'BONG HiTS 4 JESUS' Teaches Two Roads Not Taken

December 30, 2010
Education Policy

By James C. Foster, a professor of political science at Oregon State University-Cascades.
When Joseph Frederick and his thirteen buddies hoisted their now (in)famous banner at the moment the 2002 Winter Olympic Torch Relay passed Juneau-Douglas High School, their stunt - and Principal Deborah Morse's reaction - set in motion a controversy that eventually reverberated all the way to the U.S. Supreme Court (SCOTUS). The outcome was what I term the "messy Morse" decision. The nine Justices wrote five separate opinions. The slim majority itself is deeply fragmented being, in effect, a 2-1-2 mélange ranging from Justices Alito's and Kennedy's wary concurrence, to Justice Thomas' belligerent rejection of Tinker v. Des Moines, with only Chief Justice Roberts and Justice Scalia embracing an unvarnished "drug speech exception" to secondary school students' First Amendment rights.

The January 24, 2002 incident on Glacier Avenue did not have to come to this pass. Among the insights I garnered from researching, thinking about, and writing my book on what blew up into "a perfect constitutional storm in Alaska's Capital," I want to highlight two here. Perhaps these are better described as lessons learned. First, in the event, when push came to litigating, Alaska state courts would have been the preferable venue in which Frederick could have contested his claims (under Article I § Five of the Alaska Constitution). Second, and fundamentally, push need not have come to litigating at all.

The incident on Glacier Avenue, and its aftermath, is an object lesson in the unfortunate consequences of our pervasive tendency to look first (often exclusively) to SCOTUS. When it comes to seeking to vindicate one's constitutional complaint, The Supremes sing a siren song. We should know better than to be so easily seduced. At least since 1983, when SCOTUS handed down Michigan v. Long, the heart of judicial federalism has beaten to the healthy rhythm of the "independent and adequate state grounds" doctrine.

Earlier still, twenty-two years before Long, in 1961, Justice William J. Brennan, Jr. delivered the first of his two James Madison Lectures at New York University School of Law (William J. Brennan, Jr., "The Bill of Rights and the States," N.Y.U.L.R. 36 (1961): 761). As he spoke, SCOTUS stood on the brink of its selective incorporation decisions that affected the Due Process Revolution. Those decisions, observed Justice Brennan during his second James Madison Lecture, had the result that "[m]ost Americans have come to think of the Bill of Rights as the source of their liberties" (William J. Brennan, Jr., "The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights," N.Y.U L.R. 61 (October 1986): 546). From his vantage point on the cusp of the Rehnquist Court, Justice Brennan cautioned: "For a decade now, I have felt certain that the Court's contraction of federal rights and remedies on grounds of federalism should be interpreted as a plain invitation to state courts to step into the breach. In the 1960s, the ‘understandable enthusiasm that championed the application of the Bill of Rights to the states . . . contribute[d] to the disparagement of other rights retained by the people, namely state constitutional rights' " (ibid, 548, quoting Ronald K.L. Collins, "Reliance on State Constitutions," in Developments in State Constitutional Law, Bradley D. McGraw ed. (St. Paul, MN: West, 1985).

For readers interested in a further cautionary tale, and an instructive, mightily engaging, alternative take on vindicating constitutional rights, I recommend, respectively: Stephen L. Wasby, "The Road Not Taken: Judicial Federalism, Student Athletes, and Drugs;" Walfred H. Peterson, Dormitory Drug Dens and Due Process: The Law of Search in the Federal System.

My final chapter is titled, "Lost Opportunities and Failure of Imagination." Joseph Frederick's and Deborah Morse's decisive failure is a shared inability to work through their misunderstandings, their checkered history, lines etched, and egos ascendant, to communicate with one another. I term their shared trap the "Rashomon effect": "By pridefully locking ourselves into our self-created roles, we miss an opportunity, likely to surprise each of us as much as it would others, of acting uncharacteristically." Tall order, under ordinary circumstances; apparently impossibly so for my protagonists. And yet, as I ask in my closing paragraph: "[W]hat if Deborah Morse and Joe Frederick had managed to empathize with, instead of rubricizing, each other?" I am posing no mere rhetorical, nor trivial, question. Indeed, my question is animated by the vital ethos of the First Amendment, the letter of which Frederick and Morse so hotly contested. Had they devoted energy to living out the promise and the peril of free speech, instead of litigating its formal contours, Joe and Deb could have lived out the six years and ten months between the end of January 2002 and the beginning of November 2008 without being locked into fussin' and fightin'. Had they schooled each other in speaking freely, there would have been no need for my book about yet another exception to high school students' speech rights.