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long journey started five years ago, on a quiet afternoon at
Juneau-Douglas High School, as a student sat alone in the commons
area reading Albert Camus' novel "The Stranger."
In mid-March the road ends at the U.S. Supreme
Court, where the nationally watched "Bong Hits 4 Jesus"
case will test the limits of free speech in public schools.
Joe Frederick was an 18-year-old senior
back then. His classes were done for the day, and "Camaro
Joe," as some kids called him, was waiting for his girlfriend
to finish so he could give her a ride home. As Frederick recalls
the story, a vice principal approached and told him he couldn't
stay in the commons without supervision. He would have to
leave the campus to wait for her.
Frederick refused. He insisted he had a
right to sit quietly in his own school and read a French existentialist.
Two Juneau police officers were summoned, and Frederick left
after they threatened to arrest him for trespass.
The next morning at school, Frederick turned
his chair around and sat with his back to the flag during
the Pledge of Allegiance.
"This was my symbolic protest against
a school administration that clearly lacked common sense and
abused its power to retaliate against anyone who dared question
their authority," he wrote later in a mini-autobiography
where he quoted Thoreau, Voltaire and Martin Luther King.
Frederick said his father was summoned to
the school to discuss a possible suspension. School officials
say they have no record of the incident.
Regarding a suspension at that point, the
Supreme Court was already clear. In the unsettled world of
free speech rights in public schools the right to refuse to
salute the flag is one of the few established points.
After that, Frederick said, he resolved
to find a free speech protest that would draw wider notice.
He found one.
On Jan. 24, 2002, Frederick and friends
unfurled a 14-foot paper banner with duct-tape letters reading
"Bong Hits 4 Jesus." They were standing on a sidewalk
opposite the high school during a public Olympic-torch parade
attended by students and teachers.
The phrase, which they'd spotted on a snowboard
sticker at a local ski slope, was meant to be funny, provocative
and nonsensically ambiguous, Frederick said. To school officials,
it was an open challenge to their anti-drug policies, at what
they deemed a school event.
Principal Deborah Morse crossed the street
and crumpled up the banner.
Frederick's move -- and the school's stern
response -- had more impacts than he ever imagined. The incident
gave way to his suspension from school, several arrests by
Juneau police, a lawsuit against the city settled in his favor,
the loss of his father's job and, eventually, the departure
of father and son from Alaska and the United States.
It also resulted in a court case, Morse
v. Frederick, which has climbed through the federal system
and will be up for oral argument in the Supreme Court on March
19.
Frederick, now 23, still sounded like the
defiant student existentialist Friday in a teleconference
from China, where he is teaching high school English.
"I wanted to know more precisely the
boundaries of my freedom," he said when reporters asked
why he'd raised the banner. "I feel that if you don't
use your rights you lose them."
SURPRISING ALLIES
It's easy to picture someone like Joe Frederick
in any high school yearbook or teen movie: new to the town,
chafing at authority, bright but not the most serious about
class work (though Frederick still talks about a government
class where they discussed the Bill of Rights).
"He was definitely a kid who liked
to push buttons," said a classmate, Micaela Croteau.
The banner itself didn't cause a big reaction
that day among students, Frederick said.
"Students thought it was dumb,"
Croteau agreed. "But people were mostly amused by the
way the administrators reacted, how they got on their walkie-talkies
and called for backup."
Backup at this point has come to include
the National School Boards Association, former federal drug
czar William J. Bennett and the solicitor general of the United
States. Arguing for free on behalf of the Juneau School Board
is Kenneth Starr, the former independent prosecutor whose
investigation led to the impeachment of President Clinton.
Frederick has drawn reinforcements, too.
The American Civil Liberties Union has worked with Juneau
lawyer Doug Mertz since the original case was filed in April
2002. They went to court after the school board refused to
erase Frederick's eight-day suspension from his record.
Among other friends-of-the-court on Frederick's
side are a half-dozen Christian and constitutional rights
organizations who say they are looking past the "ill-advised
stunt" to worry about future censorship of religious
or "pro-family" expression in public schools. Also
submitting briefs for him are groups supporting drug-policy
reform and gay rights as well as booksellers, librarians and
feminists.
The organizations on Frederick's side all
come around to a similar argument: that school officials should
not be able to punish nondisruptive student speech just because
they interpret it as contradicting school policy. They argue
that Frederick's decision to unfurl his banner off school
property makes the school's reach even more alarming.
The fact that this occurred in Alaska was
relevant, the 9th U.S. Circuit Court of Appeals said when
it ruled in Frederick's favor last year, setting up the Supreme
Court showdown.
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Alaska has had a particularly lively and
ongoing legal and political debate over criminalization of
marijuana, the court noted. Would the school's laudable anti-drug
policy mean administrators could challenge a student handing
out the Alaska Supreme Court decision allowing private possession
of marijuana, the court wondered?
On the other side, lawyers argue that promoting
drugs or alcohol at school events has long been banned by
school policies. They contend the students were attending
the torch parade during school hours as part of a school-sanctioned
event.
"The banner -- if left undisturbed
-- could have told not only the high school student body but
the larger community that drug-use promotion is openly tolerated
within the local public high school," Starr said in his
brief.
Juneau school superintendent Peggy Cowan
said last week that the district encourages discussion of
controversial issues, including drug policies. But such debate
belongs in the classroom, she said.
School officials are especially troubled
by the 9th Circuit decision to hold Morse personally liable
for violating Frederick's First Amendment rights. Removing
her official immunity will make it hard for officials across
the country to interpret school board policies, they contend.
RETALIATION?
Trouble started piling up quickly for Joe
Frederick after he unfurled his banner.
That afternoon, he was suspended by principal
Morse for 10 days. Starr said in his Supreme Court brief that
Frederick "displayed a belligerent attitude and gave
evasive and mocking answers to her questions." Frederick
said a five-day suspension was doubled after he talked back
by quoting Thomas Jefferson on free speech. Morse testified
the extra days came because he wouldn't cooperate and name
the other students who held the banner.
The following week, while serving his suspension,
Frederick was arrested by Juneau police and charged with trespass
while parked at the municipal swimming pool next to the high
school, waiting to pick up his girlfriend. His white Camaro
was impounded and searched for drugs. He complained that police
ruined his electrical door and windows. "The only thing
found was a straw that was in a Taco Bell cup that the police
listed as drug paraphernalia," he later wrote.
The trespassing charges were dropped after
a dispute over how close to the property line his Camaro was
parked, according to city attorney John Hartle.
Back in school, Frederick was suspended
again in March for wearing a Leatherman tool in the hallway.
He was also arrested again, this time after failing to signal
a left turn in his Camaro. Police took him to jail, saying
he'd failed to pay an old fine for minor-consuming-alcohol.
The charge was dropped when police discovered it was a clerical
error, said Mertz, Frederick's lawyer.
Frederick accused the school and police
of retaliating because of his banner. He eventually sued the
city for harassment over the arrests. City officials agreed
in 2004 to pay a $22,000 settlement without conceding any
guilt, according to records.
Meanwhile Frederick's father had lost his
job, in part because of the federal lawsuit his son filed
against the school board.
Frank Frederick was in a tight spot, to
be sure. He was a risk manager for the school district's insurance
company. The company was facing big legal fees because of
the federal suit. The senior Frederick agreed to shield himself
from anything touching on the legal case. But after refusing
to intervene with his son, he was demoted and eventually fired,
according to his lawsuit against Alaska Public Entity Insurance.
The case, which turned on other issues as well, ended with
a jury award to Frederick of $200,000 plus interest and fees.
Frank Frederick has since found himself
unable to get a job in the insurance industry, said Mertz.
With no aid from his father, Joe Frederick said, he dropped
out after his first year of college. His father eventually
found work teaching English in China, and Joe recently joined
him there.
BITTER FEELINGS
During the ACLU teleconference Friday with
national reporters, Joe Frederick declined to say where he's
living in China or compare himself to dissenters there. Nor
would he answer when a Juneau reporter, citing information
passed along by "detractors," asked about a criminal
conviction for selling marijuana in 2003, during his college
year in Texas.
"I've never professed to be perfect or a saint,"
Frederick said. "To reduce this to mudslinging and personal
character assassination is wrong."
Texas court records show Frederick pleaded
guilty on March 17, 2004, to a misdemeanor sale of pot near
the Stephen F. Austin State University campus and was sentenced
to 60 days in county jail.
Juneau lawyer David Crosby, who represented
the schools in the early rounds of the case, said Frederick
has "delusions of grandeur."
"The Bong Hits case is an interesting
one, and the district has not gotten a whole lot of sympathy
from the press. So be it," Crosby said via e-mail last
week.
"It is particularly galling, however,
that while the district is being painted as the enemy of students'
rights, the carefully manipulated image of Joe Frederick as
a latter day Thoreau ... is highly misleading, offensive and
ludicrous," he said.
For his part, Frederick said Friday he's
glad he stuck with the free-speech lawsuit, despite the uproar
it caused in his life. The stakes have grown big, but it was
clear that on some level this was still about Camaro Joe with
his nose in the face of an unbending school administration.
"They don't want to admit that they're
wrong in any way," he said.
From Rominger Legal & Anchorage Daily
Ne
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Competitors
say that a leading company ripped down their posters and used
deceptive marketing tactics; former customers say that the
same company paid business rivals to close their doors. And
one competitor says he fears that he was the victim of outright
theft.
This is how the business of training aspiring
lawyers to pass the bar exam is conducted, according to documents
and testimony that have surfaced as a result of a federal
lawsuit in Los Angeles. It is a business dominated by a single
company that expanded, depending on whom you believe, either
by squashing its competitors or by simply offering a superior
product.
That company is BAR/BRI. And students who
took its courses filed a class-action lawsuit two years ago
contending that the company operated an illegal monopoly and
overcharged them by about $1,000 each. The students, seeking
hundreds of millions of dollars in damages, also said that
BAR/BRI cut illegal deals with potential competitors to protect
its market. But earlier this month, lawyers in the case reached
a tentative settlement agreement for $49 million, which could
net each student in the class about $125.
The deal, which still requires court approval,
has infuriated some of the original plaintiffs in the case,
who harbored such anger against BAR/BRI that they wanted to
see the company broken up. BAR/BRI is a unit of the Thomson
Corporation, the large information-services concern, and Thomson
says the accusations in the lawsuit against BAR/BRI involve
activities that occurred before it bought the company in 2001.
BAR/BRI's lawyers say the company has done nothing wrong and
that the students' claims are meritless.
It is hard to gauge the strength of the
case against BAR/BRI, because many of the filings are sealed
- at the request of the defendants, the plaintiffs' lawyers
say. But depositions and other court documents that have become
publicly available during the course of the litigation have
been laced with accusations that BAR/BRI engaged in unsavory
conduct. Other claims that have emerged in the case also suggest
just how petty and cutthroat the entire bar review market
can be.
In a deposition for the Los Angeles case,
one former competitor, Hugh Reed, contended that BAR/BRI representatives
tore his company's posters off of law school walls; both he
and James J. Rigos, a current competitor, contended that the
company exaggerated its students' success rate on the bar
exam. And Mr. Rigos said in court filings that he believed
that his offices might have been repeatedly burglarized because
he was a potential witness in the Los Angeles antitrust litigation.
Lawyers for BAR/BRI have denied Mr. Rigos's accusations.
Bar review programs like BAR/BRI thrive
because of the tremendous anxiety provoked by the bar exam.
The exam, a prerequisite to practicing law in most states,
is the last major hurdle to a legal career and comes after
years of legal education that can leave students with bills
of more than $100,000. The exam can stretch over two or three
days and requires mastery of law throughout the country and
in a particular state.
More than 80,500 people took a state's bar exam in 2005, according
to the National Conference of Bar Examiners; just under two-thirds
- 64 percent - passed. And BAR/BRI sells at least 40,000 bar
review courses annually, according to a judge hearing one
of the antitrust lawsuits against the company.
BAR/BRI's review program consists of about
two months of intensive pre-exam classes, given five days
a week for three to five hours a day. Some students take the
courses in a classroom, while others watch a video recording
or listen to a podcast.
The courses are not cheap. For its review
course this summer for the New York bar exam, BAR/BRI charges
$2,700 a student. The company offers courses for exams in
43 states and the District of Columbia, according to court
filings, and it generates about $125 million a year in revenue.
Nearly half of that is profit.
The precursor of BAR/BRI, a program called
the Bar Review Institute, was founded in 1967 in Illinois
by Richard Conviser, who is now the chairman of the company.
(Thomson declined to make Mr. Conviser available for an interview.)
The Bar Review Institute was acquired in 1974 by Harcourt
Brace Jovanovich, which combined it with Bay Area Review,
a California bar review program, to create BAR/BRI. At first
the company faced competitors in several states, but over
time it has cemented its position as the dominant provider.
BAR/BRI has been caught up in antitrust
litigation at least five times over the years. A suit was
filed in federal court in Manhattan in 2005 by a student contending
that BAR/BRI illegally tied together two course offerings
- one for the state law portion of the bar exam, the other
for the uniform nationwide or "multistate" portion
- so that rivals offering courses covering just one area could
not compete effectively. In its court filings, BAR/BRI has
defended its program, which it characterized as a "full-service,
integrated course."
It is the Los Angeles case, which has progressed
further, that has angered some of the young lawyers who sued
BAR/BRI. They complain that the proposed settlement lets the
company off the hook too lightly.
"This suit said, we're going to fight
for monetary damages, but we're also going to fight to keep
this from happening to the people who are coming up after
you, for those people who are next year's class," said
Lisa Gintz, a lawyer in Baton Rouge, La., who is one of the
lead plaintiffs opposed to the settlement. "With this
settlement agreement, really, BAR/BRI hasn't made one change.
Not one."
John Shaughnessy, a spokesman for Thomson,
declined to comment in detail for this article but provided
a brief statement about the settlement: "We are pleased
to bring a close to this matter as the alleged actions that
formed the basis of the suit occurred years prior to Thomson
acquiring the business."
A settlement must be approved by Judge Manuel
L. Real of United States District Court in Los Angeles, who
is hearing the case. A settlement would mean that Thomson
and its co-defendant, the test preparation giant Kaplan Inc.,
would not have to address in open court the most serious accusation
against them: that the two companies agreed in 1997 to stay
out of each other's market.
The students' complaint asserted that Kaplan
agreed not to compete in the bar review market and that BAR/BRI
agreed not to compete in the LSAT preparation market. Both
Kaplan and BAR/BRI have strongly denied this contention.
"As Kaplan has consistently stated
in the litigation, our only agreement with BAR/BRI was to
market BAR/BRI services to Kaplan students," Melissa
Mack, a Kaplan spokeswoman, said in a statement.
Over the course of the litigation, other
contentions have been made specifically about BAR/BRI.
Mr. Reed, who was interviewed by lawyers
for the Los Angeles case, said he worked for BAR/BRI for about
16 years and now owns a Chicago firm that offers individualized
bar exam preparation.
Shortly after he left BAR/BRI in 1989, he
tried to start a company that would compete against it. In
a deposition for the case last summer, he said that BAR/BRI
representatives pulled down his posters on several campuses
between 1991 and 1993.
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Hugh Reed
"We had information and caught people
red-handed tearing down our fliers," Mr. Reed said in
the deposition.
Mr. Reed, who has been involved in litigation
against BAR/BRI at least three times over the years (he said
that each case settled), also accused BAR/BRI of having exaggerated
its "pass rate," that is, the percentage of students
who took its class and passed the bar. Mr. Shaughnessy, the
Thomson spokesman, declined to comment on that contention.
One of the most unusual accusations was made by Mr. Rigos,
who runs a bar review course in Washington state. It is one
of BAR/BRI's few remaining competitors. Mr. Rigos submitted
a statement in federal court in Seattle last summer in an
effort to avoid having to produce evidence and possibly having
to serve as a witness for either side in the Los Angeles case.
If he did so, he said, his business would incur significant
costs and would reap little benefit.
Here is what he told the court: Late one
evening in the fall of 2005, someone broke into his offices
on Fifth Avenue in downtown Seattle. The burglar (or burglars)
bypassed a laptop and made for Mr. Rigos's desktop computer,
which was taken. Someone on the staff discovered the break-in
the next morning and called the police. It was, Mr. Rigos
said in a court filing, the office's first robbery in more
than 25 years.
The second robbery came just two weeks later.
Two people were caught on camera: a woman and a man in a baseball
cap, Mr. Rigos said. Again, they took his computer, which
this time was secured to his desk. Again, the police were
called. The investigating officer, Linda K. Dolane, wrote
that she found it odd that the computer had been removed despite
the locks holding it in place, which were undamaged. She observed
in a report, "This is suspicious because unless a person
knows how to install and uninstall them there would be damage
to the equipment that was being removed."
No one has been charged in the burglaries.
Mr. Rigos said that it was after the robberies that he learned
that he could be called as a witness by the plaintiffs in
the Los Angeles antitrust case. After all, he was a competitor
to BAR/BRI who possibly had evidence showing how the company
did business, which could conceivably benefit one side or
the other.
BAR/BRI's lawyers asked to see documents
that Mr. Rigos might have and to interview him, to learn what
his testimony might be. Mr. Rigos immediately suspected that
BAR/BRI might somehow be behind the burglaries, and said so
in a document he filed in federal court in Seattle.
"Since we haven't been broken into
in 25 years, or that server stolen, you can read your own
inferences there, but I know what my own inference was,"
Mr. Rigos said in an interview.
BAR/BRI's lawyers responded rapidly and
strongly to Mr. Rigos's contention. Alan S. Gruber, a lawyer
at the New York law firm of Shearman & Sterling, said
in a court filing that Mr. Rigos's contention "has no
basis in fact and is outrageous."
"Neither BAR/BRI nor its counsel burglarized
Mr. Rigos's office to obtain the documents it seeks,"
Mr. Gruber added in the filing.
Mr. Gruber went on to say that Mr. Rigos's
suggestion that the burglaries were somehow intended to intimidate
him was "preposterous."
In his court filing, Mr. Rigos leveled other
accusations against BAR/BRI.
Like Mr. Reed, he contended that BAR/BRI
overstated its pass rates. He said that BAR/BRI used the threat
of lawsuits to try to intimidate Mr. Rigos's company.
But, Mr. Rigos said in his statement, he wanted nothing to
do with the current litigation against BAR/BRI. Costly litigation
would hurt his business, he said. Besides, he said in the
statement: "The students' lawsuit will probably settle,
producing some refund. However, it will not likely change
the industry domination and predatory practices" of BAR/BRI,
he said.
The prospect that Mr. Rigos's prediction
could come true, in that the settlement with BAR/BRI could
leave its market position unchanged, has led some of those
students to take on the same law firm that was representing
them. Ms. Gintz and two more named plaintiffs representing
former BAR/BRI students in the antitrust case fired off a
strongly worded 10-page memorandum to their lawyers earlier
this month, accusing them of an "apparent breach"
of their fiduciary duties to the class.
The law firm handling the case for the plaintiffs
is McGuireWoods, whose largest offices are in Richmond, Va.,
and in Chicago. William Allcott, a partner speaking on behalf
of the firm, said the decision to settle was made with the
best interests of the class in mind, and added that if the
case were to go to trial, the firm would aggressively pursue
that direction, too.
"We believe that when the court hears
the evidence, it is going to conclude that this is a fair,
reasonable and adequate settlement for the members of the
affected class," Mr. Allcott said. "If for some
reason the court didn't agree with that, we're prepared to
go to trial."
McGuireWoods is in a sensitive spot. The
firm inherited the BAR/BRI case last year when it acquired
Van Etten Suzumoto & Becket of Los Angeles.
The proposed settlement puts Eliot G. Disner,
who filed the BAR/BRI case, in an even more awkward spot.
Mr. Disner, a former Van Etten Suzumoto lawyer, is now a McGuireWoods
partner. According to the former BAR/BRI students objecting
to the settlement, Mr. Disner told them that he would seek
to break up the company. Yet as a partner at McGuireWoods,
Ms. Gintz said, he cannot criticize the deal his colleagues
have negotiated.
But a settlement would not be a surprising
outcome. BAR/BRI has fended off other antitrust attacks. A
former California competitor, American Professional Testing
Service Inc., contended that BAR/BRI offered courses below
cost, bribed law school administrators and tore down posters
advertising its course, called Barpassers. The case, which
was handled on appeal by a gifted lawyer - John G. Roberts
Jr., now chief justice of the United States - was not successful.
Ms. Gintz and her fellow dissenting plaintiffs
say that the case against BAR/BRI is strong, and that it is
significant that the judge hearing the case denied a summary
judgment motion by Kaplan, which sought to end the litigation
after the evidence-gathering phase, or discovery.
"What that says is, on the surface
of these pleadings, there were triable issues there,"
Ms. Gintz said.
Mr. Disner declined to answer questions
about the current case or the settlement, deferring to Mr.
Allcott, the law firm's spokesman.
Mr. Rigos, whose company was the victim of the Seattle burglary,
sounded sad as he considered the state of the bar review business.
"When I got into this, when I was going
to law school in Boston, back then it was really a fun business,"
he said, adding, "I don't know that I'm just getting
older and this thing has worn me down, but it doesn't seem
as much fun as it was in those days."
From Rominger Legal & The New York
Times.
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