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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.
Source: 478 U.S. 675, https://www.law.cornell.edu/supremecourt/text/478/675.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari 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 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.” . . .
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 mimicry it provoked.
This Court’s First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. In Ginsberg v. New York (1968), this Court upheld a New York statute banning the sale of sexually oriented material to minors, even though the material in question was entitled to First Amendment protection with respect to adults. And in addressing the question whether the First Amendment places any limit on the authority of public schools to remove books from a public school library, all members of the Court, otherwise sharply divided, acknowledged that the school board has the authority to remove books that are vulgar (Board of Education v. Pico, 1982; plurality opinion). These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech.
We have also recognized an interest in protecting minors from exposure to vulgar and offensive spoken language. In FCC v. Pacifica Foundation (1978), we dealt with the power of the Federal Communications Commission to regulate a radio broadcast described as “indecent but not obscene.” There the Court reviewed an administrative condemnation of the radio broadcast of a self-styled “humorist” who described his own performance as being in “the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say ever.” The Commission concluded that “certain words depicted sexual and excretory activities in a patently offensive manner, [and] noted that they ‘were broadcast at a time when children were undoubtedly in the audience.’ ” . . . The plurality opinion went on to reject the radio station’s assertion of a First Amendment right to broadcast vulgarity: “These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: ‘[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality’ (Chaplinsky v. New Hampshire).”
We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed toward an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education. Justice Black, dissenting in Tinker, made a point that is especially relevant in this case: “I wish therefore, . . . to disclaim any purpose . . . to hold that the federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.”
Respondent contends that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech in question would subject him to disciplinary sanctions. This argument is wholly without merit. We have recognized that “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship” (New Jersey v. T.L.O). Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code, which imposes criminal sanctions. Cf. Arnett v. Kennedy (1974). Two days’ suspension from school does not rise to the level of a penal sanction calling for the full panoply of procedural due process protections applicable to a criminal prosecution (Goss v. Lopez, 1975). The school disciplinary rule proscribing “obscene” language and the pre-speech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions.
The judgment of the Court of Appeals for the Ninth Circuit is
JUSTICE MARSHALL, dissenting.
. . . I dissent from the Court’s decision . . . because, in my view, the School District failed to demonstrate that respondent’s remarks were indeed disruptive. The district court and court of appeals conscientiously applied Tinker v. Des Moines Independent Community School District (1969) and concluded that the School District had not demonstrated any disruption of the educational process. I recognize that the school administration must be given wide latitude to determine what forms of conduct are inconsistent with the school’s educational mission; nevertheless, where speech is involved, we may not unquestioningly accept a teacher’s or administrator’s assertion that certain pure speech interfered with education. Here the School District, despite a clear opportunity to do so, failed to bring in evidence sufficient to convince either of the two lower courts that education at Bethel School was disrupted by respondent’s speech. I therefore see no reason to disturb the court of appeals’ judgment.
JUSTICE STEVENS, dissenting.
“Frankly, my dear, I don’t give a damn.”
When I was a high school student, the use of those words in a public forum shocked the nation. Today Clark Gable’s four-letter expletive is less offensive than it was then. Nevertheless, I assume that high school administrators may prohibit the use of that word in classroom discussion and even in extracurricular activities that are sponsored by the school and held on school premises. For I believe a school faculty must regulate the content as well as the style of student speech in carrying out its educational mission. It does seem to me, however, that, if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. The interest in free speech protected by the First Amendment and the interest in fair procedure protected by the due process clause of the Fourteenth Amendment combine to require this conclusion.
This respondent was an outstanding young man with a fine academic record. The fact that he was chosen by the student body to speak at the school’s commencement exercises demonstrates that he was respected by his peers. This fact is relevant for two reasons. It confirms the conclusion that the discipline imposed on him—a three-day suspension and ineligibility to speak at the school’s graduation exercises—was sufficiently serious to justify invocation of the School District’s grievance procedures. See Goss v. Lopez (1975). More importantly, it indicates that he was probably in a better position to determine whether an audience composed of six hundred of his contemporaries would be offended by the use of a four-letter word—or a sexual metaphor—than is a group of judges who are at least two generations and three thousand miles away from the scene of the crime.
The fact that the speech may not have been offensive to his audience—or that he honestly believed that it would be inoffensive—does not mean that he had a constitutional right to deliver it. For the school—not the student—must prescribe the rules of conduct in an educational institution. But it does mean that he should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate punitive consequences.
- 1. A Latin word meaning “to be informed” or “we wish to be informed,” certiorari is an order of a higher court to review a lower court decision. “Certiorari” was the first word of such orders when they were written in Latin.
- 2. A respondent is a defendant in a lawsuit.
- 3. Charles Beard and Mary Beard, New Basic History of the United States (New York: Doubleday, 1968), 228.
- 4. Federal Communications Commission v. Pacifica Foundation.
- 5. Chaplinsky v. New Hampshire.
- 6. A person who makes a formal application to a court for a writ, judicial action in a suit, etc.