immunity fits this case perfectly and, by saying so, we would diminish the risk of bringing about the adverse consequences I have identified. More importantly, we should also adhere to a basic constitutional obligation by avoiding unnecessary decision of constitutional questions. See Ashwander v. TVA,
II
A
The defense of “qualified immunity” requires courts to enter judgment in favor of a government employee unless the employee’s conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
Qualified immunity applies here and entitles Principal Morse to judgment on Frederick’s monetary damages claim because she did not clearly violate the law during her confrontation with the student. At the time of that confrontation, Tinker v. Des Moines Independent Community School Dist.,
The Ninth Circuit thought it “clear” that these cases did not permit Morse’s actions. See
The relative ease with which we could decide this case on the qualified immunity ground, and thereby avoid deciding a far more difficult constitutional question, underscores the need to lift the rigid “order of battle” decisionmaking requirement that this Court imposed upon lower courts in Saucier v. Katz,
I have previously explained why I believe we should abandon Saucier’s order-of-battle rule. See Scott v. Harris,
This last point warrants amplification. In resolving the underlying constitutional question, we produce several differing opinions. It is utterly unnecessary to do so. Were we to decide this case on the ground of qualified immunity, our decision would be unanimous, for the dissent concedes that Morse should not be held liable in damages for confiscating Frederick’s banner. Post, at 434 (opinion of Stevens, J.). And the “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to
If it is Saucier that tempts this Court to adhere to the rigid “order of battle” that binds lower courts, it should resist that temptation. Saucier does not bind this Court. Regardless, the rule of Saucier has generated considerable criticism from both. commentators and judges. See Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275 (2006) (calling the requirement “a puzzling misadventure in constitutional dictum”); Dirrane v. Brookline Police Dept.,
Finally, several Members of this Court have previously suggested that always requiring lower courts first to answer constitutional questions is misguided. See County of Sacramento v. Lewis,
B
There is one remaining objection to deciding this case on the basis of qualified immunity alone. The plaintiff in this case has sought not only damages; he has also sought an injunction requiring the school district to expunge his suspension from its records. A “qualified immunity” defense applies in respect to damages actions, but not to injunctive relief. See, e. g., Wood v. Strickland,
I seriously doubt, however, that it does remain. At the plaintiff’s request, the school superintendent reviewed Frederick’s 10-day suspension. The superintendent,
The upshot is that the school board’s refusal to erase the suspension from the record may well be justified on non-speech-related grounds. In addition, plaintiff’s counsel appeared to agree with the Court’s suggestion at oral argument that Frederick “would not pursue” injunctive relief if he prevailed on the damages question. Tr. of Oral Arg. 46-48. And finding that Morse was entitled to qualified immunity would leave only the question of injunctive relief.
Given the high probability that Frederick’s request for an injunction will not require a court to resolve the constitutional issue, see Ashwander,
Dissenting Opinion
with whom Justice Souter and Justice Ginsburg join, dissenting.
A significant fact barely mentioned by the Court sheds a revelatory light on the motives of both the students and the principal of Juneau-Douglas High School (JDHS). On January 24, 2002, the Olympic Torch Relay gave those Alaska residents a rare chance to appear on national television. As Joseph Frederick repeatedly explained, he did not address the curious message — “BONG HiTS 4 JESUS” — to his fellow students. He just wanted to get the camera crews’ attention. Moreover, concern about a nationwide evaluation of the conduct of the JDHS student body would have justified the principal’s decision to remove an attention-grabbing 14-foot banner, even if it had merely proclaimed “Glaciers Melt!”
I agree with the Court that the principal should not be held liable for pulling down Frederick’s banner. See Harlow v. Fitzgerald,
The Court holds otherwise only after laboring to establish two uncontroversial propositions: first, that the constitutional rights of students in school settings are not coextensive with the rights of adults, see ante, at 403-406; and second, that deterring drug use by schoolchildren is a valid and terribly important interest, see ante, at 407-408. As to the first, I take the Court’s point that the message on Frederick’s banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’ rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to
In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding — indeed, lauding — a school’s decision to punish Frederick for expressing a view with which it disagreed.
I
In December 1965, we were engaged in a controversial war, a war that “divided this country as few other issues ever have.” Tinker v. Des Moines Independent Community School Dist.,
Justice Harlan dissented, but not because he thought the school district could censor a message with which it disagreed. Rather, he would have upheld the district’s rule only because the students never cast doubt on the district’s antidisruption justification by proving that the rule was motivated “by other than legitimate school concerns — for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.” Id., at 526.
Two cardinal First Amendment principles animate both the Court’s opinion in Tinker and Justice Harlan’s dissent. First, censorship based on the content of speech, particularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of justification:
“Discrimination against speech because of its message is presumed to be unconstitutional. ... When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector and Visitors of Univ. of Va.,515 U. S. 819 , 828-829 (1995) (citation omitted).
However necessary it may be to modify those principles in the school setting, Tinker affirmed their continuing vitality.
“regulation of student speech is generally permissible only when the speech would substantially disrupt or interfere with the work of the school or the rights of other students. . . . Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance.” Saxe v. State College Area School Dist.,240 F. 3d 200 , 211 (CA3 2001) (Alito, J.) (emphasis added).
Yet today the Court fashions a test that trivializes the two cardinal principles upon which Tinker rests. See ante, at 408 (“[S]chools [may] restrict student expression that they reasonably regard as promoting illegal drug use”). The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, see App. 25 — a viewpoint, incidentally, that Frederick has disavowed, see id., at 28. Unlike our recent decision in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, ante, at 296 (plurality opinion), see also ante, at 423 (Alito, J., concurring), the Court’s holding in this case strikes at “the heart of the First Amendment” because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson,
It is also perfectly clear that “promoting illegal drug use,” ante, at 409, comes nowhere close to proseribable “incitement to imminent lawless action.” Brandenburg,
“Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. . . . Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that theadvocacy would be immediately acted on.” Whitney v. California, 274 U. S. 357 , 376 (1927) (Brandeis, J., concurring) (footnote omitted).
No one seriously maintains that drug advocacy -(much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.” Gitlow v. New York,
II
The Court rejects outright these twin foundations of Tinker because, in its view, the unusual importance of protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use. Whether or not such a rule is sensible as a matter of policy, carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.
I will nevertheless assume for the sake of argument that the school’s concededly powerful interest in protecting its students adequately supports its restriction on “any assembly or public expression that . . . advocates the use of substances that are illegal to minors . . . .” App. to Pet. for Cert. 53a. Given that the relationship between schools and students “is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,” Vernonia School Dist. 47J v. Acton,
But it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively— and not very reasonably — thinks is tantamount to express advocacy. Cf. Masses Pub. Co. v. Patten,
“Students will not be disturbed in the exercise of their constitutionally guaranteed rights to assemble peaceably and to express ideas and opinions, privately or publicly, provided that their activities do not infringe on the rights of others and do not interfere with the operation of the educational program.
“The Board will not permit the conduct on school premises of any willfulactivity ... that interferes with the orderly operation of the educational program or offends the rights of others. The Board specifically prohibits any assembly or public expression that . . . advocates the use of substances that are illegal to minors . ...” App. to Pet. for Cert. 53a; see also ante, at 398 (opinion of the Court) (quoting rule in part).
There is absolutely no evidence that Frederick’s banner’s reference to drug paraphernalia “willful[ly]” infringed on anyone’s rights or interfered with any of the school’s educational programs.
But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it punts is tricky; “[t]he mode of analysis [it] employ[s] ... is not entirely clear,” see ante, at 404. On occasion, the Court suggests it is deferring to the principal’s “reasonable” judgment that Frederick’s sign qualified as drug advocacy.
To the extent the Court defers to the principal’s ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see Brandenburg,
Such a peculiar doctrine is alien to our case law. In Abrams v. United States,
Even if advocacy could somehow be wedged into Frederick’s obtuse reference to marijuana, that advocacy was at best subtle and ambiguous. There is abundant precedent, including another opinion The Chief Justice announces today, for the proposition that when the “First Amendment is implicated, the tie goes to the speaker,” Federal Election Comm'n v. Wisconsin Right to Life, Inc., post, at 474 (principal opinion), and that “when it comes to defining what speech qualifies as the functional equivalent of express advocacy ... we give the benefit of the doubt to speech, not censorship,” post, at 482. If this were a close case, the tie would have to go to Frederick’s speech, not to the principal’s strained reading of his quixotic message.
Among other things, the Court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use.
Consider, too, that the school district’s rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all “substances that are illegal to minors.” App. to Pet. for Cert. 53a; see also App. 83 (expressly defining “‘drugs’” to include “all alcoholic beverages”). Given the tragic consequences of teenage alcohol consumption — drinking causes far more fatal accidents than the misuse of marijuana — the school district’s interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court’s reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a “WINE SiPS 4 JESUS” banner — which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message — the breathtaking sweep of its opinion suggests it would.
Ill
Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message. Our First Amendment jurisprudence has identified some categories of expression that are less deserving of protection than others — fighting words, obscenity, and commercial speech, to name a few. Rather than reviewing our opinions discussing sueh categories, I mention two personal recollections that have no doubt influenced my conclusion that it would be profoundly unwise to create special rules for speech about drug and alcohol use.
The Vietnam War is remembered today as an impopular war. During its early stages, however, “the dominant opinion” that Justice Harlan mentioned in his Tinker dissent regarded opposition to the war as unpatriotic, if not treason.
Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,
Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. Whitney, 274 U. S., at 377 (Brandeis, J., concurring); Abrams,
I respectfully dissent.
I also seriously question whether such a ban could really be enforced. Consider the difficulty of monitoring student conversations between classes or in the cafeteria.
It is also relevant that the display did not take place “on school premises,” as the rule contemplates. App. to Pet. for Cert. 53a. While a separate district rule does make the policy applicable to “social.events and class trips,” id., at 58a, Frederick might well have thought that the Olympic Torch Relay was neither a “social event” (for example, prom) nor a “class trip.”
See ante, at 396 (stating that the principal “reasonably regarded” Frederick’s banner as “promoting illegal drug use”); ante, at 401 (explaining that “Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one”); ante, at 403 (asking whether “a principal may . . . restrict student speech . . . when that speech is reasonably viewed as promoting illegal drug use”); ante, at 408 (holding that “schools [may] restrict student expression that they reasonably regard as promoting illegal drug use”); see also ante, at 422 (Auto, J., concurring) (“[A] public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use”).
See ante, at 402 (“We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs”); ante, at 409 (observing that “[w]e have explained our view” that “Frederick’s banner constitutes promotion of illegal drug use”).
The reasonableness of the view that Frederick’s message was unprotected speech is relevant to ascertaining whether qualified immunity should shield the principal from liability, not to whether her actions violated Frederick’s constitutional rights. Cf. Saucier v. Katz,
This same reasoning applies when the interpreter is not just a listener, but a legislature. We have repeatedly held that “[d]eferenee to a legislative finding” that certain types of speech are inherently harmful “cannot limit judicial inquiry when First Amendment rights are at stake,” reasoning that “the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution.” Landmark Communications, Inc. v. Virginia,
In affirming Frederick’s suspension, the district superintendent acknowledged that Frederick displayed his message “for the benefit of television cameras covering the Torch Relay.” App. to Pet. for Cert. 62a.
The Court’s opinion ignores the fact that the legalization of marijuana is an issue of considerable public concern in Alaska. The State Supreme Court held in 1975 that Alaska’s Constitution protects the right of adults to possess less than four ounces of marijuana for personal use. Ravin v. State,
See Gonzales v. Raich,
Id., at 5 (noting that “at least nine States . . . authorize the use of marijuana for medicinal purposes”).