BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska's Capital

384 Pages·2010·2.297 MB·English

by  James C. Foster

bong hits 4 jesus

Bong Hits 4 Jesus
A Perfect Constitutional Storm
in Alaska’s Capital
• • •
James C. Foster
University of Alaska Press
Fairbanks
© 2010 University of Alaska Press
All rights reserved
University of Alaska Press
P.O. Box 756240
Fairbanks, AK 99775-6240
second printing 2011
ISBN 978-1-60223-089-7
Library of Congress Cataloging-in-Publication Data
Foster, James C. (James Carl)
BONG HiTS 4 JESUS : a perfect constitutional storm in Alaska’s capital /
by James C. Foster.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-60223-089-7 (pbk. : alk. paper)
1. Morse, Deborah, school principal—Trials, litigation, etc. 2. Frederick, Joseph—Trials,
litigation, etc. 3. City and Borough of Juneau School District—Trials, litigation, etc.
4. Freedom of speech—United States. 5. Students—Legal status, laws, etc.—Alaska.
6. Students—Legal status, laws, etc.—United States. I. Title.
KF229.M67F67 2010
342.7308’53—dc22
2010006347
This publication was printed on acid-free paper that meets the minimum
requirements for ANSI / NISO Z39.48-1992 (R2002) (Permanence of Paper
for Printed Library Materials).
Cover design by Dennis Roberts
Clay Good’s front cover photo of students hoisting the BONG HiTS 4 JESUS banner
used by permission of ZUMA Press, Inc.
Brian Wallace’s back cover photo of Joseph Frederick used by permission of
Polaris Images Corporation.
Art Lien’s back cover drawing of Doug Mertz arguing before the U.S. Supreme Court
used with kind permission of the artist, © Art Lien.
Evan Vucci’s back cover photo of Deborah Morse standing in front of the U.S. Supreme
Court, accompanied by former drug policy czar Barry McCaffrey and her lawyer Kenneth
Starr used by permission of AP/Wide World Photos.
Charles Barsotti’s cartoon used by permission of the Cartoon Bank, Condé Nast
Publications, © Charles Barsotti/Condé Nast Publications/www.cartoonbank.com.
Contents
• • •
Acknowledgments vii
Introduction 1
Prologue: A Tale of Three Wars and Zero Tolerance 7
1. Harmonic Convergence in Juneau: [In]famous for Fifteen Minutes 11
2. The Tentative Tinker Rule 41
3. From Black Armbands to Colliding Tubas 57
4. A New Century, a Different Court 75
5. The Ninth Circuit Weighs In 91
6. No-So-Brief Battles, Not Such Odd Bedfellows 113
7. “Up in Smoke at the High Court” 145
8. Five Takes on a Single Event 171
9. Lost Opportunities and Failure of Imagination 195
Endnotes 227
Works Cited 321
List of Interviews 349
Table of Cases 351
Index 355
Purity is on the edge of evil, they say.
—Ursula K. Le Guin, Always Coming Home
We are seeking, in the widened sense of the term in which it encompasses very much
more than talk, to converse with [natives], a matter a great deal more difficult, and not
only with strangers, than is commonly recognized.
—Clifford Geertz, The Interpretation of Cultures
The limits of my language mean the limits of my world.
—Ludwig Wittgenstein, Tractatus Logico-Philosophicus
Acknowledgments
• • •
When i embarked on this journey, little did I know where the trip would take
me or how long I would travel. What began in the fall of 2007 as a run-of-the-mill
conference discussion about a quirky Supreme Court decision evolved into a two-and-a-
half-year odyssey. The deeper I investigated the backstory of Morse v. Frederick, 551 U.S. 393
(2007), the more antecedent circumstances and events came to the fore. Beyond context
simply becoming crucial to understanding that particular case, eventually the Supreme
Court case became my vehicle for exploring the context itself. My journey immersed me in
the roots of Juneau’s ongoing schism over student rights and school authority. Ultimately,
my journey yielded lessons about the importance of keeping civil civic conversation
going—and about the perils of not doing so.
Along my journey lots of folks have enabled me to keep this particular conversation
going. I am delighted to thank them at the outset.
The book you are reading was made possible by the willingness of Elisabeth Dabney,
University of Alaska (UA) Press managing editor for acquisitions, and her colleagues serv-
ing on the UA Press editorial board to embrace my project in its fairly early stages. This book
almost died abornin’. Having been curtly informed, in no uncertain terms, by series editors
at another university press that prominently publishes Supreme Court case studies, that a
book about Morse v. Frederick “had no place on their list,” I was chagrined but undaunted. I
persisted, writing the first couple of chapters and submitting them to UA Press. What bet-
ter place, I reasoned, for a book about a Supreme Court case originating in Juneau, Alaska,
than that state’s university press? Elisabeth agreed, and served as enthusiastic “matchmaker.”
You’re holding the result. Thank you, Elisabeth.
Twenty-four extensive interviews, which I conducted over the course of about a year,
figure centrally in my telling the story of a “perfect constitutional storm in Alaska’s capital.”
When I began thinking about who I wanted to talk with, I drew up an ambitious list. My list
included jurists involved in the prolonged litigation, from U.S. District Court Judge John W.
vii
viii Acknowledgments
Sedwick on up to U.S. Supreme Court Justice John Paul Stevens—with lots of their judicial
colleagues in between. An exchange of e-mails with colleague Steve Wasby served to dis-
abuse me of my naive aspirations. Stalwart student of appellate courts, and disabuser par
excellence, Steve administered a pointed, abbreviated course in judicial ethics and interview
protocols, bringing me up short and causing me to rethink who I would interview—and
why. Thank you, Steve.
All work with human subjects in a university setting must be submitted to, and approved
by, the Institutional Review Board (IRB) of the institution with which the principal inves-
tigator is affiliated. Those IRB procedures, which are salutary and necessary, also can be a
labyrinthine distraction. Oregon State University IRB Program Representative Donna Ste-
venson shepherded me through submitting my original proposal, and then renewing its
approval. Thank you, Donna.
Then there are my twenty-seven interviewees themselves. They are listed at the back
of the book. Each of these people unstintingly shared their time and their stories with me.
Without their forthright expression of their take on events leading up to, surrounding, and
following the January 24, 2002, incident on Glacier Avenue, I could not have fashioned my
account. Hearty thanks to each one of you.
I want to single out four of my interviewees for especial appreciation: Joe Frederick and
Deborah Morse—of course—and their respective attorneys, Doug Mertz and David Crosby.
Without these four collaborators this book would have been a nonstarter. It is to them in par-
ticular that I address my commitment, articulated (in the context of The Laramie Project) in
my introduction: “Father Schmit [Catholic priest in Laramie] believes that Matthew Shepard
served Laramie well. He trusts that the authors of a play about the events surrounding Mat-
thew’s service will do him, and his town, justice. I have endeavored to do no less for the people
who trusted me and rendered invaluable assistance in telling this story” (p. 4).
A sabbatical from Oregon State University–Cascades, fall term 2008, together with being
appointed faculty leader of the 2008 fall semester Washington, D.C., program by Lewis &
Clark College, enabled me to live and work in our nation’s capital for fifteen weeks. During
that time I was able to share early chapters with a few East Coast colleagues and, crucially,
conduct interviews with six attorneys who were involved in writing and submitting amicus
briefs in Morse v. Frederick. I appreciate this institutional support from my undergraduate
alma mater (Lewis & Clark), and my primary employer (Oregon State). Fellow Lewis &
Clark alum William Cummings, long an attorney in Juneau, twice provided my partner,
Mindy, and me with hospitable lodging during our stays in Alaska’s capital. Bill is smart,
witty, and one of our favorite people. In Fairbanks, Mindy and I enjoyed the warm welcome
extended to us by Michelle Bartlett, director of summer sessions and lifelong learning at the
University of Alaska Fairbanks. Thanks to you both.
Speaking of sharing work with colleagues, my work and I have benefited enormously
from a rich diversity of associates and coworkers who have read materials and offered com-
ments along my journey. Early on Don Crowley, Susan Leeson, and Carolyn N. Long read
and commented on draft proposals and a chapter or two. While I was in Washington, D.C.,
Lou Fisher, David Hudson, and Philippa Strum read and commented on early chapters.
Back in Oregon, as I continued writing, I enjoyed the advantage of having two librarians,
Acknowledgments ix
a coordinator of international programs, and professors of English and speech communica-
tion—all affiliated with Oregon State University–Cascades—give my drafts close readings.
By name, these folks are Michele DeSilva and Lynne Hart, Cynthia Engel, Neil Browne and
Natalie Dollar. To Michele and Neil in particular: your rigorous scrutiny coupled with your
supportive attentiveness significantly improved the style and substance of my final work
product (not to mention kept me heartened to carry on). To Natalie: chapter 9 would not be
what it is without your work and your edits. Lief Carter chipped in his thoughts on chapter
8. To this variegated list of astute and encouraging readers, I’d add a social worker, Mindy
Soules. I’d also add Sarah Foster, Brittney Rickman, and Jeremy Guericke for their loving
support. Thank you, all.
When my manuscript was complete, Elisabeth Dabney handed it off to her UA Press
colleague, production editor Sue Mitchell. Sue oversaw a professional team that took my
typescript and produced this book. Melanie Gold did the copyediting. Rachel Fudge did
the interior design, layout, and proofreading. Dennis Roberts did the cover. My thanks to
each of you.
And to Mindy: As in all aspects of our lives, we’ve been partners in this endeavor. “Cher-
ish is the word I use to describe. . . .”