Morse v. Frederick's New Perspective on Schools' Basic Educational Missions and the Implications for Gay-Straight Alliance First Amendment Jurisprudence


MORSE V. FREDERICKS NEW PERSPECTIVE
ON SCHOOLS' BASIC EDUCATIONAL
MISSIONS AND THE IMPLICATIONS FOR
GAY-STRAIGHT ALLIANCE FIRST
AMENDMENT JURISPRUDENCE

JORDAN BLAIR WOODS*

Consider two eleventh grade students, Michael and Anna, who
attend public high school in a suburban town. The high school has
approximately 1,000 students and enforces an abstinence policy banning
any discussion of sexual activity. Two years ago, Michael and Anna were
the high school's first students to openly identify as gay and lesbian. Now
over twenty students openly identify as gay, lesbian, bisexual, transgender,
or queer (LGBTQ). Recently, Michael and Anna discussed the growing
interest among LGBTQ students and allies to form a gay-straight alliance
(GSA) with one of their teachers. The teacher agreed to advise the GSA and
filed a petition to the Board of Education to create the student group. The
GSA's mission was to provide students with a safe space at school to
discuss anti-LGBTQ harassment and work together to promote tolerance
and acceptance regardless of sexual orientation and gender identity. The
Board of Education denied the GSA's petition, claiming that allowing a
"sex-based" group to meet on school grounds would violate the school's
abstinence policy and thus interfere with the school's educational mission.

This hypothetical is not uncommon. LGBTQ youth are becoming
more open about their sexual orientations and gender identities, which has
resulted in more efforts by students to form student groups to discuss issues
surrounding sexual orientation and gender identity, and in turn greater
resistance to the formation of GSAs from school districts that oppose them.'

LGBTQ students usually contend that GSA prohibitions violate their rights

* J.D., UCLA School of Law, 2009; A.B., Harvard College, 2006. Thanks to

Professor Adam Winker for his guidance and encouragement. I also greatly appreciate the
suggestions and feedback from Professor Douglas NeJaime and Professor Stuart Biegel.
Finally, thanks to the editors and staff of the Columbia Journal of Gender and Law for their
hard work and revisions.

1 See infra note 21 and accompanying text.



282 Columbia Journal of Gender and Law [Vol. 18:1

under the Federal Equal Access Act 2 (EAA) and the First Amendment. 3

Despite being presented with both EAA and First Amendment claims, most
courts have avoided the First Amendment issue and resolved the cases
solely on equal access grounds.4 This avoidance has created uncertainty
with regard to the level of protection that the First Amendment affords
students to form GSAs in public schools. As this uncertainty lingers, school
districts become increasingly clever in creating their student organizations'

2 Education for Economic Security (Equal Access) Act, 20 U.S.C. §§ 4071-74
(1984) (prohibiting school districts from denying religious student organizations the same
access to school facilities and resources as other extracurricular student organizations). The
operative rule of the EAA, however, extends to both non-religious and religious student
organizations:

It shall be unlawful for any public secondary school which receives
Federal financial assistance and which has a limited open forum to deny
equal access or a fair opportunity to, or discriminate against, any
students who wish to conduct a meeting within that limited open forum
on the basis of the religious, political, philosophical, or other content of
the speech at such meetings.

20 U.S.C. § 407 1(a).

3 U.S. CONST. amend. I; see, e.g., Caudillo v. Lubbock Indep. Sch. Dist., 311 F.
Supp. 2d 550 (N.D. Tex. 2004) (alleging that a school district violated the Equal Access Act
and the First Amendment when it prohibited a GSA from meeting on school grounds); East
High Gay/Straight Alliance v. Bd. of Educ. of Salt Lake City, 81 F. Supp. 2d 1166 (C.D.
Utah 1999) (alleging that a school district violated the Equal Access Act and the First
Amendment when it prohibited a GSA from meeting on school grounds); see also Eric W.
Schulze, Gay-Related Student Groups and the Equal Access Act, 196 EDUC. L. REP. 369, at
*7 (2005). ("If the school only allows curriculum related student groups to meet, then the
EAA will not apply. Nevertheless, that does not mean that the students have no other
recourse and the GSA may be denied equal treatment to other student groups with impunity.

[I]n addition to the EAA claim, student groups denied the right to meet at school
typically plead a violation of their First Amendment rights to freedom of speech.").

4 See, e.g., Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1149 (C.D.
Cal. 2000) ("In finding that the District has likely violated the Equal Access Act, the Court
need not reach Plaintiffs' First Amendment claim."); Boyd County High Sch. Gay Straight
Alliance v. Bd. of Educ. of Boyd County, 258 F. Supp. 2d 667, 691 (E.D. Ky. 2003) ("Since
the Court has found that Defendants likely violated the Equal Access Act, the Court need not
at this time address ... Plaintiffs' First Amendment claim ... for purposes of the pending
motion."); White County High Sch. Peers Rising in Diverse Educ. v. White County Sch.
Dist., No. 2:06-CV-29-WCO, 2006 WL 1991990, at *12 (N.D. Ga. July 14, 2006)
("Plaintiffs have also asserted that defendants' actions violate plaintiffs' right to expressive
association under the federal and state constitutions. The court has already found that
defendants' denial of equal access to PRIDE based on the content of its speech violates the
EAA. Having reached this determination, it is unnecessary for the court to address plaintiffs'
constitutional claims for purpose of the pending motion.").



2008] Morse v. Frederick's New Perspective 283

policies in ways that avoid triggering the EAA.5 Since the only alternative
federal means of relief is under the First Amendment, the need for a
clarification of the protection that the First Amendment affords students to
form GSAs is particularly urgent.

To date, only the United States District Court for the Southern
District of Florida has addressed how the United States Supreme Court's
recent decision in Morse v. Frederick6 affects the First Amendment analysis
in GSA litigation.7 In Morse, the Supreme Court adopted a new rule
permitting schools to limit student expression that is "reasonably viewed as
promoting illegal drug use." 8 The district court in Gonzalez v. School Board
of Okeechobee County, held that Morse did not apply to GSA First
Amendment claims because a "GSA's intent to gain recognition as a
noncurricular student group is entirely dissimilar from the advocation of
illegal drug use."9

5 See, e.g. East High Gay/Straight Alliance, 81 F. Supp. 2d at 1166. In East High
Gay/Straight Alliance, the school district attempted to avoid the EAA by not permitting any
student group or organization not directly related to the curriculum to organize or meet on
school property. The school board's policy provided, "[i]t is the express decision of the
Board of Education of Salt Lake City School District not to allow a 'limited open forum' as
that is defined by the Federal Equal Access Act, 20 U.S.C. § 4071." Id. at 1168. See also
Dena S. Davis, Religious Clubs in the Public Schools: What Happened After Mergens?, 64
ALB. L. REV. 225, 234 (2000) ("After Mergens, a number of school districts went to
considerable trouble attempting to avoid complying with the Equal Access Act."). See
generally, Carolyn Pratt, Protecting the Marketplace of Ideas in the Classroom: Why the
Equal Access Act and the First Amendment Require the Recognition of Gay/Straight
Alliances in America's Public Schools, 5 FIRST AMENDMENT L. REV. 370 (2007).

6 Morse v. Frederick, 127 S. Ct. 2618 (2007).

7 Gonzalez v. Sch. Bd. Of Okeechobee County, 571 F. Supp. 2d 1257, 1269 (S.D.
Fla. 2008).

8 See Morse, 127 S. Ct. at 2629. During the Morse litigation, LGBTQ advocates
feared that if the Court had granted schools broad discretion to limit any student speech that
ran contrary to their basic educational missions, then schools would be permitted to limit
GSA meetings by adopting policies that treated GSAs as contrary to their self-defined
educational missions. See Brief for Lambda Legal Def. & Educ. Fund, Inc. as Amicus Curiae
Supporting Respondent at *24, Morse, 127 S. Ct. 2618 (No. 06-278), 2007 WL 542415.

9 After analyzing the four prominent student free speech cases (Tinker v. Des
Moines Independent Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. v. Fraser, 478 U.S.
675 (1986); HazelwoodSch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); and Morse, 127 S. Ct.
2618), the district court held that only Tinker applied. The court reasoned that "the desire of
the GSA to meet as a group to discuss matters pertinent to the challenges presented by their
non-heterosexual identity and to build understanding and trust with other heterosexual
students sounds in the political speech addressed in Tinker." Gonzalez, 571 F. Supp. 2d at
1269.



284 Columbia Journal of Gender and Law [Vol. 18:1

At first glance, the court's conclusion in Gonzalez seems correct.
Recognizing GSAs and limiting speech advocating illegal drug use are two
completely different factual scenarios. Consequently, it is easy to overlook
the analogies between the two, which may prove important for advocates.
The purpose of this Article is to demonstrate that Morse v. Frederick could
alter the First Amendment analysis in GSA litigation to make it easier for
LGBTQ students to form GSAs under the First Amendment. Prior to
Morse, the Supreme Court increasingly deferred to schools' educational
missions, granting schools ever-greater authority to limit student speech.10

In Morse, however, the Court shifted its tone and harshly criticized the
notion that schools may limit student speech merely because they view it as
antithetical to their basic educational missions."

I argue that the Court's shift should be viewed as a rejection of the
basic educational mission argument. If broadly applied to other student
speech cases, including GSA litigation, this approach could serve as a new
constraint on schools' authority to limit student speech. Recently, schools
have prohibited GSAs by alleging that they violate their educational
missions.12 Therefore, interpreting Morse as a rejection of the basic
educational mission argument strengthens claims by LGBTQ students that
prohibitions of GSAs violate the First Amendment. This interpretation also
prevents schools from fashioning their self-defined educational missions to
exclude legitimate, LGBTQ-positive viewpoints on school grounds.

Since Morse is a relatively recent decision, its influence on student
speech litigation is unclear. Some scholars interpret Morse's holding as
limited to its facts.' 3 Other scholars criticize lower courts' recent extensions

10 Part II develops this proposition in more detail. This Article contends that in
Fraser and Kuhlmeier, the Supreme Court adopted two exceptions to the Tinker rule that
granted schools more authority to limit student speech that was (1) offensively lewd and
indecent or (2) school-sponsored. This Article posits that in both decisions, the Court
deferred to schools' basic educational missions, or their self-defined central tenets and
values, to limit these categories of student expression.

i1 See Morse, 127 S. Ct. at 2629. Part IV.C of this Article develops this point in
more detail.

12 See infra note 27.

13 See, e.g., Joseph Blocher, School Naming Rights and the First Amendment's

Perfect Storm, 96 GEO. L.J. 1, 47 (2007) ("The actual holding of [Morse] was quite narrow.
Invoking the importance of student safety, it upheld schools' power to limit speech that
reasonably appears to encourage illegal drug use, as opposed to advocating
decriminalization, or opposing the war on drugs, or any other social or political commentary.
The Court's decision did not appear to rest clearly on any of its previous three school speech
cases, but it did confirm that schools are a uniquely limited kind of limited public forum.").



2008] Morse v. Frederick's New Perspective 285

of Morse to limit student speech that is unrelated to promoting illegal drug
use. 1 4 Although Morse was not an optimal decision for free speech
advocates,1 5 this Article emphasizes the laudable aspects of Morse that are
being currently ignored.

Part I presents recent trends in GSA litigation and the three policy
models which have been adopted by school districts to ban GSAs. Part II
illustrates that prior to Morse the Supreme Court was progressively granting
schools more deference under the First Amendment to limit student
expression that violated their educational missions. 16 Originally, in Tinker v.
Des Moines Independent School District, the Supreme Court held that in
order to limit student speech schools had the high burden of showing that it
"materially and substantially interfere[s] with the requirements of
appropriate discipline in the operation of the school. 17 Later, in Bethel
School District No. 403 v. Fraser, the Court carved out an exception to this
rule, explicitly deferring to schools' basic educational missions to grant
schools greater authority to limit "lewd and obscene" student speech. 18
Similarly, in Hazelwood v. Kuhlmeier, the Supreme Court deferred to
schools' basic educational missions to grant schools greater authority to
limit school-sponsored speech.' 9

14 See Clay Calvert, Misuse and Abuse of Morse v. Frederick by Lower Courts:

Stretching the High Court's Ruling Too Far to Censor Student Expression, 32 SEATTLE U. L.
REV. 1 (2008).

15 The optimal result would have been for the Court to apply the rule adopted by
the Supreme Court in Tinker v. Des Moines Independent School District, 393 U.S. 503
(1969) rather than to carve out a new exception specific to promoting illegal drug use. The
Tinker rule only permits schools to limit student expression if it "materially and substantially
interfere[s] with the requirements of appropriate discipline in the operation of the school."
Id. at 509.

16 David L. Hudson & John E. Ferguson, The Courts' Inconsistent Treatment of

Bethel v. Fraser and the Curtailment of Student Rights, 36 J. MARSHALL L. REV. 181, 190
(2002) ("Two years after Fraser, the Supreme Court continued the trend of curtailing student
First Amendment rights when they decided a student press case-Hazelwood School District
v. Kuhlmeier."); Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at
the Schoolhouse Gates: What's Left of Tinker?, 48 DRAKE L. REV. 527, 535 (2000) ("[T]he
Supreme Court rulings subsequent to Tinker have almost all sided with school officials ....
In other words, the judicial deference model very much has replaced the speech protective
model in subsequent cases.").

17 393 U.S. 503, 509 (1969) (quoting Burnside v. Byars, 363 F.2d 744, 749
(1966)).

8 478 U.S. 675, 680 (1986).

'9 484 U.S. 260, 272-73 (1988).



Columbia Journal of Gender and Law

Part III illustrates that conflicting interpretations of Fraser and
Kuhlmeier have resulted in uncertainty for litigants over the level of
deference that these cases afford schools to limit student expression that
allegedly interferes with schools' basic educational missions. For example,
the school district in Morse interpreted Fraser and Kuhimeier as granting
schools broad discretion in identifying their educational missions and
limiting any expression that they felt disrupted those missions. 20 Despite the
Court's previous deference to schools' basic educational missions, the
Morse Court explicitly refused to grant schools broad discretion to limit
student speech that it viewed as contradicting their basic educational
missions. I posit that the Court now seems to be emphasizing objective
phenomena, such as laws and social trends, to determine whether schools
should be allowed to limit particular student speech. These phenomena are
independent of schools' subjective assessments of student speech and
biased definitions of their educational missions. This new emphasis on
objective factors could operate as a new restraint on the deference that
schools were previously afforded to limit student speech that violated their
basic educational missions.

Part IV extends this Article's interpretation of Morse to GSA First
Amendment jurisprudence. I contend that the Court's rejection of the basic
educational mission argument strengthens claims of LGBTQ students that
prohibiting GSAs violates the First Amendment. I reach this conclusion by
assessing how the Morse Court's rejection of the basic educational mission
argument affects the constitutional legitimacy of the three policy models
that schools have adopted to ban GSAs.

I. GAY-STRAIGHT ALLIANCES AS AN EMERGING ISSUE:
THREE POLICY BAN MODELS AND LITIGATION TRENDS

The presence of LGBTQ students in secondary schools is growing
as youths recognize and accept their sexual orientations and gender
identities at younger ages. 21 The increased number of LGBTQ youth has

20 Brief for Petitioner at *21-25, Morse v. Frederick, 127 S. Ct. 2618 (2007) (No.

06-278) 2007 WL 118979.

21 Camille Lee, The Impact of Belonging to a High School Gay/Straight Alliance,

85 HIGH SCH. J. 3, 13 (2002); see also Lambda Legal, Schools,
http://www.lambdalegal.org/our-work/issues/youth/schools (last visited Nov. 25, 2008) ("As
more and more youth at earlier ages recognize and accept their sexual orientation or gender
identity, their presence in schools has grown."); Ronald G. Russo, The Extent of Public
Education Nondiscrimination Policy Protections for Lesbian, Gay, Bisexual, and
Transgender Students: A National Study, 41 URn. EDUC. 115, 119 (2006) ("Throughout our
nation's public schools there is an ever-growing number of LGBT students 'coming out of

286 [Vol. 18:1



2008] Morse v. Frederick's New Perspective 287

influenced students to form GSAs in order to address the special needs of
LGBTQ students at school. The first public school GSA emerged in 1989.22
Now, over 4,000 GSAs exist in secondary schools throughout the United
States.23 The goals of GSAs include establishing safe spaces to talk about
previous anti-LGBTQ harassment and promoting tolerance and acceptance
on the basis of sexual orientation and gender identity at school.24

While the number of GSAs in secondary schools has increased,
school districts have adopted three types of policies to prevent LGBTQ
students from forming GSAs.25 First, some school districts have adopted
policies that prohibit student organizations from "engaging in any activity
contrary to law, School Board policy, and the adopted core values, or

the closet,' declaring their sexual orientations."). Researchers posit that this is attributable to
the greater visibility of the LGBTQ movement and young people's willingness to assert their
sexual orientations and gender identities at younger ages. See, e.g., Eric Rofes, Opening Up
the Classroom Closet: Responding to the Educational Needs of Gay and Lesbian Youth, 59
HARV. EDUC. REv. 444 (1989).

22 Gay, Lesbian, and Straight Education Network (GLSEN), Background and

Information about Gay-Straight Alliances, http://www.glsen.org/cgi-
bin/iowa/all/library/record/2336.html (last visited Nov. 9, 2008).

23 Id.

24 MELINDA MICELI, STANDING OUT, STANDING TOGETHER: THE SOCIAL AND

POLITICAL IMPACT OF GAY-STRAIGHT ALLIANCES 27 (2005) ("Gay-straight alliance clubs
emerged in schools out of the desire of lesbian, gay, bisexual and straight students to create a
more visible cultural and structural change that might improve the environment of fear,
intolerance, and discrimination of LGBT people in which all students existed."); see also,
e.g., La Jolla High School Gay-Straight Alliance, Mission Statement,
http://www.angelfire.com/super2/ljhsgsa/mission.html (last visited Dec. 29, 2008); Marell
Brooks, LHS Gay-Straight Alliance receives grant, THE LOMPOC RECORD, Feb. 10, 2006,
available at http://www.lompocrecord.com/articles/2006/02/l0/news/newsO8.txt ("[The
GSA's] mission is to promote equality and foster sensitivity about sexual orientation. The
club provides a safe and productive atmosphere in which members can positively contribute
to the school culture.").

25 A fourth type of policy ban not discussed in this paper prohibited teachers from
"encouraging, condoning or supporting illegal conduct." These laws prohibited GSAs in
schools on the grounds that homosexual sodomy was illegal by state law. See, e.g., James
Brooke, To Be Young, Gay and Going to High School in Utah, N.Y. TIMES, Feb. 28, 1996, at
B8; Jason B. McCreary, Getting Clubbed Over a Club, 4 J. CASES IN EDUC. LEADERSHIP 37
(2001). These policy bans are no longer legitimate after the Supreme Court's decision in
Lawrence v. Texas, 539 U.S. 558 (2003), which held criminal sodomy statutes
unconstitutional.



288 Columbia Journal of Gender and Law [Vol. 18:1

school rules."26 Under this policy model, schools maintain vast discretion to
define which student organizations are antithetical to their educational
missions, values, or policies. These school districts view GSAs as inimical
to school values, or, in schools that enforce abstinence policies, as
violations of school rules and policy. 27

Second, school districts have adopted policies that prohibit the
formation of clubs that are "sex based," "encourage or promote sexual
activity, ''2s or are "sexually oriented, gay/straight or otherwise." 29 These
school districts then contend that they may prohibit GSAs because the
organizations are predominantly rooted in the sexualities or sexual
orientations of student members. 30 For instance, the Okeechobee County
School Board of Okeechobee, Florida enacted a policy in October 2007
banning any club that is "sex-based or based upon any sexual grouping,

26 See Chesterfield County Public School, Community Briefing from the School

Board, at 3 (March 14, 2006), available at www.chesterfield.kl2.va.us/CCPS/schoolboard/
files/Boardclubpolicy.doc.

27 See id. The School Board of Chesterfield County, Virginia adopted such a policy

in 2006. Carrie Tyer, Letter to the Editor, Schools Need Not Allow Gay-Straight Alliance
Clubs, FREE LANCE-STAR, May 18, 2006, available at http://www.
fredericksburg.com/News/FLS/2006/052006/05182006/190816.

28 See, e.g., Amy Biegelsen, Bills Relating to Student Clubs, Sex Ed Fail to Pass,
VIRGINIAN-PILOT, Mar. 17, 2006, at E3.

29 Rachel Simmonsen, Okeechobee District Bans 'Sex-Based' Clubs, PALM BEACH

POST, Oct. 11, 2007, at 2B. In August 2006, Rowan-Salisbury Board of Education in North
Carolina adopted a similarly worded policy to prevent the formation of GSAs. Rowan-
Salisbury Bd. of Educ. Meeting Minutes at 3-4, Apr. 10, 2006, available at
http://www.rss.kl2.nc.us/BOE/0506BOEMnts/BOE4-10-06.pdf.

30 Interestingly, conservative Christians have also criticized these policies as

overbroad:

While successful in shutting out GSAs from school campuses, this
approach is not ideal because it prevents the formation of clubs that
support and promote healthy and responsible sexual decision-making. In
the last decade, abstinence clubs, which encourage students to postpone
sexual relationships until marriage, have been surfacing in schools.
Several Christian student clubs also have members take abstinence
pledges. A ban against sexuality clubs could silence the healthy message
these groups extend to teens.

Stephanie Evans, Gay-Straight Alliance Clubs: How Homosexual Student
Organizations Harm Our Schools, FINDINGS (N.C. Fam. Pol'y Council), Sept. 2006, at 1
available at http://www.ncfpc.org/PolicyPapers/Findings%20061 I -GSA.pdf.



2008] Morse v. Frederick's New Perspective 289

orientation or activity of any kind." Officials said that the new policy was
aimed to prevent student groups that challenged the district's abstinence-
only education from meeting.3 1

Finally, some school districts have gone as far as banning or
attempting to ban all student organizations that do not directly relate to the
school's curriculum to prevent GSAs from forming.32 Schools have
primarily resorted to adopting these policies in order to avoid triggering the
obligations of the Equal Access Act.33 For instance, after a high school
principal threatened to resign over the creation of a GSA, a South Carolina
school district held a vote to determine whether they should ban all
nonacademic and non-athletic clubs to legally prevent the GSA from
organizing.

34

LGBTQ students typically pursue two claims against schools that
prohibit them from forming GSAs: first, LGBTQ students almost always

31 See Simmonsen, supra note 29.

32 See, e.g., East High Gay/Straight Alliance v. Bd. of Educ. of Salt Lake City Sch.

Dist., 81 F. Supp. 2d 1166 (C.D. Utah 1999). Part IV.C of this article discusses limitations
on the permissibility of this type of policy ban under the First Amendment.

33 20 U.S.C. §§ 4071-4074 (2006). The Equal Access Act provides:

it shall be unlawful for any public secondary school which receives
Federal financial assistance and which has a limited open forum to deny
equal access or a fair opportunity to, or to discriminate against, any
students who wish to conduct a meeting within that limited open forum
on the basis of the religious, political, philosophical, or other content of
the speech at such meetings.

20 U.S.C. § 407 1(a) (2006). Congress did not define the term "noncurriculum." However, in
Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226, 237-39
(1990), the Supreme Court defined the term to include any student organization that does not
directly relate to the body of courses offered at the school. The Court held that a student
organization directly relates to the curriculum if: "[1] the subject matter is actually taught, or
will soon be taught, in a regularly offered course; [2] if the subject matter of the group
concerns the body of courses as a whole; [3] if participation in the group is required for a
particular course; or [4] if participation in the group results in academic credit." Id. at 239-
40.

34 School May Ban All Clubs to Prevent Gay/Straight Alliance,
NBCAuGUSTA.COM, June 20, 2008, http://www.nbcaugusta.com/news/southcarolina/
20608374.html. The district ultimately voted against the ban, choosing instead to adopt a
policy allowing parents to opt out of allowing their children to join any student organization,
and the principal later announced that he would not resign. S.C. Principal Rethinks
Resignation Over Gay Club, NBCAuGUSTA.COM, Dec. 5, 2008, http://www.nbcaugusta.
com/news/southcarolina/35634859.html.



290 Columbia Journal of Gender and Law [Vol. 18:1

assert that banning GSAs violates the Federal Equal Access Act;35 and
second, LGBTQ students also usually claim that banning GSAs violates the
First Amendment.36 In 1999, the first federal district court addressed the
legitimacy of a GSA ban under the Equal Access Act and the First
Amendment.37 Since then, of the nine federal district courts to assess the
legitimacy of GSA bans under the Equal Access Act or the First
Amendment, only three have addressed the First Amendment claim.38 Other
courts have found it unnecessary to rule on the First Amendment issue
because the cases were resolvable solely on statutory equal access
grounds.39 Judicial avoidance of this issue has led to the underdevelopment
of GSA First Amendment jurisprudence. Furthermore, more schools are

3' 20 U.S.C. §§ 4071-74 (2006). See supra note 2 and accompanying text; see also
infra notes 40-41 and accompanying text.

36 See supra note 3 and accompanying text; see also infra notes 39-40 and

accompanying text.

37 See East High Gay/Straight Alliance, 81 F. Supp. 2d 1166; Todd A. DeMitchell
& Richard Fossey, Student Speech: School Boards, Gay/Straight Alliances, and the Equal
Access Act, 2008 B.Y.U. EDUC. & L.J.. 89, 98-99 (2008) ("East High Gay/Straight Alliance
v. Board of Education of Salt Lake City School District was the first reported EAA case
involving gay-related school groups.").

38 The three cases that have addressed the First Amendment claim are East High

Gay/Straight Alliance, 81 F. Supp. 2d 1166; Caudillo v. Lubbock Indep. Sch. Dist., 311 F.
Supp. 2d 550 (N.D. Tex. 2004); and Gonzalez v. Sch. Bd. Of Okeechobee County, 571 F.
Supp. 2d 1257, 1269 (S.D. Fla. 2008). Three courts were only faced with the Equal Access
claim during litigation. See Franklin Cent. Gay/Straight Alliance v. Franklin Twp. Cmty.
Sch. Corp., No. IPOI-1518 C-M/S, 2002 WL 32097530 (S.D. Ind. Aug. 30, 2002); Straights
and Gays for Equality v. Osseo Area Sch.-Dist. No. 279, 471 F.3d 908 (8th Cir. 2006); Gay-
Straight Alliance of Okeechobee High Sch. v. Sch. Bd. of Okeechobee County, 483 F. Supp.
2d 1224 (S.D. Fla. 2007).

39 Three courts faced both equal access and First Amendment claims during
litigation, but explicitly avoided addressing the First Amendment claim because the cases
could be addressed solely on equal access grounds. See Colin v. Orange Unified Sch. Dist.,
83 F. Supp. 2d 1135 (C.D. Cal. 2000); Boyd County High Sch. Gay Straight Alliance v. Bd.
of Educ. of Boyd County, 258 F. Supp. 2d 667 (E.D. Ky. 2003); White County High Sch.
Peers in Diverse Educ. v. White County Sch. Dist., No. 2:06-CV-29-WCO, 2006 WL
1991990 (N.D. Ga. July 14, 2006). The canon of constitutional avoidance is frequently
invoked in cases involving both statutory and constitutional interpretation. See, e.g., Edward
J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988) ("Another rule of statutory construction ... is . . . where an otherwise acceptable
construction of a statute would raise serious constitutional problems, the Court will construe
the statute to avoid such problems unless such construction is plainly contrary to the intent of
Congress."). See generally, Trevor W. Morrison, Constitutional Avoidance in the Executive
Branch, 106 COLUM. L. REv. 1189, 1202-17 (2006).



Morse v. Frederick's New Perspective

shrewdly avoiding triggering the Equal Access Act by only permitting
curriculum-related student organizations to meet at school.40 Therefore, it
will become increasingly difficult for courts to address GSA cases solely on
equal access grounds; they will be pushed to address the constitutional
question.

II. FIRST AMENDMENT STUDENT SPEECH FRAMEWORK
BEFORE MORSE V FREDERICK THE INCREASING JUDICIAL
DEFERENCE TO SCHOOLS' BASIC EDUCATIONAL MISSIONS

Prior to Morse v. Frederick,4 1 three Supreme Court cases,
collectively known as the Tinker-Fraser-Kuhlmeier trilogy, 42 defined the
scope of deference that schools were afforded under the First Amendment
in limiting student expression. Subpart A focuses on the foundational case
on First Amendment student speech jurisprudence, Tinker v. Des Moines
Independent School District,4 3 where the Supreme Court adopted the bright-
line rule that a school may only limit student expression when it "materially
and substantially interfere[s] with the requirements of appropriate discipline
in the operation of the school." 44 Later, in Bethel School District No. 403 v.
Fraser4 5 (as discussed in Subpart B infra) and Hazelwood School District v.
Kuhlmeier46 (as discussed in Subpart C infra) the Court adopted two
exceptions to the Tinker rule, granting schools greater authority to limit
student expression that is "offensively lewd and indecent ' 47 or expression
that is school-sponsored.4 8 In granting this increased authority, the Court

40 See supra note 5 and accompanying text.

41 127 S. Ct. 2618 (2007).

42 See, e.g., Guiles v. Marineau, 461 F.3d 320, 324 (2d Cir. 2006) ("[W]e discuss

Tinker, Fraser, and Hazelwood, a trilogy of cases in which the Supreme Court enunciated
standards for assessing whether a school's censorship of student speech is constitutionally
permissible.").

43 393 U.S. 503 (1969).

44 Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (1966)).

4' 478 U.S. 675 (1986).

46 484 U.S. 260 (1988).

47 Fraser, 478 U.S. at 685.

48 Kuhlmeier, 484 U.S. at 273.

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Columbia Journal of Gender and Law

deferred to schools' policy decisions regarding their basic educational
missions.49 In neither case did the Court articulate the bounds of the
deference that it granted schools to limit student expression that violated
their educational missions, resulting in uncertainty over how to apply
Fraser and Kuhlmeier during future litigation.50

A. Tinker v. Des Moines Independent School District

Tinker is the foundational case in First Amendment student speech
jurisprudence.51 In Tinker, the student petitioners were suspended after
wearing black armbands to school in protest of the Vietnam War.52 School
administrators had previously adopted a policy requiring students to remove
armbands protesting the war. If the students refused, they would be
suspended.53 The school district argued that it ought to have ample
discretion to limit student expression that could be reasonably anticipated to
lead to a school disturbance.54 According to the school, the armbands would
lead to such a disturbance.55

The Supreme Court upheld the students' right to wear the armbands
and rejected the notion that schools have unfettered authority to limit

49 See, e.g., Governor Wentworth Reg'l Sch. Dist. v. Hendrickson, 421 F. Supp. 2d
410, 420 (D.N.H. 2006) ("[Fraser and Kuhlmeier] each clearly recognize the fundamental
importance of the educational mission entrusted to the public school system, and the critical
necessity of maintaining an orderly environment in which learning can take place.").

50 This uncertainty is illustrated by the parties' conflicting interpretations of Fraser

and Kuhlmeier in Morse v. Frederick, 127 S. Ct. 2618 (2007). See infra Part II.A.

51 Chemerinsky, supra note 16 at 527 ("Tinker v. Des Moines Independent

Community School District is the most important Supreme Court case in history protecting
the constitutional rights of students.").

52 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 504 (1969).

53 Id.

54 Brief for Respondents at *35, Tinker, 393 U.S. 503, 1968 WL 94384.

55 Tinker, 393 U.S. at 508-09. The school district also highlighted that a student
suspended from another school district wearing the armband was subjected to physical
violence. Brief for Respondents, supra note 54, at *33. Moreover, a former student within
the school district had been killed in the Vietnam War. The school district believed that a
disturbance might erupt because some of the former student's friends were still in school. Id.
at * 1.

292 [Vol. 18:1



Morse v. Frederick's New Perspective

student expression.56 The Court famously stated that "[i]t can hardly be
argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate. This has been the
unmistakable holding of this Court for almost 50 years. 57 The Court held
that in order for schools to ban student speech they have the burden of
showing that prohibiting such speech is motivated by "more than a mere
desire to avoid the discomfort and unpleasantness that always
accompan[ies] an unpopular viewpoint. 5 8 On these grounds, the Court
adopted a less deferential rule, requiring expression to "materially and
substantially interfere with the requirements of appropriate discipline in the
operation of the school" in order for schools to prohibit it.59 The Court
found no evidence that wearing the armbands had caused a disturbance on
school grounds or resulted in threats or acts of violence within the school
district.6°

56 Tinker, 393 U.S. at 511 ("In our system state-operated schools may not be

enclaves of totalitarianism. Schools officials do not possess absolute authority over their
students. Students in school as well as out of school are 'persons' under our Constitution.");
cf Edward T. Ramey, Student Expression: The Legacy of Tinker in the Wake of Columbine,
77 DENV. U. L. REv. 699, 699 (2000) ("Tinker represents a predictable judicial response to
the inevitable excesses of public school administrators accorded too much unquestioned
deference in matters touching upon individual liberties.").

57 Tinker, 393 U.S. at 506; Chemerinsky, supra note 16 ("This sentence powerfully
conveys schools are not institutions immune from constitutional scrutiny: students retain
their constitutional freedoms even when they cross the threshold into the school.").

58 Tinker, 393 U.S. at 508. The Court stated:

[I]n our system, undifferentiated fear or apprehension of disturbance is
not enough to overcome the right to freedom of expression. Any
departure from absolute regimentation may cause trouble. Any variation
from the majority's opinion may inspire fear. Any word spoken, in class,
in the lunchroom, or on the campus, that deviates from the views of
another person may start an argument or cause a disturbance. But our
Constitution says that we must take this risk.

Id. (citing Terminiello v. Chicago, 337 US 1 (1949)).

" Id. at 509.

60 Chemerinsky, supra note 16, at 533 ("The final theme expressed in Tinker is the

need for careful judicial review to ensure the school has met this heavy burden. Repeatedly
throughout the opinion, Justice Fortas emphasized the lack of evidence to support punishing
the speech.").

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294 Columbia Journal of Gender and Law [Vol. 18:1

B. Bethel v. Fraser School District No. 403

The Tinker rule guided courts' assessments of student speech
prohibitions until Bethel v. Fraser School District No. 403. 1 In Fraser, the
Supreme Court circumvented Tinker and adopted a new rule giving school
officials greater authority to limit "offensively lewd and indecent" student
speech.62

The student respondent was suspended after delivering a speech
during a school assembly nominating a fellow student for elective office.63

During the speech, the candidate was referred to in terms of an "elaborate,
graphic, and explicit sexual metaphor., 64 The school district maintained a
policy banning use of obscene language at school.65 Many of the students in
the audience were fourteen years old and were required either to attend the
assembly or report to study hall.66

In defending its decision to suspend the student, the school district
argued that Tinker was inapplicable because the decision involved
discrimination against a particular political viewpoint, not a school's ability
to regulate indecent or offensive forms of student expression. 67 The school
district emphasized the special characteristics of the public school
environment and claimed that it "had authority to regulate Fraser's indecent
and offensive sexual talk because it has the responsibility to inculcate
community standards of decency and civility in student discourse." 68 In
light of this responsibility, the district argued that the "maintenance of
standards of decency in student discourse is an appropriate goal of the
educational process., 69 The school district posited that prohibiting the

61 478 U.S. 675 (1986).

621 d. at 685.

63 Id. at 677-78.
64 
ld. at 678.

65 Id. at 680. Interestingly, the policy followed the language in Tinker and provided

that "[c]onduct which materially and substantially interferes with the educational process is
prohibited, including the use of obscene, profane language or gestures." Id.

66 Id,

67 Brief of Petitioners at *13, Fraser, 478 U.S. 675 (No. 1034), 1985 WL 667975.

68 Id. at *7.

69
1d. at *17.



Morse v. Frederick's New Perspective

student's speech was necessary to dispel impressions that the school
approved of speech that it considered incompatible with its basic
educational mission . Consequently, the school district advocated for a
more deferential standard to apply to sexually indecent or offensively lewd
student speech, contending that its restrictions were "reasonable in light of
the surrounding circumstances.'

The Supreme Court agreed with the petitioner that Tinker permits
students to engage in a "nondisruptive, passive expression of a political
viewpoint," but does not "concern speech or action that intrudes upon the
work of schools or the rights of other students. 7 2 In upholding the school
district's ability to prohibit the student's expression, the Court emphasized
the special role that public education plays in preparing students for
citizenship and in "inculcat[ing] the habits and manners of civility., 73 The
Fraser Court did not articulate which modes of expression were appropriate
to further "habits and manners of civility," but affirmed that prohibiting
vulgar and offensive terms in public discourse was within this realm and an
appropriate function of schools.74 Moreover, the Court acknowledged the
"interest in protecting minors from exposure to vulgar and offensive spoken
language. 75

The Court also deferred to school districts' judgments to determine
whether particular expression is vulgar, lewd, or offensive and thus

70 The school district specifically claimed that "[a] public school has an 'important

interest in avoiding the impression that it has endorsed a viewpoint at variance with its
educational program."' Id. at *25 (quoting Seyfried v. Walton, 668 F.2d 214, 216 (3d Cir.
1981)).

7' Id. at *17.

72 Fraser, 478 U.S. at 680 (citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S.

503, 508 (1969)).
73 Id. at 681.
74 Id. at 681-82.

75 Id. at 684 (referring to FCC v. Pacifica Found., 438 U.S. 726 (1978)).

2008] 295



Columbia Journal of Gender and Law

76contradictory to their basic educational missions. Although the Fraser
Court did not explicitly reason why it granted this deference, one possible
explanation is that the Court viewed school districts to have more expertise
in defining their particular educational missions. Because school districts
not only have the ability to construct school policies, but also have stronger
connections with the local community, including parents, it follows that
they would be in a better position than the courts to assess community
standards.77

The Fraser Court's decision to defer to schools' definitions of
indecent or offensively lewd expression that contradicts their basic
educational missions created uncertainties for future litigation. For instance,
if the responsibility to "inculcate the habits and manners of civility ' 78 was
so fundamental, should it not override student speech protection in other
contexts not involving lewd or indecent speech? 79 Does Fraser allow for a

76 The First Amendment does not prevent the school officials from

determining that to permit a vulgar and lewd speech such as respondent's
would undermine the school's basic educational mission. It was perfectly
appropriate for the school to disassociate itself to make the point that
vulgar speech and lewd conduct is wholly inconsistent with the
'fundamental values' of public school education.

Id. at 685-86. See also Boroff v. Van Wert City Bd. of Educ, 220 F.3d 465, 468 (6th Cir.
2000) ("The [Fraser] Court ultimately held that the school district had the authority to
determine that the vulgar and lewd speech at issue would undermine the school's basic
educational mission.").

77 In fact, the Third Circuit has adopted this reasoning to defer to schools' basic
educational missions:

[The teacher] was vested with the authority, unconstrained by school
regulations, to determine the manner in which the classes should be
conducted so as to best serve the educational mission of the school. This
required her to exercise her discretion . . . .Her exercise of this
discretion is entitled to substantial deference from this Court not only
because she is a professional educator, but also because she is in a far
better position than we to predict how students and their parents are
likely to respond to the way she conducts her class in any given situation
and what impact those responses may have on the ongoing educational
process.

C.H. v. Oliva, 195 F.3d 167, 174 (3d Cir. 1999).

78 Fraser, 478 U.S. at 681.

79 For example, in Denno v. School Board of Volusia County, the Eleventh Circuit
read the school's responsibility to inculcate values of civility, as declared in Fraser, to
permit a school to ban displays of the Confederate flag during school hours on school

296 [Vol. 18:1



Morse v. Frederick's New Perspective

school to define its educational mission by adopting school policies and
then limit any student expression that violates these policies? Can schools
ban student speech that can be reasonably construed to promote illegal
behavior, such as drug or alcohol use? Or, can a school limit a student's
expression only if there are legitimate or compelling interests in support of
prohibiting it? Conflicting interpretations of Fraser's holding in the
appellate briefs in Morse v. Frederick illustrate that these uncertainties still
arise in litigation. 80

C. Hazelwood School District v. Kuhlmeier

In Kuhimeier, the Supreme Court again circumvented Tinker to
expand schools' authority to limit student expression that reasonably might
be perceived to bear the school's imprimatur.81 The respondent students
were staff writers for the school's newspaper. 82 The principal of the school
always reviewed articles prior to publication. 83 During prior review, the
principal objected to and excised two articles from the newspaper, one
dealing with students' experiences with pregnancy and the other discussing
the impact of divorce on students at school.8 4

Before addressing the specific legal issue at hand, the Court
revisited Fraser and affirmed the principle that school districts have the
ability to limit expression that contradicts their "basic educational
mission[s]" and reaffirmed that "[t]he determination of what manner of
speech in the classroom or in school assembly is inappropriate properly

premises. 218 F.3d 1267, 1274-75 (11 th Cir. 2000); see also Bowler v. Town of Hudson, 514
F. Supp. 2d 168, 179 (D. Mass. 2007) ("Several courts have read Fraser to support
censorship of student speech that was not 'lewd, vulgar, or obscene,' but that could
reasonably be interpreted to promote illegal or 'immoral' activities, including suicide,
murder, and drugs." (quoting Fraser, 478 U.S. at 683)).

80 See infra Part IlI.B.

81 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272-73 (1988); see Bruce C.
Hafen, Hazelwood School District and the Role of First Amendment Institutions, 1988 DUKE
L.J. 685, 692-99 for a discussion on how Kuhlmeier affords schools more deference to limit
student expression than Tinker; see also Chemerinsky, supra note 16, at 537 ("The Court
went even further in its deference to school authorities in Hazelwood School District v.
Kuhlmeier.").

82 Kuhlmeier, 484 U.S. at 262.

83 Id. at 263.

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298 Columbia Journal of Gender and Law [Vol. 18:1

rests with the school board, rather than with the federal courts. '85 The Court
then rejected the application of the Tinker rule, noting that Tinker
"addresses educators' ability to silence a student's personal expression that
happens to occur on school premises .. . [not] educators' authority over
school-sponsored publications, theatrical productions, and other expressive
activities that students, parents, and members of the public might
reasonably perceive to bear the imprimatur of the school. 86 The Court
found that the latter category of expressive activities is part of the school
curriculum, not forums of public expression, and is designed to "impart
particular knowledge or skills to student participants and audiences., 87

The Court gave schools greater authority to limit expressive
activities that bore the school's imprimatur because of the connection
between these expressive activities and the school's curriculum. This
greater authority served to "assure that participants learn whatever lessons
the activity is designed to teach, that readers or listeners are not exposed to
material that may be inappropriate for their level of maturity, and that the
views of the individual speaker are not erroneously attributed to the
school. '88 The Kuhlmeier Court also invoked the same reasoning as it did in
Fraser, claiming that schools

85 Id. at 267 (internal citations omitted). The Court also stated:

We have nonetheless recognized that the First Amendment rights of
students in the public schools "are not automatically coextensive with
the rights of adults in other settings," and must be "applied in light of the
special characteristics of the school environment." A school need not
tolerate student speech that is inconsistent with its "basic educational
mission," even though the government could not censor similar speech
outside the school. Accordingly, we held in Fraser that a student could
be disciplined for having delivered a speech that was "sexually explicit"
but not legally obscene at an official school assembly, because the
school was entitled to "disassociate itself' from the speech in a manner
that would demonstrate to others that such vulgarity is "wholly
inconsistent with the 'fundamental values' of public school education."
We thus recognized that "[t]he determination of what manner of speech
in the classroom or in school assembly is inappropriate properly rests
with the school board," rather than with the federal courts. It is in this
context that respondents' First Amendment claims must be considered.

Id. at 266-67 (internal citations omitted).
86 Id. at 271.

87 id.

88 Id.



2008] Morse v. Frederick's New Perspective 299

must also retain the authority to refuse to sponsor student speech
that might reasonably be perceived to advocate drug or alcohol
use, irresponsible sex, or conduct otherwise inconsistent with the
"shared values of a civilized social order," or to associate the
school with any position other than neutrality on matters of
political controversy.89

Unlike the Tinker standard, which requires a high showing of a
"material and substantial interference" in order to limit student expression,
the Kuhlmeier rule allowed schools to limit school-sponsored expression as
long as the limitation was "reasonably related to pedagogical concerns." 90

Although Kuhlmeier applies to a narrowly defined set of school-
sponsored expressive activities, the deferential reasoning of the Court,
which is similar to the Court's reasoning in Fraser, raised challenges for
future cases. Kuhlmeier undoubtedly affirmed the principle in Fraser that in
light of schools' special responsibility to inculcate values, they should be
given greater deference to limit particular categories of expression when
they contradict schools' basic educational missions. However, the precise
scope of this deference remained unclear, thereby setting the stage for
Morse v. Frederick. The parties' positions in Morse were shaped by their
conflicting interpretations of the level of deference Kuhlmeier affords
schools to limit speech violating their basic educational missions. These
conflicting interpretations placed pressure on the Morse Court to clarify the
scope of the deference given to schools under such circumstances.

IlI. MORSE V. FREDERICK. A NEW RESTRAINT ON THE
DEFERENCE AFFORDED TO SCHOOLS TO LIMIT STUDENT

EXPRESSION ANTITHETICAL TO THEIR BASIC
EDUCATIONAL MISSIONS

Part II demonstrated that after Tinker, the Supreme Court
increasingly granted schools authority to limit student expression that
violated their self-defined basic educational missions. This Part focuses on
the Supreme Court's most recent student free speech decision, Morse v.
Frederick, where the Court held that under the First Amendment, schools
may limit student expression that is "reasonably viewed as promoting
illegal drug use." 91 Subpart A provides a brief synopsis of the facts in

89 Id. at 272 (internal citations omitted).

90 Id at 270, 273.

91 Morse v. Frederick, 127 S. Ct. 2618, 2629 (2007).



Columbia Journal of Gender and Law

Morse for contextual purposes. Subpart B focuses on the school district's
position in Morse, which advocated for schools to have broad discretion in
limiting student expression that contradicted their basic educational
missions. Subpart C focuses on the Court's holding in Morse, and more
specifically, understanding the decision as a constraint on the amount of
deference afforded to schools to limit student expression that contradicts
their basic educational missions.

A. Relevant Facts

In Morse, the high school student respondent received a ten-day
suspension for holding a banner in front of the school displaying the
message "BONG HiTS 4 JESUS" as the Olympic Torch Relay passed the
school.9a The principal allowed students to leave class to observe the relay
as an approved social event or class trip.93 The banner was easily readable
by students on the other side of the street. School policy prohibited "any
assembly or public expression that ... advocates the use of substances that
are illegal to minors., 94 The student filed suit, alleging that the suspension
violated his First Amendment rights.95

B. The School District's Interpretation of the Role of Schools' Basic
Educational Missions in Limiting Student Expression

The uncertainty over the appropriate bounds of deference that
schools should be afforded to limit student expression that contradicts their
basic educational missions was a major area of disagreement for the parties
to the case, as shown in their appellate briefs and oral arguments before the
Supreme Court. The school district in Morse advocated for a broad rule that
"allows the school board considerable discretion both in identifying the
educational mission [of the school] and to prevent disruption of that
mission.' 96 The school district argued that the "special characteristics" of
public school settings require deference to schools 97 and emphasized that

92 Morse, 127 S. Ct. at 2622.

93 Id.

94 Id. at 2623.

95 Id.

96 Transcript of Oral Argument at *5, Morse, 127 S. Ct. 2618 (No. 06-278), 2007

WL 880748.

97 Brief for Petitioner, supra note 20, at *18-25.

300 [Vol. 18:1



Morse v. Frederick's New Perspective

public schools have a special responsibility to prepare students for
citizenship and teach them the "boundaries of socially appropriate
behavior."98 The school district noted that this responsibility justified the
Court's deferential approach to schools' basic educational missions in
Fraser and Kuhlmeier.

99

However, the school district argued for extending Fraser to new
grounds by applying the decision to the content of student expression, even
though the Fraser Court explicitly limited its holding to the form of student
expression. The school district emphasized dicta in the Fraser dissent,
which stated that "a school faculty must regulate the content as well as the
style of student speech in carrying out its educational mission."' 0 0 During
oral argument before the Supreme Court, Ken Starr, lead council for the
school district, also argued that it was permissible to limit the student's
speech based on its content.' 0 The school district contended that the
school's ability to adopt policies should influence the Court to conclude that
the rule it advocated by the school district did not grant schools unfettered
discretion to limit school speech. 10 2 However, as amici briefs in support of
the student highlight, this rule would allow student expression to "be

98 Id. at *18 (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681

(1986)).

99 Id.

00 Id. at *23-24. However, amici for the student respondent emphasized that "[i]t

was the objectionable style of his speech, not its message or his viewpoint, which justified
the school's prohibition." Brief for Lambda Legal Def. & Educ. Fund, supra note 8, at * 14
(citing Fraser, 478 U.S. at 683).

101 The following excerpt from oral arguments illustrates this point:

Justice Stevens: Let me just clear up one thing to be 100% sure I
understand your position. It does-the message is the critical part of this
case. If it was a totally neutral message on a 15-foot sign, that would be
okay. You're not saying 15-foot signs are disruptive . . .And so we're
focusing on the message and that's the whole crux of this case.

Mr. Starr: That's why this case is here because of the message.

Transcript of Oral Argument, supra note 96, at * 13.

102 In Morse, the school had a policy that specifically prohibited "any assembly or

public expression that ... advocates the use of substances that are illegal to minors." Morse
v. Frederick, 127 S. Ct. 2618, 2623 (2007). In oral arguments, Ken Starr stated, "here we
have a written policy which does in fact respond to concerns about the exercise of
standardless discretion." Transcript of Oral Argument, supra note 96, at * 13.

2008]



Columbia Journal of Gender and Law

prohibited ... simply because school officials disapproved of the speech or
because the school board drafted a policy."' 0 3

The school district also tried to extend Kuhlmeier to new grounds
by emphasizing dicta in Kuhlmeier, which it interpreted as granting
authority for schools to limit student speech advocating illegal drug use. 0 4

The Kuhlmeier Court stated in dicta,"[a] school must also retain the
authority to refuse to sponsor student speech that might reasonably be
perceived to advocate drug or alcohol use, irresponsible sex, or conduct
otherwise inconsistent with 'the shared values of a civilized social
order.''105 Although the school district acknowledged that Kuhlmeier
applied to school-sponsored speech, 0 6 it highlighted that this dicta was
supported by "Fraser's emphasis on . . . school[] educational
mission[s]',"'' 7 which involved student expression that was not school-
sponsored. Therefore, under the rule advocated by the school district, this
dicta could be extended beyond school-sponsored speech to any expression
that could "reasonably be perceived to advocate drug or alcohol use,
irresponsible sex, or conduct otherwise inconsistent with 'the shared values
of a civilized social order'," 108 or any school declaring that such expression
contradicts their basic educational missions. 0 9

103 Brief for Lambda Legal Def. & Educ. Fund, Inc., supra note 8, at * 14; see also

Brief of the Nat'l Coalition Against Censorship & the Am. Booksellers Found. for Free
Expression as Amici Curiae Supporting Respondent at *22, Morse, 127 S. Ct. 2618 (No. 06-
278), 2007 WL 550929 ("Reading Fraser to allow schools to prohibit any message or form
of expression that the school determines to be offensive to its own principles essentially
creates the same scenario the Tinker majority eschewed-confining student expression to
those sentiments that are officially approved.").

104 Brief for Petitioner, supra note 20, at *25.

105 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988).

106 Brief for Petitioner, supra note 20, at *25.

107 Id. (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986)).

108 Kuhlmeier, 484 U.S. at 272.

109 Transcript of Oral Argument at *5, Morse, 127 S. Ct. 2618 (No. 06-278), 2007

WL 880748.

302 [Vol. 18:1



Morse v. Frederick's New Perspective

C. The Morse Holding: A New Restraint on the Deference Afforded to
Schools to Limit Student Speech Contradicting their Basic
Educational Missions

Free speech advocates have criticized Morse because the Supreme
Court once again circumvented Tinker to adopt a rule granting schools
greater authority to limit student expression that is reasonably viewed to
promote illegal drug use." 0 Morse was not the optimal result for free speech
advocates, who would have preferred for the Court to apply the
constitutionally stringent "material or substantial" standard from Tinker,
and to conclude that the student's banner did not result in "material or
substantial" disruption to the school setting."' However, there are some
aspects of Morse that imply that the Court is shifting its perspective
regarding the amount of deference that schools should be afforded to limit
speech that contradicts their basic educational missions. Although the
implications of this shift are not entirely clear, I predict that free speech
advocates will find this shift praiseworthy.

The Morse Court extracted two principles from Fraser to guide its
analysis. 12 First, that the constitutional rights of students in public schools
were not coextensive with the rights of adults." 3 Second, that "the mode of
analysis set forth in Tinker is not absolute."'"14 Although the Court
concluded that the decision in KuhImeier was inapplicable because "no one
would reasonably believe that the banner bore the school's imprimatur,"' 'l 5

it found Kuhimeier to be instructive with regard to the two Fraser
principles.1 16

110 American Civil Liberties Union, ACLU Slams Supreme Court Decision in

Student Free Speech Case, June 25, 2007, http://www.aclu.org/scotus/2006term/morsev.
frederick/30230prs2007O625.html; see generally Hans Bader, Bong Hits 4 Jesus: The First
Amendment Takes a Hit, 2007 CATO SUP. CT. REV. 133 (2007).

111 Counsel for the student advocated for the Tinker rule to be applied. See Brief
for Respondent at *10-13, Morse v. Frederick, 127 S. Ct. 2618 (2007) (No. 06-278), 2007
WL 579230.

112 The Morse Court avoided clarifying the Fraser analysis because it was

unnecessary to reach a decision on the merits of the case. Morse, 127 S. Ct. at 2626.

13 id.

114 Id. at 2627.

115 Id.

116 Id. ("The case [Kuhlmeier] is nevertheless instructive because it confirms both

principles cited above. Kuhlmeier acknowledged that schools may regulate some speech

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304 Columbia Journal of Gender and Law [Vol. 18:1

The Court resolved some uncertainties about the level of deference
that Fraser and Kuhimeier afforded schools to limit student speech on the
basis of their educational missions. In the majority opinion, Chief Justice
Roberts acknowledged the breadth of the rule that the school district sought
the Court to adopt and rejected it on those grounds.' 7 According to
Roberts:

Petitioners urge us to adopt the broader rule that Frederick's
speech is proscribable because it is plainly 'offensive' as that
term is used in Fraser. We think this stretches Fraser too far; that
case should not be read to encompass any speech that could fit
under some definition of 'offensive.' After all, much political and
religious speech might be perceived as offensive to some. The
concern here is not that Frederick's speech was offensive, but that
it was reasonably viewed as promoting illegal drug use.118

Roberts' analysis does not explicitly mention the basic educational
mission argument. However, as discussed in Part III.B supra, the school
district's proposed standard allowed school districts to define which student
expression was "plainly 'offensive' through its basic educational mission.
Therefore, in essence, Roberts' analysis is a rejection of the basic
educational mission argument.

In a concurring opinion joined by Justice Kennedy, Justice Alito
provides a stronger and explicit rejection of the basic educational mission
argument on the basis that such great deference could be easily
manipulated:

[t]he "educational mission" of the public schools is defined by
the elected and appointed public officials with the authority over
the schools and by the school administrators and faculty. As a
result, some public schools have defined their educational
missions as including the inculcation of whatever political and
social views are held by members of these groups. . . .The
"educational mission" argument would give public school

,even though the government could not censor similar speech outside the school.' And, like
Fraser, it confirms that the rule of Tinker is not the only basis for restricting student
speech.") (internal citations omitted).

117 Id. at 2629. (internal citations omitted).

118 id.



Morse v. Frederick's New Perspective

authorities a license to suppress speech on political and social
issues based on disagreement with viewpoint expressed."19

Finally, Justice Stevens' dissenting opinion, joined by Justices
Souter and Ginsburg, rejects the Court's holding as impermissible
viewpoint discrimination.1 20 The dissenting justices also reject the
petitioner's broad rule granting deference to schools to limit student speech
that contradicts their basic educational missions.' 2 1 Therefore, seven of the
nine Supreme Court justices rejected the idea that Fraser and Kuhlmeier
grant schools a blank slate to limit student expression simply because it
contradicts their self-defined educational missions.

Despite rejecting the basic educational mission argument, the Court
still afforded schools greater authority to limit student speech that is
reasonably viewed as promoting illegal drug use. If the Court rejected the
educational mission argument, what did it use to justify this increased
discretion? The Court stated that it gave weight to "the special
characteristics of the school environment, and the governmental interest in
stopping student drug abuse--reflected in the policies of Congress and
myriad school boards."'122 At first glance, this analysis seems similar to the
rationale employed by the Court in Fraser and Kuhimeier. Therefore, it is
plausible to read Morse as being similar to previous cases in which the
Court circumvented Tinker in order to adopt more deferential rules
permitting schools to limit particular categories of student speech. Given
that Morse is a relatively recent decision, it is yet to be seen whether this
will be Morse's effect.

However, there is a perceptible difference between the mode of
analysis employed by the Court in Fraser and Kuhlmeier and that applied in
Morse. Even though the Morse Court viewed deterring student drug use as
an "important-indeed, perhaps compelling interest,"'123 it did not merely
accept the school district's position that deterring student drug use was an
important educational goal. The Court acknowledged that school boards
throughout the country had adopted policies prohibiting student speech that

"9 Id. at 2637.

121 Id. at 2644.

121 Id.

122 Id. at 2629.

123 Id. at 2628.

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promoted illegal drug use, 124 but the Court's primary focus was on objective
findings independent of schools' subjective assessments. First, the Court
emphasized the objective harms that result from drug use by young people,
which the Court found to not only negatively affect student drug users, but
also the student body and faculty.1 25 Second, the Court highlighted that drug
use among America's youth is a widespread and growing problem. 126 Third,
the Court emphasized that, in response to the growing drug problem among
America's youth, Congress had declared that educating students about the
dangers of illegal drug use is part of a school's job. 127 This Congressional
mandate applied to all public schools, not particular schools that choose to
include this in the definitions of their basic educational missions. 28

Therefore, the Court seems to be shying away from deferring to schools'
self-defined educational missions and focusing on objective factors
independent of schools' subjective assessments or definitions.

Moreover, unlike Fraser, in which the Court explicitly deferred to
the school district's definition of what was "offensively lewd or indecent,"
the majority in Morse extensively scrutinized the reasonableness of the
principal's interpretation of the banner's message.129 The Court offered and
analyzed the merit of an array of possible interpretations that differed from
the principal's interpretation. Although the Court agreed that the principal's
interpretation was "a plainly reasonable one," this assessment would have
been unnecessary if the Court had continued its trend of deferring to
schools' subjective assessments of what contradicted their basic educational
missions.

Therefore, Morse should be viewed as a new restraint on the
deference that school districts are afforded to limit speech that contradicts
their educational missions. Because Morse is a relatively recent decision, it

124 Id.

125 Id.

126 id.

127 Id. ("Congress has declared that part of a school's job is educating students

about the dangers of illegal drug use." Id. at 2621).

128 The Court stated: "[Congress] has provided billions of dollars to support state

and local drug-prevention programs, 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. § 7144(d)(6) (2000 ed., Supp. IV)" Id. at 2628.

129 Id. at 2624-26.

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is unclear how the Court's decision will affect the First Amendment
protection of student expression. 30 As demonstrated in the next Part,
despite this uncertainty, Morse is a potentially helpful First Amendment
precedent for students attempting to form GSAs.

IV. MORSES IMPLICATIONS FOR GAY-STRAIGHT ALLIANCE
FIRST AMENDMENT JURISPRUDENCE

This Part demonstrates how interpreting Morse as a rejection of the
basic educational mission argument affects GSA First Amendment
jurisprudence. After analyzing how the rejection of the basic educational
mission argument affects the constitutional legitimacy of the three different
types of policies that schools have adopted to prohibit GSAs, this Article
concludes that Morse would strengthen LGBTQ students' claims that each
of these policies violates the First Amendment.

A. School Policies Explicitly Prohibiting Student Speech Violating
Schools' Self-Defined Rules and Values

The Morse Court's rejection of the basic educational mission
argument supports the claim that banning GSAs by means of school district
policies prohibiting students from "engaging in any activity contrary to law,
School Board policy, and the adopted core values, or school rules"1 31 is
unconstitutional. School districts have the authority under Morse to prohibit
student speech promoting illegal drug use. They do not have the vast
authority, however, to limit GSAs from forming merely because they
believe that the organizations' missions offend their self-defined values or
educational missions.

B. School Policies Explicitly Prohibiting "Sex-Based" Student
Organizations

Morse's effect on the level of First Amendment protection afforded
to students who attempt to form GSAs in schools with policies banning
student groups that are "sex-based" or "based upon any sexual grouping,
orientation or activity of any kind"'132 is less clear. It is possible to interpret
Morse as making it more difficult for LGBTQ students to challenge these

130 See supra note 13 and accompanying text.

131 See supra notes 28 and 29 and accompanying text.

132 See Simmonsen, supra note 29.

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policies as First Amendment violations. Morse could be extended as
support for giving increased deference to school officials to limit speech
that reasonably promotes illegal behavior. Some states, such as Texas,
criminalize sexual conduct between minors if they are more than three years
apart in age. 133 The federal district court in Caudillo v. Lubbock
Independent School District relied upon the illegality of sexual conduct
between minors to conclude that the school's prohibition of the GSA did
not violate the Equal Access Act. 134 If Morse can be extended to grant
schools increased authority to limit speech that can arguably constitutes
promotion of illegal conduct, then it is possible that these statutes will lead
courts to grant greater authority for schools to limit student expression in
states that criminalize sexual conduct between minors.

This possibility is further supported by the fact that the Morse
Court accepted the school district's view that Kuhlmeier supports the
proposition that schools "must also retain the authority to refuse to sponsor
student speech that might reasonably be perceived to advocate drug or
alcohol use.' ' 135 Even though the Morse Court rejected the argument that
Kuhlmeier applied to the case, the Court still incorporated the "reasonable
perception" language into the rule it constructed. The Kuhlmeier Court
stated in dicta that schools must retain the authority to limit not only student
speech that is reasonably viewed as promoting illegal drug use, but also
speech that "might reasonably be perceived to advocate ... irresponsible
sex."'136 Therefore, if school districts view GSAs as reasonably promoting
illegal same-sex sexual activity between minors, it is possible that Morse
makes it more difficult for students to prove that prohibiting GSAs results
in First Amendment violations.

However, there are aspects of Morse that may help LGBTQ
students defeat policies banning student groups that are "sex-based" or
"based upon any sexual grouping, orientation or activity of any kind."' 37

Even if Morse can be extended to support the argument that schools have
more deference to limit speech promoting illegal sexual conduct between
minors, these policies are illegitimate because they also prohibit student
expression advocating entirely legal activity. In fact, a GSA's mission to

133 TEX. PENAL CODE ANN. § 21.11 (a), (b) (Vernon 2003).

134 311 F. Supp. 2d 550, 565-66 (N.D. Tex. 2004).

135 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988).

136 Id.

137 See Simmonsen, supra note 29.

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Morse v. Frederick's New Perspective

promote tolerance and respect and to hold discussions on combating
harassment and violence on the basis of sexual orientation within school
advocates respect for the law. At least one lower court has already rejected
the notion that a GSA violates school abstinence policies prohibiting
discussions of sexual conduct on campus when the group's goal is to
promote tolerance and respect.138

Moreover, Morse's effect on the First Amendment legitimacy of
these policies is contingent upon whether courts defer to schools'
definitions of "sex-based." The Morse Court did not simply defer to the
principal's view that the banner could be reasonably perceived as
advocating illegal drug use. Rather, the Court dedicated an entire section of
its opinion to exploring alternative interpretations of the banner before
concluding that the principal's interpretation was reasonable.139 In Caudillo,
where the federal district court upheld a school district's ban of a GSA
under the First Amendment, the organization had posted links to websites
containing sexually explicit content. 40 Most GSAs primarily intend to
promote tolerance and respect in schools on the basis of sexual orientation
and gender identity.' 41 Therefore, to ban all GSAs under policies prohibiting
"sex-based" clubs, the courts would have to defer to schools' views that by
their nature GSAs will promote irresponsible sex between minors.

Existing case law suggests that it is unlikely that courts will
interpret GSAs that serve to promote tolerance and respect as promoting
irresponsible sex. One federal district court has held that the school's
arguments "do not offer any clear reason to believe that the [GSA] would

138 In Gay-Straight Alliance of Okeechobee High School v. School Board of

Okeechobee County, 483 F. Supp. 2d 1224, 1228 (S.D. Fla. 2007), the school argued that it
had the authority to prohibit a GSA from meeting on school grounds because the
organization was a sex-based club and it had the authority to restrict sexual material from
children. The district court held that the school could not rely on the name of the student
organization to reach the conclusion that its discussions would contain sexually inappropriate
content. Id. at 1229. Rather, the school had to proffer direct evidence that the organization
was involved in sharing sexually explicit material or engaging in sexually explicit
discussions. Id.

139 Morse v. Frederick, 127 S. Ct. 2618, 2624-25 (2007).

140 Caudillo v. Lubbock Indep. Sch. Dist., 311 F. Supp. 2d 550, 556 (holding that

the school had the authority to prohibit a GSA from meeting on school grounds when the
organization declared "educat[ing] willing youth about safe sex, AIDS, hatred, etc." as one
of its missions and posted links on its website to www.gay.com and
www.youthresources.com, two sites that contained links to material with sexual content.).

141 See supra note 24 and accompanying text.

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Columbia Journal of Gender and Law

hinder the teaching of the benefits of abstinence at school. In fact, there is
no apparent reason why the [GSA] might not be an advocate for abstinence
in the school." 142 Rather than deferring to the school's interpretation of
"sex-based," the court upheld that the school district had the burden of
showing that the GSA would be "involved with accessing or sharing with
other students obscene or explicit sexual material" and that this burden
cannot be met by "an assumption or conclusion derived from the name of
the club."'143 The opinion in this prominent case suggests that some courts
decline to defer to schools' definitions of what is "sex-based." Morse dealt
with an individual banner; no prior case law had interpreted the
expression's meaning. However, existing case law rejecting schools' biased
definition of "sex-based," '

144 in addition to Morse's increasing scrutiny
towards school districts' interpretations of student expression, supports the
argument that Morse may ease the burden on LGBTQ students to prove that
policies prohibiting "sex-based" clubs violate the First Amendment.

C. School Policies Prohibiting All Noncurricular Student Organizations

After Morse, school districts may still ban GSAs under the First
Amendment if they prohibit all noncurricular student organizations from
meeting on school grounds. In fact, in light of Morse's effect on the other
two types of policies that schools have adopted to ban GSAs, prohibiting all
noncurricular student groups seems to be the most viable legal option for
school districts to ban GSAs. As this Subpart demonstrates, however, this is
not necessarily a negative result for LGBTQ students or free speech
advocates. By interpreting Morse as a rejection of the basic educational
mission argument, schools are now forced to take the extreme and
disfavored measure of banning all noncurricular student groups in order to
prohibit a GSA from forming.

School administrators who oppose GSAs have acknowledged that
banning all noncurricular student clubs from meeting is "a very
comprehensive... very serious step."'' 45 One board of education member in
a school district that was considering a ban on all student groups to prevent

142 Gay-Straight Alliance of Okeechobee High Sch., 483 F. Supp. 2d at 1229.

143 id.

144 Id. at 1228-29.

145 Dyana Bagby, Gay Student Club Under Fire in Madison County, SOUTHERN
VOICE, Sept. 23, 2005, available at http://www.sovo.com/2005/9-
23/news/localnews/localnewsgaygroups.cfm.

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2008] Morse v. Frederick's New Perspective 311

a GSA from forming publicly stated that taking such a drastic measure
would not "be fair" to the entire student body. 146 Some students have even
held organized walkout protests after their school districts banned all
noncurricular clubs to prohibit a GSA from forming at their school. 14 7

Parents have also expressed concerns that "banning all clubs would put
students applying to college at a disadvantage., 148

Existing case law also supports the notion that schools cannot avoid
these concerns by adopting written policies prohibiting all noncurricular
groups from meeting at school, banning GSAs from meeting, but then
continuing to allow other noncurricular groups to meet at school. The
Supreme Court and lower federal courts have affirmed that courts must look
to schools' actual practices, as opposed to stated policies, in order to
determine whether they are truly banning all noncurricular clubs from
meeting at school. 149 In East High Gay/Straight Alliance v. Board of
Education of Salt Lake City School District, the federal district court held
that the school's practice of banning the GSA, but allowing noncurricular
groups to convene on school grounds, ran "afoul of both the Equal Access
Act and the First Amendment."' 50 Therefore, resistance from students,

146 See, e.g., Lee Shearer, Lines Drawn Over Gay Support Club at High School,

ATHENS BANNER-HERALD, Sept. 15, 2005, available at http://onlineathens.com/stories/
091605/new_20050916058.shtml. ("I don't think that it would be fair to ban all clubs."
(quoting Robert Haggard, Chairman of the Madison County School Board)).

147 See, e.g., McCreary, supra note 25, at 8 ("On Friday, the day after passing the

resolution, most students in the district held a walkout in protest of the ban on all clubs. At
Pleasantville, over 700 students gathered in front of the school, blocking traffic on a busy
two-lane public road.").

148 Sexuality Info. & Educ. Council of the United States (SIECUS), Georgia State

Profile, Students Finally Win GSA Lawsuit in White County,
http://www.siecus.org/index.cfm (follow "Policy & Advocacy" hyperlink; then follow "State
Profiles" hyperlink; then click on Georgia on the map of the United States; then follow
"Events of Note" hyperlink) (last visited Nov. 25, 2008).

149 Bd. of Educ. v. Mergens, 496 U.S. 226, 246 (1990); see also Straights & Gays

for Equality v. Osseo Area Sch.-Dist. No. 279, 471 F.3d 908, 912 (8th Cir. 2006)
(concluding that the EAA was triggered because the school's cheerleading and synchronized
swimming groups were non-curricular student groups that were allowed to meet on school
grounds during non-instructional time).

150 81 F. Supp. 2d 1166, 1173 (C.D. Utah 1999); see also SIECUS, supra note 148

("In adherence to the new district rule, PRIDE was not allowed to meet on campus ....
However, the school still permitted other non-academic clubs, like the Shooting Club, a
prayer group, and the Dance Team to convene on school grounds ... the court decided that
PRIDE has the right to meet on campus." (commenting on White County High Sch. Peers



Columbia Journal of Gender and Law

parents, and school administrators to the option of banning all noncurricular
student groups, together with the heightened judicial scrutiny placed upon
schools to ensure that they enforce the ban on all noncurricular groups if
they exercise this option, effectively deter school districts from adopting
policies banning all noncurricular groups merely to prevent a GSA from
forming.

CONCLUSION

Prior to Morse v. Frederick, the trend in Supreme Court First
Amendment jurisprudence was toward granting schools increasing authority
to limit student speech when it violated their self-defined basic educational
missions. This Article exposed Morse's harsh criticism toward the basic
educational mission argument, and advocated interpreting this skepticism as
a rejection of this argument. Extending this Article's interpretation of
Morse to GSA litigation further clarifies the level of protection that the First
Amendment affords students to form GSAs within public schools and
strengthens claims by LGBTQ students that GSA prohibitions violate the
First Amendment. Therefore, although Morse is not an optimal decision for
free speech advocates, it may represent a step in the right direction.

Rising in Diverse Educ. v. White County Sch. Dist., No. 2:06-CV-29-WCO, 2006 WL
1991990 (N.D. Ga. July 14, 2006))).

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