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Lewis & Clark Law Review

Volume 12 / Number 1 / Spring 2008


SYMPOSIUM: Speech and the Public Schools
After Morse v. Frederick

Our Libertarian Court:
Bong Hits and the Enduring Hamiltonian-Jeffersonian Colloquy

Kenneth W. Starr

12 Lewis & Clark L. Rev. 1 (2008)

The Supreme Court’s decision in Morse v. Frederick, otherwise known as the “Bong Hits 4 Jesus” case, highlights the non-realization of Chief Justice Roberts’s goal of greater cohesion and unanimity among the nine Justices. Bong Hits is an example of the Chief Justice appearing increasingly among the majority, Justice Stevens speaking vigorously for the minority, and Justice 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

12 Lewis & Clark L. Rev. 17 (2008)

In 2007, the Supreme Court decided Morse v. Frederick, a 5-4 decision in which Chief Justice Roberts, writing for the majority, decided that a student could be punished for displaying a banner with the words “BONG HiTS 4 JESUS” 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 narrow 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 holding, 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 opinion, thereby having little effect on the already very limited First Amendment rights of students.

Sanctionable Conduct:
How the Supreme Court Stealthily Opened the Schoolhouse Gate

Sonja R. West

12 Lewis & Clark L. Rev. 27 (2008)

The Supreme Court’s decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after a long silence, but concludes that the messy facts in the case chosen made the case a poor vehicle for the Court to address the underlying school-speech issues.

Can There Really Be “Free Speech” in Public Schools?

Richard W. Garnett

12 Lewis & Clark L. Rev. 45 (2008)

The Supreme Court’s decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students’ speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the “basic educational mission” of public schools, and what are the implications of this “mission” for officials’ authority and students’ free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the “mission” of the public schools? We all recall Justice Jackson’s stirring rhetoric in the West Virginia flag-salute case: “If there is any fixed star in our constitutional constellation,” he proclaimed, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.]” But, is this really true—could it be true?—in public schools?

Bong Hits 4 Jesus as a Cautionary Tale of Two Cities

Stephen Kanter

12 Lewis & Clark L. Rev. 61 (2008)

In September of 1987, several high school students in Tigard, Oregon wore various T-shirts allegedly promoting the use of alcohol. In January of 2002, a number of students in Juneau, Alaska held up a banner with the words “BONG HITS 4 JESUS” on it while the Olympic torch passed by their school. Both groups of students claimed their First Amendment rights were violated when they were summarily punished for their actions; however, the processes and the end result in each case were quite different. This Article recounts how the Tigard High administration turned the situation into a learning experience. A mock Supreme Court was convened, with high school students acting as attorneys on both sides of the issue. The author then compares the treatment and outcome of the Oregon T-shirt incident with that of the Alaska banner incident, concluding that the administration in the “Bong Hits” case missed a valuable learning opportunity, ultimately resulting in dire consequences for student speech. The Article analyzes the five separate opinions in Morse v. Frederick and criticizes the United States Supreme Court for diluting student rights. The author draws important lessons from different Justices’ views to suggest what the future may portend for the direction of the current United States Supreme Court.

High-Value Speech and the Basic Educational Mission
of a Public School: Some Preliminary Thoughts

Douglas Laycock

12 Lewis & Clark L. Rev. 111 (2008)

This Article assesses the alarming proposition at the core of the school’s argument in Morse v. Frederick: that a school has constitutional power to suppress any speech inconsistent with its self-defined “basic educational mission.” The phrase was taken from an earlier opinion upholding punishment of the “vulgar and lewd” manner in which an idea was expressed. It would be a very different thing to extend this concept to suppression of the idea itself.

This Article explores the extent to which inculcating particular ideas can be part of a school’s mission, and the still narrower set of cases in which suppression of dissent can be an acceptable means of inculcating those ideas. While the Court cannot identify a clear principle that describes all the cases in which student speech can be suppressed, it can identify a clear counter-principle: the right to freely state political and religious ideas is protected. Tinker v. Des Moines Independent Community School District is an essential protection for such high-value speech, and all subsequent cases in the Supreme Court appear to reaffirm this core holding of Tinker.

The Court’s public-forum doctrine is no substitute for Tinker; public-forum doctrine would permit even-handed suppression of broad categories of speech. The school’s “basic educational mission” standard, unless carefully defined and limited in ways the school did not even attempt, would eliminate even the requirement of viewpoint neutrality and substantially repeal the Free Speech Clause in public schools.



A Self-Inflicted Wound: A Half-Dozen Years of Turmoil
Over the Guantánamo Military Commissions

David Glazier

12 Lewis & Clark L. Rev. 131 (2008)

President Bush’s November 2001 decision to try suspected terrorists by military commissions provoked immediate controversy that continues to the present day. The dispute is fueled by the adoption of judicial shortcuts unjustified by either historic practice or accepted legal principles. Commission rules are based on policy decisions rather than any higher law, and proceedings are largely ad-libbed. The right to choice of counsel and other benefits accorded the accused depend on nationality, mocking the concept of equal protection. Defendants are seriously disadvantaged in terms of resources and access to evidence. Most of the charges preferred are problematic as violations of the law of war. While the Military Commissions Act of 2006 did make some improvements, remaining defects, including the likelihood of convictions based on coerced testimony, will preclude trials from meriting approbation as “full and fair.” Convictions will be irreparably tainted, and many of these problems would now follow a shift to either courts-martial or proposed national security courts. If the goal is to incapacitate identified enemies, then a straightforward preventive detention regime complying with the law of war would be a sounder approach. If it is desired to stigmatize defendants with a criminal conviction, justifying penal incarceration or even execution, then trials in regular federal courts are the best option.



Damage Control: Two Proposals to Limit the Reach
and Effect of Oregon’s Wrongful Discharge Tort

John B. Dudrey

12 Lewis & Clark L. Rev. 205 (2008)

The wrongful discharge tort is still a fairly new player on the employee rights legal scene. Generally speaking, the tort allows a discharged employee to sue his or her employer when the discharge violates public policy. Often, but not always, the public policy is expressed in a constitution, statute, regulation, or other source of law. This Comment offers a brief history of Oregon’s version of the wrongful discharge tort, then proposes that the Oregon Supreme Court and the Oregon Legislature each make an important change to the law that would narrow the tort’s application. First, the Oregon Supreme Court should clarify the method by which employees can identify a public policy in legal text. Second, the Oregon Legislature should amend several of its employee rights statutes to preclude application of the tort where the employee has statutory equitable remedies. Ultimately, the author concludes that Oregon’s wrongful discharge tort is worth preserving, but on more limited terms than current law provides.

Quieting Disruption: The Mistake of Curtailing Public
Employees’ Free Speech under Garcetti v. Ceballos

Christie S. Totten

12 Lewis & Clark L. Rev. 233 (2008)

This Note critiques the United States Supreme Court’s 2006 decision in Garcetti v. Ceballos, which restricted public employees’ free speech rights. Building on more than fifty years of jurisprudence, the Court created a new threshold test denying First Amendment protection for speech made pursuant to duties. The author argues that this new rule creates more problems than it solves. The flaws in the Court’s reasoning include suggesting its formulation be a per se rule, trapping employees in a winless corner, and vaguely directing employers to not respond to the pursuant-to-duties formulation by writing very broad job descriptions. The Note suggests several ways to refine the Court’s inquiry to better protect both employees’ jobs and society’s interest in hearing what public employees have to say.

Corporate Responsibility and State False Claims Acts:
Evaluating the Use of Qui Tam Proceedings to Revoke
the Charters of Corporate Polluters

Ryan C. Drake

12 Lewis & Clark L. Rev. 267 (2008)

This Comment examines the use of qui tam proceedings by whistleblowers to obtain standing to request corporate dissolution for environmental crimes. While many commentators have examined the revival of corporate charter revocation as a way to attack repeat environmental offenders, few have examined how a qui tam proceeding may create standing for a whistleblower by allowing the whistleblower to step into the shoes of a state attorney general reluctant to bring a corporate charter revocation proceeding.

The author first examines the history of charter revocation in the United States, including why many modern environmentalists argue for its re-emergence. Looking at current roadblocks facing activist citizens who bring charter revocation petitions, the author analyzes whether a new strategy—using state false claims acts or “whistleblower” statutes—may offer an alternate path for such petitions. Due to problematic standing requirements, citizens have so far been unsuccessful; however, in light of a recent Supreme Court decision, this strategy could prove useful to overcome current bars to the courthouse door.

Tracing how false claims act statutes could work hand in hand with charter revocation in the environmental fraud context, the Comment then looks to Delaware and California as models for attempting the new approach of using a statutorily defined and protected whistleblower to “stand in the shoes” of an attorney general who is pressured to ignore repeat environmental offenders for political and economic considerations. While setbacks include potentially large costs to the plaintiff, a reluctant judiciary, and increased complexity in an already difficult prosecutorial environment, plaintiffs may still be attracted by the potential of a large share in the government’s recovery in a qui tam proceeding. The Comment concludes that while the idea is novel, and case law on the issue is sparse, the increasing number of states adopting greater qui tam provisions provides hope to concerned citizens frustrated with the current prosecutorial environment.

Fiat Taxation and the Elimination of the
Federal Reserve and Income Tax

Jesse Cowell

12 Lewis & Clark L. Rev. 295 (2008)

The Federal Income Tax is a needless drain on American society. This Comment proposes that we revolutionize our tax scheme and replace the Income Tax with a “fiat” taxation system. Recognizing the deeply ingrained tradition of the Federal Reserve and the Federal Income Tax itself, the author first explores the history and policy behind these institutions. Ultimately, as tradition alone proves an insufficient justification for maintaining our flawed system, the author proposes a less burdensome solution. Under the proposed system, Congress would eliminate the Federal Reserve and take back its power to regulate coinage. Rather than printing money, dispersing it to the public, and asking for it back, Congress (through its appointed committees or agencies) would simply keep the portion of currency necessary for the federal budget and disperse the rest. The superfluous middlemen—the IRS and the Federal Reserve—would be eliminated from the system, with incredible public benefit.

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