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.
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.
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).
© Copyright 2011 by the author, Jerome O’Callaghan.