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.