« Hasen on Campaign Finance Deregulation | Main | Meet the Roberts Court »

Tuesday, June 26, 2007

Billions for Bong Hits

The play of concurrences and dissents in the Morse case presents an analytic feast that will no doubt keep many 1st Amendment scribes busy this summer.  Nobody, however, should miss the stark reality about American government enshrined in the very heart of the Chief's majority opinion and saluted by all others, the war on crime (and its key federal component, the war on drugs) have reshaped the very meaning of education in America. 

Like  Board of  Ed.  of  Independent  School  Dist.  No.  92  of  Pottawatomie Cty. v. Earls, 536 U. S. 822, 829-830 (2002), Morse is ultimately as much a case about the level of official hysteria about drugs (and especially marijuana) in America, as it is about any particular clause of the constitution.

Chief Justice Robert's reminds us that illegal drugs have a unique status in American public education.

Even more to the point, these cases also recognize that
deterring drug use by schoolchildren is an “important—
indeed, perhaps compelling” interest....

Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs, Brief for United States as Amicus Curiae 1, and required that schools receiving federal funds under the Safe and Drug-Free Schools and
Communities Act of 1994 certify that their drug prevention

programs “convey a clear and consistent message that
. . . the illegal use of drugs [is] wrong and harmful.” 20
U. S. C. §7114(d)(6) (2000 ed., Supp. IV).
Thousands of school boards throughout the country—
including JDHS—have adopted policies aimed at effectuating...

Thousands of school boards throughout the country—
including JDHS—have adopted policies aimed at effectuating
this message. See Pet. for Cert. 17–21. Those school
boards know that peer pressure is perhaps “the single
most important factor leading schoolchildren to take
drugs,” and that students are more likely to use drugs
when the norms in school appear to tolerate such behavior.
Earls, supra, at 840 (BREYER, J., concurring). Student
speech celebrating illegal drug use at a school event,
in the presence of school administrators and teachers,
thus poses a particular challenge for school officials working
to protect those entrusted to their care from the dangers of drug abuse.

Despite billions of dollars in federal messaging on drugs dutifully passed on by financially strapped school administrators (and worried about constantly by high school principals like Deborah Morse) this federal crusade has apparently had virtually no impact on the behavior of American high school students.  Chief Justice Roberts cites federal studies showing "About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Id.,  at 99. Nearly one in four 12th graders has used an illicit drug in the past month. Id., at 101. Some 25% of high schoolers say that they have been offered, sold, or given an illegal drug on school property within the past year." 

But billions of wasted tax dollars is par for the course, more alarming is that the very purpose of education has been changed to make repression of illicit drug use a core part of the educational mission of schools.  This is governing through crime and the damage it is doing to our core institutions from schools to our constitution is one lesson from Morse et. al. v. Frederick (2007).

Posted by Jonathan Simon on June 26, 2007 at 10:24 AM in Constitutional thoughts | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Billions for Bong Hits:

» Won't Somebody Think of the Children! from The Debate Link
They treat us like idiots and then expect us to learn. This, in a nutshell, is the paradox of the modern American educational system. But the big daddy, of course, was Morse v. Fredrick--the infamous "BONG HiTS FOR JESUS" case. The annals of Ameri... [Read More]

Tracked on Jun 26, 2007 11:43:58 AM

» Round-Up: Yesterday's Opinions from SCOTUSblog
Today, NPR's Nina Totenberg had this piece on "Morning Edition" discussing yesterday's 5-4 rulings and the "deeply divided" High Court. Totenberg also has this story on the three cases related to the First Amendment that were decided yesterday; Profess... [Read More]

Tracked on Jun 26, 2007 6:42:58 PM


Well put, Jonathan. It's almost as if the Court channeled Salvor Hardin (the mayor of Terminus, in Asimov's Foundation novels) dyslexically: "Never let what is right prevent you from doing your sense of morals!"

Posted by: dissenter | Jun 30, 2007 7:50:25 AM

The damage lies precisely in the power of the war on drugs to free the Justices from the obligation to make sense of doctrine. The evil of drugs, at least for school children, is deemed so complete, that government measures against it pass without real scrutiny. Recall Holmes' famous quip in his Lochner dissent that the majority was treating the constitution as if it included Herbert Spencer's theories of social dynamics. Today's Court treats the Constitution as if William Bennett's theories of the war on drugs were included there.

Posted by: Jonathan Simon | Jun 29, 2007 1:50:02 AM

On what basis do you allege that the war on drugs is doing "damage" to the constitution?

As Justices Breyer and Thomas point out, the court's free speech precedents, particularly those in the school area are ad hoc and unprincipled generally. The fact that the pattern continues here is not the fault of the war on drugs.

Posted by: clerk | Jun 27, 2007 1:08:21 PM

It just seems that the debate about what the message of "BH4J" actually means answers the ultimate question of whether the speech is protected. It's suggestive, in many ways like porn, but really, overall, message-less. In a way, it's rhetorical art.

Frankly, I thought it was using "Jesus" that would have derailed the banner and not the fact that "Jesus" was accused of having a hand in the outcome of the drug war. I could see, "Bong Hits for High School Students," or, "Bong Hits for Joseph Smith."

Or was it onomatopoeia (i.e., a "high" version of the "gong" show), celebrating the life of COL ("Christ Our Lord")?

Posted by: Jeff | Jun 26, 2007 10:03:10 PM

The comments to this entry are closed.