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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed. A popular bumper sticker poses the question, “What would Jesus do?” When an Alaska high school student unrolled a banner explaining what he would do for Jesus, his answer � “BONG HITS 4 JESUS” � earned him a 10-day suspension. But unlike most students, he took his suspension to court, and on appeal, the U.S. Court of Appeals for the 9th Circuit held that the suspension violated the student’s First Amendment rights. In its private conference on October 27, the Court will consider whether to grant certiorari in No. 06-278, Juneau School Board v. Frederick, and revisit its case law dealing with the regulation of student speech. In January 2002, the Olympic torch relay passed through Juneau, Alaska, on its way to the 2002 Winter Games in Salt Lake City. Students at Juneau-Douglas High School were permitted to leave class to watch the relay, which passed by the school while it was in session. Eighteen-year-old Joseph Frederick was absent from his classes before the relay. As the torch neared the school, however, Frederick was standing on the sidewalk across from the campus, where he and several friends unfurled a large banner bearing the phrase “BONG HITS 4 JESUS.” (“Bong,” the petition explains helpfully, is “a slang term for drug paraphernalia commonly used for smoking marijuana.”) After he declined a request from Principal Linda Morse to take down the banner � arguing that he was not on the school’s campus and invoking his First Amendment rights � Frederick was suspended for 10 days. After unsuccessful appeals to the school’s superintendent and School Board, Frederick filed a suit in federal court against Morse and the School Board. The district court held that neither defendant had violated Frederick’s First Amendment rights and granted their motion for summary judgment. On appeal, the 9th Circuit unanimously reversed. Relying on Tinker v. Des Moines Independent Community School District (1969), in which the Supreme Court upheld a student’s right to wear an anti-war armband, the panel held that Frederick could not be punished because school officials could not show that the banner caused disruption to the school’s educational function. The other two cases in the “trilogy” of Supreme Court decisions addressing the First Amendment rights of public high school students were, according to the panel, irrelevant: Bethel School District No. 403 v. Fraser (1986), upholding the punishment of a student who gave a sexually suggestive speech at a school assembly, applied only to speech of a “sexual nature,” and Hazelwood School District v. Kuhlmeier (1987), upholding a school’s right to not publish controversial articles in a school-funded student newspaper, applied only to cases (unlike Frederick’s) involving school-sponsored speech. And Morse was not entitled to qualified immunity because, in the panel’s view, her actions had violated Frederick’s “clearly established rights.” Represented by former Solicitor General and Independent Counsel Kenneth Starr, Morse and the School Board urge the Supreme Court to grant certiorari to clear up the “doctrinal fog infecting student speech jurisprudence.” They explain that although courts have “wrestled with the Tinker-Fraser-Kuhlmeier trilogy” in considering pro-drug messages in schools, prior decisions had at least “reached a bottom-line consensus” that restrictions on such messages were constitutional. The 9th Circuit’s decision, they warn, not only upsets that consensus but will, in fact, “eviscerate” similar anti-drug policies nationwide unless schools can show “substantial and material disruption to school operations.” The school officials also urge the Court to either summarily reverse or grant certiorari to review the 9th Circuit’s holding that Principal Linda Morse was not entitled to qualified immunity. First, they contend that because the panel conceded that there was “no 9th Circuit authority precisely on point,” Frederick’s right to display the banner could not have been “clearly established” � particularly when all prior cases have upheld restrictions on student speech promoting illegal drugs. Second, the school officials say that, in holding that a reasonable public official would be aware of the illegality of her conduct for the very reason that the right was clearly established, the panel upended the Supreme Court’s admonition in Saucier v. Katz that the “dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Opposing certiorari, Frederick depicts his case as both fundamentally different from the one described in the petition and a “unique factual setting that is not likely to recur.” Represented by Douglas Mertz of Juneau, he emphasizes that the torch relay was not school-sponsored; that he had not stepped on school property at all before unfurling the banner; that “BONG HITS 4 JESUS” was intended to be � and was regarded as � purely a humorous message; and that the unfurling of the banner did not cause any disruption. Based on these facts, he concludes, his case “does not present the issue of school authority over student expressions on campus or in a school-sponsored activity.” Moreover, any consensus regarding a school’s ability to regulate drug references weighs in his favor, not the School Board’s: Courts of appeals have consistently rejected efforts to regulate such references, while none of the district court cases cited by the school officials as upholding regulation involved off-campus speech. Far from being the outlier portrayed in the petition, the 9th Circuit’s holding in this case is actually “consistent with decades of established law.” And in any event, the facts of the case are so “idiosyncratic” that the case is neither an appropriate vehicle for Supreme Court review nor � contrary to the school officials’ assertion � likely to jeopardize schools’ existing anti-drug policies. Finally, Frederick argues that the 9th Circuit’s holding that Linda Morse was not entitled to qualified immunity was similarly a “straightforward” application of Supreme Court precedent. Review is not warranted, he concludes, simply because the school officials disagree with the outcome of that application. � Amy Howe

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