Barbarians at the Gate
This has the potential to be really nasty. Way back in 2002, a student at a high school in Alaska held up a sign that said "Bong Hits 4 Jesus" to TV cameras at an Olympic Torch Relay. The sign was confiscated and the student suspended from school for - get this - "advocating drug use," which is "contrary to the mission of the school." In other words, forget that pesky First Amendment thingee (whatever WERE the Founding Fathers thinking?) - the student was expressing an opinion the school disapproves of.
Now, by all rights this should be a no-brainer for the courts. Given the fairly clear ruling in Tinker v. Des Moines, students have speech rights too, even if the school doesn't approve of what they're saying (in Tinker the students in question were wearing black armbands to protest the Vietnam War), so long as what they're doing isn't disruptive. So, obviously, wearing a shirt that says "I hate niggers" is not protected free speech in school (since it will be hard for a lot of people to pay attention to the lesson with that sort of thing around), but wearing a T-shirt that says "Impeach Bush" should be fine (because that's the kind of opinion that one can discuss rationally with people who disagree with it). Where "Bong Hits 4 Jesus" falls on that scale is anyone's guess. I would be inclined to say it's disruptive (especially since in this case it was a 14-ft. banner!). But here's the clincher (for me): the students weren't at school.
Admittedly, it was during regular school hours. Classes had been dismissed so that students could watch the parade. Nevertheless, this wasn't exactly a field trip. So what this boils down to for me is this: are schools allowed to control student speech even when they're not at school? Obviously - and I mean abosolutely clear-as-day, not a doubtful cloud in the sky obviously, schools should not have this power. Once a student leaves campus, the school loses its ability to regulate his speech. Period.
All other things being equal, I think most sensible people would agree with what I just said. But all other things are not equal, and that is because "drugs" are involved.
I don't know what short-circuited in our otherwise generally-freer-than-most country where "drugs" are concerned, but man, people get away with doozies in the name of fighting the so-called "War on Drugs." And I've been putting "drugs" in shock quotes because this is MARIJUANA we're talking about. As in - no sane person who's had an honest look at the evidence could possibly believe that marijuana is a threat to public order. Basically - marijuana is a harmless, non-addictive, generally fun thing to do. True - there are some health problems associated with long-term use, but this is equally true of cigarettes and alcohol (and in fact alcohol is almost certainly worse for you in the long term). I defy anyone to give me even a single rational reason why pot should be illegal. (No - the "gateway drug" theory won't work. Marijuana is only a "gateway drug" because it's illegal. That is, it's a fairly harmless thing to do, and yet, once you've done it, you're already a "user," so you might as well... etc.)
But even if marijuana were harmful, it's still a fact (or should be) that schools don't have the right to regulate speech that happens off campus for any reason. And yet, "Justice" Breyer has the following to say:
But Justice Stephen Breyer said, "If kids go around having banners making a joke out of drug use, that really does make it a little tougher for me to convince the students at this school not to use drugs."
Well no shit, there, Sherlock! But it isn't your job to make the school's job as easy as it possibly can be. Your job, in case you've forgotten, is to clarify the law. Nowhere in the Constitution that I'm aware of does it say "of course, the rights enumerated herein really don't apply in cases where they might make a teacher's job somewhat more difficult." Nor, more to the point, does anything in the Tinker decision say that. In fact, the Tinker decision (which I'm starting to wonder whether Breyer has read?) pretty clearly says that students can express opinions even if these opinions make the school's job somewhat more difficult. What Tinker essentially said was twofold. First (not really relevant here), that symbolic expression (i.e. wearing armbands) is also protected speech and second that the content of an opinion alone is not sufficient to make it "disruptive."
We don't have a ruling yet (it should come very soon) - but I'm starting to get a creepy feeling about this. Rights are rights are rights, people. They're not properly "rights" if you only protect them when convenient. What we have here, really, is another example of the national paranoia about drug use getting in the way of what should be a really cut-and-dried case. The principal who suspended the student overstepped her bounds violated his Constitutional rights - end of story. This would be true even if the sign had been about heroin. The fact that it's about marijuana, of all things, just puts a finer point on it. What sharpens the point to positively piercing is that marijuana was deciminalized in Alaska at the time anyway. So honestly - how did this make it all the way to the Supreme Court? It should have been laughed out of the system within minutes of coming to bar.