Bethel School District v. Fraser

Why are the rights of students in the educational setting “not automatically coextensive” with those of adults? How was Fraser’s speech “inconsistent with the “fundamental values” of public school education”? What are these “fundamental values”?
How did the Court apply the Tinker v. Des Moines precedent in Bethel? Did Fraser’s speech “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” under Tinker? To what extent does Bethel narrow Tinker? What are the differences between Tinker’s and Fraser’s speech? Compare the Court’s reasoning in Bethel  with that in Tinker and Morse. What accounts for the different rulings in these cases?

In the spring of 1983, at an official school event, Matthew Fraser delivered a speech nominating Jeff Kuhlman as an officer for study body government. The speech, which was laced with sexual innuendo and double entendre, was presented to an auditorium of about six hundred students, ages fourteen years old and older. Fraser had discussed the speech with several teachers before the assembly. Two of them found it “inappropriate” and advised against it. He disregarded a warning that it could have “severe consequences.” After giving the speech, he was notified that he had broken the school’s “disruptive rule of conduct” policy, which stated: “Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.” Fraser then admitted that he had intentionally used sexual innuendo. The school suspended him for two days and banned him from speaking at the forthcoming graduation. He sued, and the district court decided in his favor, ruling that the school’s code of conduct was unduly vague and overly broad. This decision was affirmed by the Ninth Circuit Court.

The Supreme Court then reversed by a vote of 7–2. In his opinion for the Court, Chief Justice Warren Burger (1907–1995) distinguished between the passive political expression of the armbands in Tinker v. Des Moines and Fraser’s lewd and sexually charged message. Though Tinker was not overturned in Bethel, it was narrowed by tilting the scale in favor of state authorities. The decision granted local school boards wider latitude in maintaining appropriate discipline and civil discourse in the classroom setting. Not surprisingly, Burger cited Justice Black’s caustic dissent in Tinker. In addition to Burger’s opinion, excerpts from the dissenting opinions of Justice John Harlan Marshall (1889–1971) and Justice John Paul Stevens (1920–2019) are included.

—Joseph R. Fornieri

Source: 478 U.S. 675,

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari[1] to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly. . . .

This Court acknowledged in Tinker v. Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and obscene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position.

The marked distinction between the political “message” of the armbands in Tinker and the sexual content of respondent’s[2] speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students’ right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case did “not concern speech or action that intrudes upon the work of the schools or the rights of other students.”

It is against this background that we turn to consider the level of First Amendment protection accorded to Fraser’s utterances and actions before an official high school assembly attended by six hundred students.

The role and purpose of the American public school system were well described by two historians, who stated: “[P]ublic education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.”[3] . . .

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences. . . .

The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms highly offensive to most citizens (Cohen v. California, 1971). It does not follow, however, that, simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. In New Jersey v. T.L.O. (1985), we reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. As cogently expressed by Judge Newman, “the First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket” (Thomas v. Board of Education, Granville Central School District, 1979).

Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.

The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers—and indeed the older students—demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.

The pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students—indeed, to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. The speech could well be seriously damaging to its less mature audience, many of whom were only fourteen years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimi