Vol. 21 No. 7 (July, 2011) pp.430-433
BONG HiTS 4 JESUS: A PERFECT CONSTITUTIONAL STORM IN ALASKA’S CAPITAL, by James
C. Foster.
Fairbanks: University of Alaska Press, 2010. 384pp.
Paperback. $29.95. ISBN: 9781602230897.
Reviewed by Jerome O’Callaghan, Associate Dean, Arts and Sciences, State
University of New York at Cortland. Email: Jerome.Ocallaghan [at] cortland.edu.
In his introductory notes to BONG HiTS 4 JESUS, James C. Foster identifies the
tradition of in-depth analysis of particular Supreme Court cases that he truly
admires; the tradition involves taking one case (or a small set) and delving
into its legal, political, anthropological, and literary dimensions. He refers
to authors such as Alan Westin, Peter Irons and Anthony Lewis in this context –
many readers will immediately know what to expect. While Westin, Irons et al.
tackled landmark opinions, Foster takes his microscope to a case somewhat less
elevated, MORSE v. FREDERICK, a student free speech case originating in 2002 in
Juneau, Alaska. MORSE took a five year odyssey to the United States Supreme
Court in 2007 and then came to a painful conclusion in the fall of 2008.
As Justice Holmes once put it, “the character of every act depends upon
the circumstances in which it is done” and it is the circumstance of MORSE v.
FREDERICK that entices Foster to a book-length analysis.
In the beginning we should have the facts of the case but in MORSE some key
facts are problematic. Beyond dispute is that a school district approved an
event where students would line the street to cheer on the Winter Olympic torch
relay as it passed in front of Juneau-Douglas High School. Students were
released from the school building and lined both sides of the street; some were
on school property, some were not. It was January in Alaska, no one was going to
stay waving at the relay, or the TV cameras, for very long. Principal Deborah
Morse was present, trying to minimize snowball incidents. One group of students
wanted to attract TV coverage by displaying a banner with a provocative slogan.
The slogan they chose was "BONG HiTS 4 JESUS."
Joseph Frederick was one of that group, and he was the one holding the
banner when the Principal crossed the street, confronted him and seized the
banner. Frederick was subsequently punished for a variety of infractions of
school policy. As for why the banner had that particular slogan, Frederick can
only offer that we "wanted to piss people off" (p. 27).
One of the key complications of this case is that the banner was not on school
property, neither was the student who was punished. In fact Frederick had not
yet attended school that day; he was, at least in his own eyes, a truant.
The relay was not a school event -- but cheering it on was a
school-sponsored event. There are strong arguments on each side as to whether
this was a school speech case in the first place.
The other contextual problem is the meaning of the slogan. It has been
characterized as both gibberish and pro-drug advocacy. Priding himself on being
an outsider and provocateur, Frederick claims it was not designed to [*431]
advocate anything. He wanted to assert his rights, simply, to be controversial.
Somehow he was surprised when the controversy blew up in his face.
The legal context for this dispute rests in the landmark decision of TINKER v.
DES MOINES. In 1969 the Supreme
Court decided in favor of the free speech rights of students wearing anti-war
armbands in school. The famous aphorism that students do not lose their rights
to free speech at the schoolhouse gate comes from TINKER.
As precedent, TINKER has its limitations; the case involves political
speech by students, speech that was deemed non-disruptive by the Supreme Court.
As Foster points out, TINKER does little to assert a set of particular rights
for students, instead it identifies the limits on the school's authority in the
narrowly circumscribed context of the case.
The political context for TINKER was the national divide over the Viet-Nam war.
It is a different kind of war that provides a critically important
political context for MORSE v. FREDERICK: the war on drugs. BONG HiTS takes the
reader through both the TINKER case and all the subsequent Supreme Court
decisions in similar territory. As followers of the Supreme Court will likely
know, students have had little luck before the high court since 1969.
In both free speech (HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER and BETHEL
SCHOOL DISTRICT v. FRASER) and fourth amendment cases (VERNONIA SCHOOL DISTRICT
v. ACTON, BOARD OF EDUCATION v. EARLS and NEW JERSEY v. T.L.O.) student claims
have been turned down every time. This is not good news for Frederick, nor does
it help what Foster calls the “injury narrative” Frederick developed:
his free speech rights (using a sign on a public street) were stripped
from him by a school administrator who had no authority over him. On the other
side we see an “accountability narrative”: Principal Morse had a responsibility
to the school to punish those who promote drug use. Morse believes she
interpreted the banner in a reasonable manner and feels persecuted by litigation
over a clear school policy. (There is a secondary issue in the litigation about
her personal liability for damages). She feels principals should not be
second-guessed by the courts on policy enforcement decisions.
Foster spends significant time pointing out how pride and intransigence
contributed to the development of the case. He guides us skillfully through each
step: the school proceedings followed by the federal proceedings (district
court, circuit court, and Supreme Court) and the background mediation efforts.
The federal district court did not help matters by issuing a summary judgment
while asserting that there was no dispute about the essential facts in the case.
This only contributed to both parties feeling that their interpretation
of the facts was correct. When the dust settled, Frederick had lost at every
level of proceeding except one, the famously contrary Ninth Circuit Court of
Appeals.
Foster's structure is more or less chronological; by following one case very
closely over a long time he finds opportunities to discuss a variety of issues
involved in constitutional litigation. There are thorough discussions of the
importance of amici in these cases (Ken Starr is a central [*432] amicus
advocate for Morse), the debate over the significance of oral arguments, and
different styles of leadership in the Supreme Court. Foster’s interviews with
the attorneys and litigants are particularly helpful. This case study is also
exhaustively researched, after 225 pages of text, there are 92 pages of
endnotes, followed by 27 pages of bibliography.
A point nicely made by Foster is that the Supreme Court decision is not the
ending point of the dispute. Frederick attempted to push other issues in the
courts after his defeat in 2007; while the school district argued that all his
claims were moot after his free speech claim was denied in Washington. Positions
had hardened considerably and a mood of spite seemed to predominate among the
attorneys. The surprise here is that in 2008 the school district settled the
case, giving Frederick $45,000 to stop the litigation (then returning to the
Ninth Circuit). There was no sign that the school was about to lose on any
count, but the simple business of endless litigation (and the bad blood it
encouraged in the community) had worn that side down. In the end of the end,
both sides could claim a less-than-convincing victory. Another nugget that
Foster reveals (oddly buried in the endnotes), is that twice in the 1980s
attorney John Roberts was hired by Ken Starr for important Department of Justice
positions; when Chief Justice John Roberts listened to attorney Ken Starr argue
for Deborah Morse in 2007, he was listening to an old ally.
Foster rightly criticizes the Supreme Court judgment, for the simple fact that
the decision did little to help anyone understand or implement new standards in
this area. Ostensibly it was a 5-4 decision, but there were 5 opinions and 3 of
those 5 were members of the majority opinion failing to agree with each other.
All this is ironic given the objective of Chief Justice Roberts (author of the
majority opinion) to be a "uniter" on the court. The core of the majority
opinion is that principals may restrict speech reasonably perceived as promoting
drug use at school events. As one might expect given the absence of a trial on
the facts, there remained a significant dispute between the majority and
dissenting opinions on the salient facts in MORSE v. FREDERICK.
TINKER was decided a few short months before the retirement of Chief Justice
Earl Warren; at that point the political tide turned. The next 11 justices
appointed to the court were, as Foster points out, selected by Republican
Presidents. So TINKER, like many other precedents from that era, faced ever more
deliberate erosion from increasingly conservative courts. Aside from the fact
that the Supreme Court precedents since TINKER were not on his side, plaintiff
Frederick also faced two other obstacles. First, this case could easily be
characterized as a drug-advocacy case; that fact alone excited conservative
groups willing to provide amici briefs.
Second, conservative courts tend to denounce what they perceive as
judicial activism, while they promote judicial deference to experts on the
ground. Frederick had the wrong issues in front of the wrong court.
It's hard not to like a legal text that engages a discussion of Kurosawa's
Rashomon, references the film director Robert Altman and quotes from Death of a
Salesman. On the other hand when [*433] Foster uses "sophisticate" as a verb, he
is a fighting a losing battle with this reader.
This is an interesting analysis that clearly reveals there is more to the
law than the pronouncements of high courts. However the MORSE decision is not a
landmark case and Foster’s analysis concludes on a surprisingly limp note. The
author reminds us that a spirit of compromise in Juneau would have avoided not
only costly litigation but the hardening of positions that reverberated in the
community. Developing a
why-can’t-we-all-just-get-along admonition, he informs the reader that he would
have decided the case differently by “thread[ing] the needle” of acknowledging
the principal’s authority while respecting the student’s rights (p. 215). Things
turn Oprah-esque as Foster concludes that principals should focus on problem
solving, not punishing; more “dialoging” is better than less etc.
As homilies for empathy, these points are fair enough, but the authors he
cited at the outset (Westin, Irons et al.) had no compunction about enjoying the
battles that trudge all the way to the Supreme Court. Foster might have ended
more aptly with Ambrose Bierce’s definition of litigation:
A machine which you go into as a pig and come out of as a sausage.
REFERENCES:
Bierce, Ambrose. THE DEVIL’S DICTIONARY. Available online at:
http://xroads.virginia.edu/~hyper/bierce/bierce.html#L
Irons, Peter. 1988. THE COURAGE OF
THEIR CONVICTIONS. New York: The Free Press.
Lewis, Anthony. 1964 GIDEON’S TRUMPET. New York: Vintage Books.
Westin, Alan. 1958. THE ANATOMY OF
A CONSTITUTIONAL CASE. New York: MacMillan.
CASE REFERENCES:
BETHEL SCHOOL DISTRICT v. FRASER, 478 U.S. 675 (1986).
BOARD OF EDUCATION v. EARLS, 536 U.S. 822 (2002).
HAZELWOOD SCHOOL DISTRICT ET AL. v. KUHLMEIER ET AL., 484 U.S. 260 (1988).
NEW JERSEY v. T.L.O., 469 U.S. 325 (1985).
TINKER v DES MOINES, 393 U.S. 503 (1969).
VERNONIA SCHOOL DISTRICT v. ACTON, 515 U.S. 646 (1995).
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© Copyright 2011 by the author, Jerome O’Callaghan.