Frederick v. Morse

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH FREDERICK, 

Plaintiff-Appellant, No. 03-35701

v.

 D.C. No.

CV-02-00008-J-JWS

DEBORAH MORSE; JUNEAU SCHOOL

BOARD, OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

Argued and Submitted

July 8, 2004—Anchorage, Alaska

Filed March 10, 2006

Before: Cynthia Holcomb Hall, Andrew J. Kleinfeld, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Kleinfeld

2461

2464 FREDERICK v. MORSE

COUNSEL

Douglas K. Mertz, Law Office of Douglas K. Mertz, Juneau,

Alaska, for the appellant.

David C. Crosby, P.C., Juneau, Alaska, for the appellees.

Sonja R. West (briefed), Davis, Wright, Tremaine, LLP, Los

Angeles, California, for amici curiae Student Press Law Cen-

ter, et al.

John M. Sedor (briefed), Bankston, Gronning, O’Hara, Sedor,

Mills, Givens & Heaphey, P.C., Anchorage, Alaska, for amici

curiae Association of Alaska School Boards, et al.

Judith K. Appel (briefed), Drug Policy Alliance, Oakland,

California, for amicus curiae Drug Alliance Policy.

OPINION

KLEINFELD, Circuit Judge:

This is a First Amendment student speech case.

Facts

One January day, Coca-Cola and other private sponsors

supported a “Winter Olympics Torch Relay” in Juneau,

Alaska. Students were released from school so that they could

FREDERICK v. MORSE 2465

watch the Olympic torch pass by. Joseph Frederick, then an

18-year-old senior at Juneau-Douglas High School, never

made it to school that morning because he got stuck in the

snow in his driveway, but he made it to the sidewalk, across

from the school, where the torch would pass by. He and some

friends waited until the television cameras would catch it,

then unfurled a banner reading “Bong Hits 4 Jesus.” Deborah

Morse, the school principal, crossed the street, grabbed and

crumpled up the banner, and suspended Frederick for ten

days. He appealed the suspension administratively, but it was

sustained. He then filed a 42 U.S.C. § 1983 action in the Fed-

eral District Court seeking declaratory and other relief.

There was disorder at the torch passing, but the uncontra-

dicted evidence is that it had nothing to do with Frederick and

his fellow sign-holders. Coca-Cola handed out samples in

plastic bottles, and students threw them at each other. Stu-

dents threw snowballs. Some students got into fights. But

Frederick and his group did not participate in these disorders,

saving their energy for what they hoped would be their

nationally televised sign display. And, the disruption that took

place occurred before the display of the banner, so it could not

have been caused by it.

In subsequent days, there was some pro-drug graffiti in the

high school which the principal thought was “sparked” by the

banner, but the principal did not rip down the sign at the rally

because she anticipated or was concerned about such possible

consequences. When Principal Morse crossed the street from

the school and confronted Frederick about the banner, he

asked “What about the Bill of Rights and freedom of speech?”

She told him to take the banner down because she “felt that

it violated the policy against displaying offensive material,

including material that advertises or promotes use of illegal

drugs,” and she grabbed it from him and crumpled it up.

In their answers to interrogatories, Appellees never contend

that the display of the banner disrupted or was expected to

2466 FREDERICK v. MORSE

disrupt classroom work. Asked for all the ways in which the

banner display disrupted the educational process, they said:

Display of the banner would be construed by many,

including students, district personnel, parents and

others witnessing the display of the banner, as advo-

cating or promoting illegal drug use which is incon-

sistent with the district’s basic educational mission

to promote a healthy, drug-free life style. Failure to

react to the display would appear to give the dis-

trict’s imprimatur to that message and would be

inconsistent with the district’s responsibility to teach

students the boundaries of socially appropriate

behavior.

There are some genuine disputes about the facts, but they

are not material to the resolution of this case. Frederick says

that the principal initially told him that he was suspended for

five days, but when he quoted Thomas Jefferson to her, she

doubled it. The principal says that she does not remember

whether he quoted Jefferson to her, but that was not why the

suspension was ten days. Frederick says that an assistant prin-

cipal told him that the Bill of Rights does not exist in schools

and does not apply until after graduation, but Principal Morse

says that the assistant principal “made some remark to the

effect that students do not have the same first amendment

rights as adults.” Frederick says that students were simply

released from school so that they could watch the privately

sponsored Olympic Torch being carried through a public

street, and a student affidavit he submitted pointed out that the

students did not have to obtain parental permission slips to be

released, as is the routine for field trips and other supervised

events off of the school premises. Principal Morse says that

the release was “an approved social event or class trip,” not-

ing that the pep band played as the torch passed the school,

the cheerleaders were out in uniform to greet the torchbearers,

and teachers supervised.

FREDERICK v. MORSE 2467

Frederick says (without contradiction) that he had not gone

to school that day prior to the banner display, that the banner

display was off school property across Glacier Avenue from

the campus, and that there were a lot of people, students and

non-students, there to watch the torch pass. Other students

filed affidavits saying that they were just released, not

required to stay together or with their teachers, except for the

gym class, and school administrators did not attempt to stop

students who got bored and left. Frederick says that the “Bong

Hits 4 Jesus” language was designed to be meaningless and

funny, in order to get on television, but Principal Morse says

that “bong hits” means puffs of marijuana and the words pro-

mote marijuana use.

Frederick was suspended for ten days, and appealed unsuc-

cessfully through all levels of available administrative and

school board review. He sued under 42 U.S.C. § 1983 for a

declaratory judgment that his First Amendment rights had

been violated, an injunction to remove the reference to the ten

day suspension from his school records, damages, and other

relief. The district court granted summary judgment for the

Appellees, on the grounds that no constitutional rights were

violated and the Appellees had qualified immunity even if

they were. Frederick appeals.

Analysis

We review a grant of summary judgment de novo.1 The dis-

trict court reasoned that Bethel School District No. 403 v. Fra-

ser,2 as opposed to Tinker v. Des Moines Independent Com-

munity School District,3 governed Frederick’s speech. We dis-

agree.

1

Holley v. Crank, 400 F.3d 667, 672 (9th Cir. 2005).

2

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685 (1986)

(holding that the school district permissibly sanctioned a student for his

sexually explicit speech at a school assembly).

3

Tinker v. Des Moines Independent Community School District, 393

U.S. 503, 514 (1969) (holding that students retain First Amendment

expression rights at school, which may be suppressed only if authorities

reasonably “forecast substantial disruption of or material interference with

school activities”).

2468 FREDERICK v. MORSE

One amicus, Drug Policy Alliance, argues that we should

analyze this not as a student speech case, but simply as speech

on a public sidewalk. That would make the case analogous to

a student having an after-school job at a video store that rents

out Cheech and Chong tapes, or a student driving a car on

public streets with a “Bong Hits 4 Jesus” bumper sticker.

Were this factually such a case, the law would be easy indeed,

but the facts established by the submissions on summary

judgment make this a student speech case. Even though Fred-

erick never got to school that morning, that was only because

he got stuck in his driveway because of the snow. School had

started and the students were released to watch the Olympic

torch pass. And even though supervision of most students was

minimal or nonexistent, the school could have supervised

them more if it chose to, as it did with the gym class and per-

haps the pep band and cheerleaders. Frederick was a student,

and school was in session.

There is no genuine issue of fact material to the decision.

Frederick’s display was not in a class. Frederick and the other

students who displayed the sign did not participate in any of

the disorderly conduct of the students who threw snowballs or

plastic Coca-Cola miniature sample bottles. The school prin-

cipal and school board do not claim that the display disrupted

or was expected to disrupt any classroom work. They concede

that their objection to the display, and the reason why the

principal ripped down the banner, was not concern that it

would cause disruption but that its message would be under-

stood as advocating or promoting illegal drug use.4 Frederick

4

The issue of “illegal” drug use is a little complicated under Alaska law.

Alaska has an express constitutional right to privacy that the federal con-

stitution does not have. The Alaska Supreme Court has held unanimously

that the state had the burden of justifying its statute prohibiting marijuana

use, and “no adequate justification for the state’s intrusion into the citi-

zen’s right to privacy by its prohibition of possession of marijuana by an

adult for personal consumption in the home has been shown.” Ravin v.

State, 537 P.2d 494, 511 (Alaska 1975), followed in Noy v. State, 83 P.3d

FREDERICK v. MORSE 2469

says that the words were just nonsense meant to attract televi-

sion cameras because they were funny. We nevertheless pro-

ceed on the basis that the banner expressed a positive

sentiment about marijuana use, however vague and nonsensi-

cal.

Thus, the question comes down to whether a school may,

in the absence of concern about disruption of educational

activities, punish and censor non-disruptive, off-campus

speech by students during school-authorized activities

because the speech promotes a social message contrary to the

one favored by the school. The answer under controlling,

long-existing precedent is plainly “No.”

Because this is a section 1983 case in which the Appellees

asserted qualified immunity, we are required to proceed in

accord with Saucier v. Katz5 and determine first whether Fred-

erick’s constitutional rights were violated. This is an “as

applied” challenge, not a “facial” challenge. Frederick argues

that his rights were violated as the regulations were applied to

him.6 Under Tinker v. Des Moines Independent Community

School District,7 they plainly were.

545 (Alaska Ct. App. 2003). Frederick was an adult citizen of Alaska, not

a minor, at the time he displayed the sign. The Alaska Supreme Court has

also taken a libertarian position regarding schoolchildren, holding that no

“compelling state interest” justified a school regulation on boys’ hair

length. Breese v. Smith, 501 P.2d 159 (Alaska 1972). Alaska has had

repeated referenda about whether, and to what extent, to criminalize or

legalize marijuana, see Noy, 83 P.3d at 545-46, so messages about mari-

juana have a degree of political salience to them and might be understood

as political advocacy. We need not reach any questions of Alaska law.

5

Saucier v. Katz, 533 U.S. 194 (2001).

6

See Vlasak v. Superior Court of Cal. ex rel. County of Los Angeles, 329

F.3d 683, 688 (9th Cir. 2003).

7

Tinker v. Des Moines Independent Community School District, 393

U.S. 503 (1969).

2470 FREDERICK v. MORSE

[1] In Tinker, the Supreme Court held that wearing black

arm bands in high school, “unaccompanied by any disorder or

disturbance on the part of [the arm-band wearers],” and unac-

companied by “interference, actual or nascent, with the

schools’ work or of collision with the rights of other students

to be secure and to be let alone,” was constitutionally pro-

tected speech.8 Tinker held that “the prohibition of expression

of one particular opinion, at least without evidence that it is

necessary to avoid material and substantial interference with

schoolwork or discipline, is not constitutionally permissible.”9

[2] Tinker disposes of the School Board’s argument that

“school administrators were entitled to discipline Frederick’s

attempt to belittle and undercut this critical mission” of pre-

venting use of illegal drugs by a sign that was “a parody of

the seriousness with which the school takes its mission to pre-

vent use of illegal drugs.” Under Tinker, a school cannot cen-

sor or punish students speech merely because the students

advocate a position contrary to government policy. The Tin-

ker armbands were about war. Government has no mission in

which victory is so important as war. The federal government

was, at the time of the facts giving rise to the Tinker case,

prosecuting a war. Government policy was to support and

advance the effort to win the war. The black armbands in Tin-

ker expressed hostility to the war. By doing so, they legiti-

mized opposition and undermined support for the war. Yet the

students in high school had a constitutional right to express

their opposition to this critically important mission of the fed-

eral government.

The two leading Supreme Court cases that have held

against students claiming First Amendment rights to speak in

a way unacceptable to school administrators are distinguish-

able. Bethel School District No. 403 v. Fraser10 held that a

8

Id. at 508.

9

Id. at 511.

10

Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).

FREDERICK v. MORSE 2471

high school student did not have a First Amendment right to

give a sexually suggestive nominating speech for a candidate

for student office at a school assembly that “was part of a

school-sponsored educational program in self-government,”

where disruption immediately ensued as the student gave the

speech.11 Fraser holds that high school students’s rights to

free speech in school are not coextensive with adults’s rights,

and “pervasive sexual innuendo” that is “plainly offensive . . .

to any mature person” can be marked off as impermissible

incivility within the school context.12 Fraser focuses upon the

sexual nature of the offensiveness in the in-school speech that

can be punished, as contrasted with the “political viewpoint”

of the speech protected in Tinker.13 Our case differs from Fra-

ser in that Frederick’s speech was not sexual (sexual speech

can be expected to stimulate disorder among those new to

adult hormones), and did not disrupt a school assembly. Also,

it is not so easy to distinguish speech about marijuana from

political speech in the context of a state where referenda

regarding marijuana legalization repeatedly occur and a con-

troversial state court decision on the topic had recently issued.14

The phrase “Bong Hits 4 Jesus” may be funny, stupid, or

insulting, depending on one’s point of view, but it is not

“plainly offensive” in the way sexual innuendo is.

Hazelwood School District v. Kuhlmeier15 is similarly dis-

tinguishable. In Kuhlmeier, the Supreme Court held that high

school students did not have a First Amendment right to pub-

lish articles on pregnancy and divorce in a school newspaper

over the principal’s objection, where the newspaper was pro-

duced in a class on journalism, edited by the journalism

teacher as part of the teaching of the class, and paid for with

11

Id. at 677-78.

12

Id. at 683.

13

Id. at 685.

14

See Noy v. State, 83 P.3d 545 (Alaska Ct. App. 2003).

15

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

2472 FREDERICK v. MORSE

school money.16 The Court distinguished Tinker on the ground

that “[t]he question whether the First Amendment requires a

school to tolerate particular student speech — the question

that we addressed in Tinker — is different from the question

whether the First Amendment requires a school affirmatively

to promote particular student speech.”17 This student newspa-

per was “part of the school curriculum.”18 Exclusion of any

First Amendment duty to “promote” a student viewpoint

means that a school necessarily retains authority to refuse to

“sponsor” speech such as Frederick’s, which arguably pro-

motes drug use.19 Kuhlmeier does not control the case at bar,

however, because Frederick’s pro-drug banner was not spon-

sored or endorsed by the school, nor was it part of the curricu-

lum, nor did it take place as part of an official school activity.

Kuhlmeier might apply had Frederick insisted on making his

“Bong Hits 4 Jesus” banner in art class, but that is not what

the record shows. His display took place out of school while

students were released so that they could watch a Coca-Cola

and Olympics activity.

Leaving Kuhlmeier out of the analysis, because no sponsor-

ship or curricular activity was involved, the question is how

far Tinker goes to protect such student speech as Frederick’s,

and how far Fraser goes to protect school authority to censor

and punish student speech that “would undermine the school’s

basic educational mission.”20 There has to be some limit on

the school’s authority to define its mission in order to keep

Fraser consistent with the bedrock principle of Tinker that

students do not “shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.”21 Had the

16

Id. at 268-73.

17

Id. at 270-71.

18

Id. at 271.

19

Id. at 272.

20

Fraser, 478 U.S. at 685.

21

Tinker, 393 U.S. at 506.

FREDERICK v. MORSE 2473

school in that case defined its mission as instilling patriotic

duty or promoting support for national objectives, it still could

not have punished the students for wearing the black arm-

bands. All sorts of missions are undermined by legitimate and

protected speech — a school’s anti-gun mission would be

undermined by a student passing around copies of John R.

Lott’s book, More Guns, Less Crime;22 a school’s anti-alcohol

mission would be undermined by a student e-mailing links to

a medical study showing less heart disease among moderate

drinkers than teetotalers; and a school’s traffic safety mission

would be undermined by a student circulating copies of arti-

cles showing that traffic cameras and automatic ticketing sys-

tems for cars that run red lights increase accidents.23

[3] Public schools are instrumentalities of government, and

government is not entitled to suppress speech that undermines

whatever missions it defines for itself. What schools are enti-

tled to do, as Fraser makes clear, is suppress speech that dis-

rupts the good order necessary to conduct their educational

function. No educational function was disrupted by the banner

displayed during the Coca-Cola sponsored Olympics event.

One can hypothesize off-campus events for which the stu-

dents might be released that would be educational and curric-

ular in nature and would be disrupted by speech such as

Frederick’s. For example, on a school field trip as part of the

social studies curriculum to observe a court in session, it

might be the case that the school could ban the wearing of

Cohen’s famous jacket.24 But a Coca Cola promotion as the

Olympic torch passed by on a public street was not such an

event.

22

John R. Lott, Jr., More Guns, Less Crime (1998).

23

See, e.g., Virginia Transportation Research Council, An Evaluation of

Red Light Camera (Photo-Red) Enforcement in Virginia (2005), http://

virginiadot.org/vtrc/main/online_reports/05-r21.htm.

24

Cf. Cohen v. California, 403 U.S. 15 (1971).

2474 FREDERICK v. MORSE

We have no Ninth Circuit authority precisely on point, but

what we do have is consistent with the above analysis. In

Burch v. Barker,25 we held that a school could not require

prior approval for a student newspaper produced outside the

school before it was distributed on school grounds to students,

distinguishing Kuhlmeier because “no one could associate

[the newspaper] with school sponsorship or endorsement.”26

Burch sorts the cases by the “distinction between school-

sponsored as opposed to non-school-sponsored expression.”27

The school board and administrators properly control “what

is taught,” but “no similar content control is justified for com-

munication among students which is not part of the educa-

tional program.”28 We held that the school should be enjoined

to “purge the plaintiff-students’ records of reprimands for vio-

lating the policy” of the school,29 no doubt the source of Fred-

erick’s prayer for similar relief in this case.

We again upheld student speech rights in Chandler v.

McMinnville School District.30 When replacements were used

during a teachers’s strike, some students wore buttons calling

the replacement teachers “scabs,” and were suspended for

refusing to take them off. Reversing the district court’s dis-

missal of the student’s complaint, we sorted the high school

student speech cases in the following manner:

We have discerned three distinct areas of student

speech from the Supreme Court’s school precedents:

(1) vulgar, lewd, obscene, and plainly offensive

speech, (2) school-sponsored speech, and (3) speech

that falls into neither of these categories. We con-

25

Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988). F

26

Id. at 1150.

27

Id. at 1157.

28

Id.

29

Id. at 1159.

30

Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir.

1992).

FREDERICK v. MORSE 2475

clude, as discussed below, that the standard for

reviewing the suppression of vulgar, lewd, obscene,

and plainly offensive speech is governed by Fraser,

school-sponsored speech by [Kuhlmeier], and all

other speech by Tinker.31

[4] Frederick’s “Bong Hits 4 Jesus” falls into the third cate-

gory — the speech controlled by Tinker. School officials have

broader authority, we held in LaVine v. Blaine School Dis-

trict, where they act “not to punish . . . but to avert perceived

potential harm.”32 But in Frederick’s case, the school officials

concede that they acted to punish speech inconsistent with the

school’s mission, not to avoid potential harm such as the

feared school shooting in LaVine.

[5] Our sister circuits have similarly held that student

speech that is neither plainly offensive nor school-sponsored

can be prohibited only where the school district demonstrated

a risk of substantial disruption. For example, in Newsom v.

Albemarle County School Board,33 the Fourth Circuit

addressed a school’s ban on clothing depicting, among other

images, weapons. Newsom had previously been required by

an assistant principal to change out of a National Rifle Asso-

ciation T-shirt depicting “men shooting guns,” and sought a

preliminary injunction to prevent enforcement of the dress

code.34 As in Frederick’s case, the school relied on the fact

that the T-shirt conflicted with a “message” it was trying to

impart, namely that “Guns and Schools Don’t Mix.”35 The

Fourth Circuit straightforwardly applied Tinker, distinguished

Fraser and Kuhlmeier, and concluded that, because there was

no evidence that clothes showing or mentioning weapons had

31

Id. at 529 (citations omitted).

32

LaVine v. Blaine School District, 257 F.3d 981, 983 (9th Cir. 2001).

33

Newsom v. Albemarle County School Board, 354 F.3d 249 (4th Cir.

2003).

34

Id. at 253-54.

35

Id. at 252.

2476 FREDERICK v. MORSE

ever substantially disrupted school operations, the school

could not ban this expressive display of speech without

impinging on the student’s First Amendment rights.36 The

court wryly noted that the school’s rigid dress code would

prohibit a student from wearing a T-shirt depicting the insig-

nia of a military unit in which a sibling might be serving, or

even the official state seal.37

Likewise, in Scott v. School Board of Alachua County,38 the

Eleventh Circuit upheld suspensions imposed on students for

displaying the confederate flag on school premises, where the

school board’s ban on confederate symbols was premised on

the history of racial tension and fights at the school.39 The

Third, Sixth, and Tenth Circuits have similarly applied Tin-

ker’s requirement that the speech or symbols to be censored

must pose a legitimate likelihood of disruption.40

In support of their argument that disciplining Frederick was

appropriate, Appellees point to Boroff v. Van Wert City Board

of Education,41 a Sixth Circuit case which upheld a high

36

Id. at 260.

37

Id.

38

Scott v. School Board of Alachua County, 324 F.3d 1246 (11th Cir.

2003).

39

Id. at 1249.

40

West v. Derby Young Unified School Dist. No. 260, 206 F.3d 1358,

1366-67 (10th Cir. 2000) (upholding ban on confederate imagery, given

past racial tensions and confrontations); Melton v. Young, 465 F.2d 1332,

1334-35 (6th Cir. 1972) (same); see also Sypniewski v. Warren Hills

Regional Bd. of Educ., 307 F.3d 243, 257 (3rd Cir. 2002) (finding, for the

purposes of preliminary injunction, inadequate support for school board’s

position that T-shirts bearing the term “redneck” posed a “well-founded

fear of genuine disruption”); Castorina ex rel. Rewt v. Madison County

Sch. Bd., 246 F.3d 536, 544 (6th Cir. 2001) (remanding for factual deter-

mination whether there had been racial incidents related to confederate

flags).

41

Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir.

2000).

FREDERICK v. MORSE 2477

school dress code that was applied to prohibit the wearing of

Marilyn Manson T-shirts. The T-shirts contained pro-drug

and anti-religious messages and imagery.42 In Boroff, the

Sixth Circuit interpreted Fraser to grant the school wide-

ranging discretion to determine the appropriateness or inap-

propriateness of certain messages at school. The court con-

cluded that clothing may be banned when it contains

“symbols and words that promote values that are [ ] patently

contrary to the school’s educational mission.”43 We need not

pass on whether the clothing ban in Boroff could be upheld

under our precedent. Nonetheless, to the degree Boroff

implies that student speech may be prohibited as “plainly

offensive” whenever it conflicts with a vaguely-defined “edu-

cational mission,” we decline to follow it.44

However, even if we were inclined to adopt Boroff, this

case is distinguishable in one key respect. Boroff sought to

42

Id. at 469-70.

43

Id. at 470. The school defined its implicated “educational mission” as

“to be respectful of others and others’ beliefs.” Id. at 469.

44

The word “offensive” is not a catch-all to embrace any speech that

might offend some hearers. Nor was Fraser an invitation to censor and

punish any speech that offends school authorities. For example, “scab” is

an offensive term, intended to be derogatory, for replacement workers dur-

ing a strike. Calling replacement teachers “scabs” undermined the school’s

“mission” to function despite the strike and enable the replacement work-

ers to exercise their authority as teachers and was personally insulting to

the replacement teachers. Yet in McMinnville, we held that offensiveness

in this sense does not take a case from Tinker to Fraser. By Appellees’

standard, distributing photocopies of the Alaska Supreme Court decision

in Ravin v. State, in which it declared that there is “no adequate justifica-

tion for the state’s intrusion into the citizen’s right to privacy by its prohi-

bition of possession of marijuana,” 537 P.2d at 511, would also undermine

the school’s anti-drug mission. However, it could not seriously be con-

tended that handing out copies of Ravin on the sidewalk across the street

from the school while students were released from classes could be pun-

ished. Fraser only enables schools to prevent the sort of vulgar, obscene,

lewd, or sexual speech that, especially with adolescents, readily promotes

disruption and diversion from the educational curriculum.

2478 FREDERICK v. MORSE

wear his T-shirt in the classroom, where its message would be

more likely to interfere with the school’s core educational

mission. Frederick’s banner, by comparison, was displayed

outside the classroom, across the street from the school, dur-

ing a non-curricular activity that was only partially supervised

by school officials. It most certainly did not interfere with the

school’s basic educational mission.45

[6] We therefore hold that Frederick’s punishment for dis-

playing his banner is best reviewed under Tinker, rather than

Fraser or Kuhlmeier. Tinker requires that, to censor or punish

student speech, the school must show a reasonable concern

about the likelihood of substantial disruption to its educational

mission. Appellees conceded that the speech in this case was

censored only because it conflicted with the school’s “mis-

sion” of discouraging drug use. That reason fails to meet the

bar.

[7] Appellees’s conduct violated Frederick’s First Amend-

ment rights. Because his speech is protected by the federal

constitution, we need not reach the question of whether it is

protected by the Alaska Constitution.

[8] We next must address whether, for the purposes of

money damages,46 Appellee Morse is entitled to qualified

immunity. The law “provide[s] government officials perform-

ing discretionary functions with a qualified immunity, shield-

ing them from civil damages liability as long as their actions

could reasonably have been thought consistent with the rights

they are alleged to have violated.”47 The analysis adopted by

45

We do not reach the question of whether the school could have pro-

hibited Frederick from displaying his banner on school grounds or wearing

a T-shirt that read “Bong Hits 4 Jesus.”

46

Qualified immunity does not apply to suits for declaratory or injunc-

tive relief. See Los Angeles Police Protective League v. Gates, 995 F.2d

1469, 1472 (9th Cir. 1993).

47

Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citations omitted).

FREDERICK v. MORSE 2479

the Supreme Court in Saucier v. Katz requires that we employ

a three-part test to determine whether qualified immunity

applies.48 First, we must determine whether the “facts alleged

show [Morse’s] conduct violated a constitutional right.”49 Sec-

ond, we must determine whether the right was clearly estab-

lished at the time of the alleged violation.50 Finally, we must

determine “whether it would be clear to a reasonable [princi-

pal] that [her] conduct was unlawful in the situation [she] con-

fronted.”51

[9] The first question, whether Morse’s conduct violated a

constitutional right, has been addressed above in detail and

answered in the affirmative. We next must determine whether

the violated right was clearly established. This inquiry is a

pure question of law.52 Although for a right to be clearly

established “[t]he contours of the right must be sufficiently

clear that a reasonable [principal] would understand [that]

what [she] is doing violates that right,” there is no require-

ment that we identify a prior identical action.53 Indeed, even

if there were not binding precedent in this case, we would be

justified in examining a wide range of relevant legal authority,

such as the law of other circuits.54 As we have already shown,

the only times other circuit courts have held that conduct like

Morse’s is not a constitutional violation, they have done so

under facts “distinguishable in a fair way from the facts pre-

sented in the case at hand.”55 In this case, however, we need

not look so far afield, because there exists clear, well-

established law of the Supreme Court and of this circuit that

48

Saucier v. Katz, 533 U.S. 194, 201 (2001).

49

Id.

50

Id.

51

Id. at 202.

52

See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996).

53

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

54

See Elder v. Holloway, 510 U.S. 510, 512, 516 (1994).

55

Saucier, 533 U.S. at 202.

2480 FREDERICK v. MORSE

governs the panoply of student speech cases that might face

a school principal: the law of Tinker, Fraser, Kuhlmeier,

Burch, and McMinnville.

[10] As we explicitly discussed in McMinnville, and also

noted supra: vulgar, lewd, and obscene speech is governed by

Fraser, school-sponsored speech is governed by Kuhlmeier,

and all other student speech is governed by Tinker.56 Under

Tinker, students retain First Amendment expression rights at

school unless authorities reasonably “forecast substantial dis-

ruption of or material interference with school activities,”

which no one contends in this case.57 Furthermore, Morse

readily admits to being aware of the relevant law, indicating

that in her “advanced school law” course she studied “Tinker,

[Kuhlmeier], Bethel, Fraser, all of the pertinent case law

related to student rights or . . . related to schools.” The law of

which Morse was aware clearly established Frederick’s con-

stitutional free speech right. In addition, in McMinnville we

succinctly explained how to apply the various Supreme Court

doctrines of which Morse was aware, thus ensuring that opac-

ity in this particular corner of the law has been all but banished.58

For purposes of the second prong of the Saucier qualified

immunity test, Frederick’s right was clearly established.

[11] The only remaining inquiry, therefore, requires that we

determine whether Morse “could . . . have reasonably but mis-

takenly believed that [ ] her conduct did not violate a clearly

established constitutional right.”59 We conclude that she could

not have. Once we have held that “the law was clearly estab-

lished, the immunity defense ordinarily should fail, since a

reasonably competent public official should know the law

governing [the official’s] conduct.”60 And indeed, even lack of

56

McMinnville, 978 F.2d at 529.

57

Tinker, 393 U.S. at 514.

58

McMinnville, 978 F.2d at 529.

59

Saucier, 533 U.S. at 205.

60

Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).

FREDERICK v. MORSE 2481

knowledge of the basic constitutional rights would not pro-

vide a basis for immunity.61 This is no case of ignorance. The

law was clear, and Morse was aware of it. The law of this cir-

cuit has provided explicit directives such that officials may

determine which Supreme Court standards govern which

types of potential student behavior. No novel question is

posed on the basis urged by defendants—that “Bong Hits 4

Jesus” promoted a view contrary to government policy—

because the armbands in Tinker raised the same concerns. The

law of Tinker, Fraser, Kuhlmeier, Burch, and McMinnville is

so clear and well-settled that no reasonable government offi-

cial could have believed the censorship and punishment of

Frederick’s speech to be lawful.62 In fact, there is nothing in

the authorities that justifies what the school did, and no rea-

sonable official could conclude otherwise. Morse fails the

third prong of the Saucier test.

[12] Thus, having determined that the “facts alleged show

[Morse’s] conduct violated a constitutional right,” that “the

right was clearly established,” and that “it would be clear to

a reasonable [principal] that [her] conduct was unlawful in the

situation [she] confronted,” we hold that defendant Morse is

not entitled to qualified immunity.63

The judgment of the district court is VACATED and the

case is REMANDED.

61

See Wood v. Strickland, 420 U.S. 308, 321-22 (1975).

62

See Vance v. Barrett, 345 F.3d 1083, 1094 (9th Cir. 2003).

63

Saucier, 533 U.S. at 201-02.