The Supreme Court: Hearing "Bong Hits" and Holding Two?
Apparently, the Supreme Court is holding two additional student speech cases for remand after the high court issues its decision in the “Bong Hits 4 Jesus” case, Morse v. Frederick, which the Supreme Court will hear oral arguments on March 19. Frequently, the Supreme Court will grant review in one case from a cluster appealed to it that present similar legal questions. The Supreme Court decides the one case it has selected then it will “grant, vacate and remand” the other cases it has been holding so the lower courts can review their decisions in light of the new decision from the Supreme Court. The Supreme Court personnel call that “GVR’ing” a case. That seems to be happening here.
Yesterday, ADF’s student speech case, Harper v. Poway Unified School District, did not appear on the orders list, although it was considered by the justices last Friday. This is the case about the student from southern California who was punished for wearing to his public school a homemade T-shirt that read, “homosexuality is shameful.” The Ninth Circuit upheld the school’s censorship in a terrible decision
A case from the Second Circuit, Marineau v. Guiles, has also dropped off the Supreme Court orders list after being considered by the justices. This case involved a student at a Vermont public school who wore a T-shirt critical of President Bush calling him a drunk driver, cocaine user and other unsavory slurs. The Second Circuit ruled in favor of the student, finding the school district’s actions violated the student’s First Amendment rights.
Now, it is not absolutely certain that the Supreme Court is holding these two cases for remands after the Frederick v. Morse decision comes down. The Supreme Court does not announce its intentions. However, these are the signature procedural maneuverings that usually indicate that the high court is holding these two cases for remand after the Bong Hits opinion comes down.
In my opinion, the Supreme Court should have granted review in Harper or Marineau, maybe both, to decide the student free speech questions. In both of those cases, the students were advocating substantive viewpoints that the school opposed and censored. The Bong Hits case is an inferior vehicle to resolve the question of student free speech rights on a public school campus because the student’s speech in question did not occur on campus. He unfurled the “Bong Hits 4 Jesus” banner on a street in Juneau, Alaska as runners holding the Olympic torch ran by. Also, the student in Bong Hits was not advocating a substantive viewpoint, but was pulling an immature prank (what does “Bong Hits 4 Jesus” mean? It’s incoherent and intended to be funny, not serious). Nonetheless, that is the case the justices have selected to decide the student speech issues. Stay tuned.