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12 Lewis & Clark L. Rev. [i] (2008)

handle is hein.journals/lewclr12 and id is 1 raw text is: Lewis & Clark Law Review VOLUME 12 SPRING 2008 NuiaEmR 1 SYMPOSIUM SPEECH AND THE PUBLIC SCHOOLS AFTER MORSE V. FREDERICK Our Libertarian Court: Bong Hits and the Enduring Hamiltonian- Jeffersonian Colloquy K enneth W . Starr ............................................... The Supreme Court's decision in Morse v. Frederick, otherwise known as the Bong Hits 4Jesus case, highlights the non-realization of ChiefJus- tice Roberts's goal of greater cohesion and unanimity among the nine Justices. Bong Hits is an example of the ChiefJustice appearing increas- ingly among the majority, Justice Stevens speaking vigorously for the minority, andJustice Thomas's iconoclastic approach to constitutional issues. Importantly, the case also reveals a trend of alliance between Justices Kennedy and Alito and their shared Hamiltonian skepticism of local power, as well as Chief Justice Roberts' unsuccessful attempts to limit constitutional questions to narrow grounds of decision. This Essay explores the divided factions of the Court through the lens of Bong Hits and offers further insight into the Justices' constitutional jurisprudence. How Will Morse v. Frederick Be Applied? Erwin Chemerinsky .............................................. 17 In 2007, the Supreme Court decided Morse v. Frederick, a 54 decision in which ChiefJustice Roberts, writing for the majority, decided that a student could be punished for displaying a banner with the words BONG HiTS 4JESUS on a public sidewalk. In this Essay, the author explores the implications of this decision, focusing on the important question of how it will be understood and applied by school officials, school boards, and lower court judges. The author suggests that the opinion was misguided and-from a First Amendment perspective- highly undesirable. The author argues that the decision cannot be justified under existing First Amendment principles, and cautions that it could be seen as authorizing punishment of students for speech that is deemed distasteful or offensive, even just juvenile. However, the concurring opinion by Justice Alito suggests that the decision is exceedingly nar- row and based on a very unusual factual context. The author notes that if Justice Alito's opinion is seen as defining the scope of the hold- ing, the case establishes only the power of schools to punish speech encouraging illegal drug use rather than giving school officials great discretion to punish student speech. Despite the fact that Morse v. Frederick is consistent with decisions from the Supreme Court and lower federal courts over the last two decades, the author's hope is that Chief Justice Roberts's majority opinion will be read through the prism of Justice Alito's concurring

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