District & Appeals Court Decisions Citing
Morse v. Frederick (2007)
(above) U.S. Circuit Court map
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Key
RED: Only broad interpretations of Morse
YELLOW: Both broad and narrow interpretations of Morse
GREEN: Only narrow interpretations of Morse
BLUE: Incidental interpretations of Morse
GRAY: No interpretations of Morse
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Narrow, Broad, or Incidental?
The following chart summarizes fifteen student First Amendment cases that cited Morse v. Frederick. In cases with narrow interpretations of Morse, the judge(s) specifically chose not to extend Morse past illegal drug use. In cases with broad interpretations, the judge(s) extended Morse past illegal drug use to include speech advocating other illegal actions. In cases with incidental interpretations of Morse, the judge(s) mentioned Morse but did not apply it in the ruling.
You can find your court circuit on the map above. The federal court system contains 94 district courts, twelve appeals courts, and the Supreme Court. Parties can choose to appeal decisions made in the district courts; these cases then move to the appeals court level. Parties can also appeal decisions made at the appeals court level, but the Supreme Court chooses which cases it will hear each year. Read the following chart to see how lower federal courts have interpreted Morse in your circuit and in other circuits. Please note, however, that some circuits have not applied Morse. We can only infer what these circuits might do based on the other courts’ decisions.
| CASE NAME | DESCRIPTION | NARROW, BROAD, OR INCIDENTAL? | CIRCUIT & LEVEL |
| Doninger v. Niehoff (2008) | A student was suspended from school and banned from running for student government after publishing an angry blog post about the principal, who canceled an event the student helped plan. | INCIDENTAL—The judges sided with the school, but did so under the Tinker standard. They referenced and summarized Morse, but did not extend its interpretation past illegal drug use. | 2nd Circuit—Connecticut (Appeals Court) |
| R.O., et al., v. Ithaca City School District (2011) | Students published a political cartoon satirizing the ineffectiveness of the school’s sex education courses. The cartoon was censored from a school publication and from an independent student publication. | INCIDENTAL—The judges sided with the school, but did so under the Tinker standard. They referenced and summarized Morse, but did not extend its interpretation past illegal drug use. | 2nd Circuit—New York (Appeals Court) |
| Wisniewski v. Board of Education of the Weedsport Central School District (2007) | A student’s AOL buddy icon on his home computer depicted his English teacher being shot, with a caption about killing the teacher. He was suspended. | INCIDENTAL—The judges upheld the student’s suspension, stating that “As in Morse, the student in the…case was not disciplined for conduct that was merely ‘offensive,’ or merely in conflict with some view of the school’s ‘educational mission.’” Thus, Morse did not apply to the ruling. | 2nd Circuit—New York (Appeals Court) |
| Layshock v. Hermitage School District (2010) | From home, a high school senior created a Myspace profile mocking his principal. The student was suspended. |
NARROW—The district judge directly cited Alito’s concurring opinion in Morse, which states that Morse only applies to illegal drug use. The judge denied the school district’s claim that the student undermined the school’s educational mission. This case’s outcome was updated with a 3rd Circuit Appeals Court en banc decision. The initial ruling was overturned, and the judges again cited Alito’s concurring opinion in a narrow holding. |
3rd Circuit—Pennsylvania (District Court) |
| B.H. v. Easton Area School District (2013) | Two middle school students wore bracelets proclaiming “I (heart sign) boobies” for Breast Cancer Awareness Day. The school suspended the students. | NARROW—The judges sided with the students and cited Morse 117 times in the holding. | 3rd Circuit—Pennsylvania (Appeals Court) |
| Miller v. Penn Manor School District (2008) | A student wore a shirt with the image of a handgun and the words “terrorist hunting permit” on it. |
BROAD—The judge ruled against the student’s ability to wear the shirt, stating, “Based upon Morse, speech that promotes illegal behavior may also be restricted.” |
3rd Circuit—Pennsylvania (District Court) |
| Depinto v. Bayonne Board of Education (2007) | Two students wore buttons with the words “No School Uniforms” imposed over a Hitler Youth background photo. | NARROW—The judge warned the Morse should not be interpreted broadly to mean all offensive speech, but just speech regarding illegal drug use. | 3rd Circuit—New Jersey (District Court) |
| J.S. v. Blue Mountain School District (2009) | A student created a fake Myspace profile for her principal, on which she indicated his interests in pornography and pedophilia. |
NARROW—In siding with the school, the district court handed down a broad interpretation, stating that the student’s fake Myspace profile “is also akin to the speech that promoted illegal actions in the Morse case.” This case’s outcome was updated with a 3rd Circuit Appeals Court en banc decision. The initial ruling was overturned, and the appeals court judges cited Alito’s concurring opinion in a narrow holding. |
3rd Circuit—Pennsylvania (District Court) |
| Hardwick v. Hayward (2013) | A South Carolina school banned T-shirts depicting the Confederate flag from its dress code. | NARROW—The judges upheld the school’s dress code, but they did so under the Tinker standard and expressly rejected the district courts’ broad interpretation of the Morse ruling. | 4th Circuit—South Carolina (Appeals Court) |
| Kowalski v. Berkeley County Schools (2011) | High school students were punished for creating an online Myspace group targeting another student with sexually-charged insults. | NARROW—The judges sided with the school, but using the Tinker standard. The Court mentioned Morse several times, but specifically did not extend its reach beyond illegal drug usage. | 4th Circuit—West Virginia (Appeals Court) |
| Ponce v. Socorro Independent School District (2007) | A high school student wrote numerous violent entries in a diary. The student claims the entries were works of fiction, but the school recommended placing the student in alternative school. | BROAD—The Court of Appeals applied Morse to cases of speech that endangers the safety of students. | 5th Circuit—Texas (Appeals Court) |
| Lowery v. Jefferson County Board of Education (2007) | Four high school football players circulated a petition to have their coach replaced. | NARROW—The judges provided a lengthy interpretation of Morse, specifically quoting Alito’s concurring opinion that Morse only extends to illegal drug use. | 6th Circuit—Tennessee (Appeals Court) |
| Barr v. Lafon (2008) | Complications and fighting arose after the school dress code was updated to ban the Confederate flag and other racially divisive symbols. | NARROW—The Court sided with the school, but under the Tinker standard. The judges leaned heavily on Alito’s concurring opinion that Morse only extends to illegal drug use. | 6th Circuit—Tennessee (Appeals Court) |
| Nuxoll v. Indian Prairie School District #204 (2008) | Two students wished to wear anti-gay T-shirts that read, “Be Happy, Not Gay.” | BROAD—The Court relied on the Tinker standard in ruling against the students, but they did so by using Morse as justification: substantial disruption, according to the judge, can be psychological, not just physical. | 7th Circuit—Illinois (Appeals Court) |
| Boim v. Fulton County School District (2007) | A high school student transcribed a violent dream sequence (involving her shooting her math teacher on school grounds) into her personal notebook. Administrators discovered the notebook and suspended her. | BROAD—The judge in this case directly quoted Morse and went on to assert that the same justification for censoring speech that promotes illegal drug use can be applied to speech that threatens violence at school. | 11th Circuit—Georgia (District Court) |
Sources: SPLC.org (legal analysis), and caselaw.findlaw.com (case information)
Image: http://tallytaxman.com/wp-content/uploads/2012/09/circuit_map.gif