Isn't "Bong Hits 4 Jesus" fun to say?

You've probably heard ten times this week about Morse v. Frederick, just argued before the Supremes. It's perceived by many as being a silly case -- and certainly, a case involving a real message rather than a meaningless stunt might've made a nicer vehicle for the legal issues at stake. But "Bong Hits" is what we've got, and it's important.

What intrigues me, however, is that Morse seems such a perfect companion to Harper v. Poway Unified School District, which the Court will be hearing later this term. Poway, which I've mentioned before, concerns a student disciplined for wearing a vitriolic anti-gay t-shirt. And the two cases provide the opportunity for some much-needed clarity on the twin aspects of the landmark Tinker v. Des Moines decision, which established that First Amendment rights don't stop "at the schoolhouse door." Tinker contemplated two permissible grounds for limiting student speech: disruptions to the school's educational function, and interference with the rights of others. The Ninth Circuit controversially upheld the Poway school's action based on the rights-of-others prong; the same court held for the student in Morse because the school had failed to meet the disruption prong.

The rights-of-others prong has pretty much lain dormant all these years; whether you agree with the Ninth Circuit's holding or not, it's about time to get some guidance on what it means. By contrast, the disruption prong has been very much alive, inasmuch as school administrators are always using it -- and getting sued over it. The general public perception, and that of administrators (of course), has been that the reach of the disruption prong is very broad indeed -- so much so that a lot of folks are surprised to hear that students have First Amendment rights at school at all. Too broad a view of the disruption prong pretty well eviscerates Tinker, but defining the reach of either prong is bound to bedevil the Court.

While many take the same side (student or school) in both cases -- including, interestingly, social conservative groups, to whom student speech is increasingly important in relation to anti-abortion and anti-gay messages -- I think the relevant facts and (in some respects) the relevant principles are quite different, and thus the results should differ. (For one thing, both the room for abuse and the inclination to abuse seem to me much greater with the disruption rationale.) In any event, when these decisions come down one will want to read them in conjunction, I think, to fully assess the legacy of Tinker. Assuming you haven't had too many bong hits with Jesus.