Bethel School District No. 403 v. Fraser


BURGER, C. J., delivered the opinion of the Court, in which WHITE,POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinionconcurring in the judgment. BLACKMUN, J., concurred in the result. MARSHALL,J., and STEVENS, J., filed dissenting opinions.

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether the First Amendment preventsa school district from disciplining a high school student for giving alewd speech at a school assembly.



On April 26, 1983, respondent Matthew N. Fraser, a student at BethelHigh School in Pierce County, Washington, delivered a speech nominatinga fellow student for student elective office. Approximately 600 high schoolstudents, many of whom were 14-year-olds, attended the assembly. Studentswere required to attend the assembly or to report to the study hall. Theassembly was part of a school-sponsored educational program in self-government.Students who elected not to attend the assembly were required to reportto study hall. During the entire speech, Fraser referred to his candidatein terms of an elaborate, graphic, and explicit sexual metaphor.

Two of Fraser's teachers, with whom he discussed the contents of hisspeech in advance, informed him that the speech was "inappropriate andthat he probably should not deliver it," and that his delivery of the speechmight have "severe consequences."

During Fraser's delivery of the speech, a school counselor observedthe reaction of students to the speech. Some students hooted and yelled;some by gestures graphically simulated the sexual activities pointedlyalluded to in respondent's speech. Other students appeared to be bewilderedand embarrassed by the speech. One teacher reported that on the day followingthe speech, she found it necessary to forgo a portion of the scheduledclass lesson in order to discuss the speech with the class.

A Bethel High School disciplinary rule prohibiting the use of obscenelanguage in the school provides:

"Conduct which materially and substantially interferes withthe educational process is prohibited, including the use of obscene, profanelanguage or gestures."

The morning after the assembly, the Assistant Principal called Fraser intoher office and notified him that the school considered his speech to havebeen a violation of this rule. Fraser was presented with copies of fiveletters submitted by teachers, describing his conduct at the assembly;he was given a chance to explain his conduct, and he admitted to havinggiven the speech described and that he deliberately used sexual innuendoin the speech. Fraser was then informed that he would be suspended forthree days, and that his name would be removed from the list of candidatesfor graduation speaker at the school's commencement exercises.

Fraser sought review of this disciplinary action through the SchoolDistrict's grievance procedures. The hearing officer determined that thespeech given by respondent was "indecent, lewd, and offensive to the modestyand decency of many of the students and faculty in attendance at the assembly."The examiner determined that the speech fell within the ordinary meaningof "obscene," as used in the disruptive-conduct rule, and affirmed thediscipline in its entirety. Fraser served two days of his suspension, andwas allowed to return to school on the third day.


Respondent, by his father as guardian ad litem, then brought this actionin the United States District Court for the Western District of Washington.Respondent alleged a violation of his First Amendment right to freedomof speech and sought both injunctive relief and monetary damages under42 U. S. C. § 1983. The District Court held that the school's sanctionsviolated respondent's right to freedom of speech under the First Amendmentto the United States Constitution, that the school's disruptive-conductrule is unconstitutionally vague and overbroad, and that the removal ofrespondent's name from the graduation speaker's list violated the Due ProcessClause of the Fourteenth Amendment because the disciplinary rule makesno mention of such removal as a possible sanction. The District Court awardedrespondent $ 278 in damages, $ 12,750 in litigation costs and attorney'sfees, and enjoined the School District from preventing respondent fromspeaking at the commencement ceremonies. Respondent, who had been electedgraduation speaker by a write-in vote of his classmates, delivered a speechat the commencement ceremonies on June 8, 1983.

The Court of Appeals for the Ninth Circuit affirmed the judgment ofthe District Court, 755 F.2d 1356 (1985), holding that respondent's speechwas indistinguishable from the protest armband in Tinker v. DesMoines Independent Community School Dist., 393 U.S. 503 (1969). Thecourt explicitly rejected the School District's argument that the speech,unlike the passive conduct of wearing a black armband, had a disruptiveeffect on the educational process. The Court of Appeals also rejected theSchool District's argument that it had an interest in protecting an essentiallycaptive audience of minors from lewd and indecent language in a settingsponsored by the school, reasoning that the School District's "unbridleddiscretion" to determine what discourse is "decent" would "increase therisk of cementing white, middle-class standards for determining what isacceptable and proper speech and behavior in our public schools."

We reverse.


This Court acknowledged in Tinker v. Des Moines IndependentCommunity School Dist., supra, that students do not "shed their constitutionalrights to freedom of speech or expression at the schoolhouse gate." TheCourt of Appeals read that case as precluding any discipline of Fraserfor indecent speech and lewd conduct in the school assembly. That courtappears to have proceeded on the theory that the use of lewd and obscenespeech in order to make what the speaker considered to be a point in anominating speech for a fellow student was essentially the same as thewearing of an armband in Tinker as a form of protest or the expressionof a political position.

The marked distinction between the political "message" of the armbandsin Tinker and the sexual content of respondent's speech in thiscase seems to have been given little weight by the Court of Appeals. Inupholding the students' right to engage in a nondisruptive, passive expressionof a political viewpoint in Tinker, this Court was careful to notethat the case did "not concern speech or action that intrudes upon thework of the schools or the rights of other students."

It is against this background that we turn to consider the level ofFirst Amendment protection accorded to Fraser's utterances and actionsbefore an official high school assembly attended by 600 students.


The role and purpose of the American public school system were welldescribed by two historians, who stated: "[Public] education must preparepupils for citizenship in the Republic. . . . It must inculcate the habitsand manners of civility as values in themselves conducive to happinessand as indispensable to the practice of self-government in the communityand the nation."

These fundamental values of "habits and manners of civility" essentialto a democratic society must, of course, include tolerance of divergentpolitical and religious views, even when the views expressed may be unpopular.But these "fundamental values" must also take into account considerationof the sensibilities of others, and, in the case of a school, the sensibilitiesof fellow students. The undoubted freedom to advocate unpopular and controversialviews in schools and classrooms must be balanced against the society'scountervailing interest in teaching students the boundaries of sociallyappropriate behavior. Even the most heated political discourse in a democraticsociety requires consideration for the personal sensibilities of the otherparticipants and audiences.

In our Nation's legislative halls, where some of the most vigorous politicaldebates in our society are carried on, there are rules prohibiting theuse of expressions offensive to other participants in the debate. The Manualof Parliamentary Practice, drafted by Thomas Jefferson and adopted by theHouse of Representatives to govern the proceedings in that body, prohibitsthe use of "impertinent" speech during debate and likewise provides that"[no] person is to use indecent language against the proceedings of theHouse." The Rules of Debate applicable in the Senate likewise providethat a Senator may be called to order for imputing improper motives toanother Senator or for referring offensively to any state. Can itbe that what is proscribed in the halls of Congress is beyond the reachof school officials to regulate?

The First Amendment guarantees wide freedom in matters of adult publicdiscourse. A sharply divided Court upheld the right to express an antidraftviewpoint in a public place, albeit in terms highly offensive to most citizens.See Cohen v. California, 403 U.S. 15 (1971). It does notfollow, however, that simply because the use of an offensive form of expressionmay not be prohibited to adults making what the speaker considers a politicalpoint, the same latitude must be permitted to children in a public school.In New Jersey v. T. L. O., 469 U.S. 325 (1985), we reaffirmedthat the constitutional rights of students in public school are not automaticallycoextensive with the rights of adults in other settings. As cogently expressedby Judge Newman, "the First Amendment gives a high school student the classroomright to wear Tinker's armband, but not Cohen's jacket [Cohen's jacketsaid "Fuck the Draft"].

Surely it is a highly appropriate function of public school educationto prohibit the use of vulgar and offensive terms in public discourse.Indeed, the "fundamental values necessary to the maintenance of a democraticpolitical system" disfavor the use of terms of debate highly offensiveor highly threatening to others. Nothing in the Constitution prohibitsthe states from insisting that certain modes of expression are inappropriateand subject to sanctions. The inculcation of these values is truly the"work of the schools." The determination of what manner of speechin the classroom or in school assembly is inappropriate properly restswith the school board.

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

The pervasive sexual innuendo in Fraser's speech was plainly offensiveto both teachers and students -- indeed to any mature person. By glorifyingmale sexuality, and in its verbal content, the speech was acutely insultingto teenage girl students. The speech could well be seriously damaging toits less mature audience, many of whom were only 14 years old and on thethreshold of awareness of human sexuality. Some students were reportedas bewildered by the speech and the reaction of mimicry it provoked. Wehave also recognized an interest in protecting minors from exposure tovulgar and offensive spoken language....

We hold that petitioner School District acted entirely within its permissibleauthority in imposing sanctions upon Fraser in response to his offensivelylewd and indecent speech. Unlike the sanctions imposed on the studentswearing armbands in Tinker, the penalties imposed in this case wereunrelated to any political viewpoint. The First Amendment does not preventthe school officials from determining that to permit a vulgar and lewdspeech such as respondent's would undermine the school's basic educationalmission. A high school assembly or classroom is no place for a sexuallyexplicit monologue directed towards an unsuspecting audience of teenagestudents. Accordingly, it was perfectly appropriate for the school to disassociateitself to make the point to the pupils that vulgar speech and lewd conductis wholly inconsistent with the "fundamental values" of public school education.Justice Black, dissenting in Tinker, made a point that is especiallyrelevant in this case:

"I wish therefore, . . . to disclaim any purpose . . . to hold thatthe Federal Constitution compels the teachers, parents, and elected schoolofficials to surrender control of the American public school system topublic school students."


Respondent contends that the circumstances of his suspension violateddue process because he had no way of knowing that the delivery of the speechin question would subject him to disciplinary sanctions. This argumentis wholly without merit. We have recognized that "maintaining securityand order in the schools requires a certain degree of flexibility in schooldisciplinary procedures, and we have respected the value of preservingthe informality of the student-teacher relationship." Given the school'sneed to be able to impose disciplinary sanctions for a wide range of unanticipatedconduct disruptive of the educational process, the school disciplinaryrules need not be as detailed as a criminal code which imposes criminalsanctions. The school disciplinary rule proscribing "obscene" languageand the prespeech admonitions of teachers gave adequate warning to Fraserthat his lewd speech could subject him to sanctions.

The judgment of the Court of Appeals for the Ninth Circuit is Reversed.

JUSTICE BRENNAN, concurring in the judgment.

Respondent gave the following speech at a high school assembly in supportof a candidate for student government office:

"'I know a man who is firm -- he's firm in his pants, he'sfirm in his shirt, his character is firm -- but most . . . of all, hisbelief in you, the students of Bethel, is firm.

"'Jeff Kuhlman is a man who takes his point and pounds it in. If necessary,he'll take an issue and nail it to the wall. He doesn't attack things inspurts -- he drives hard, pushing and pushing until finally -- he succeeds.

"'Jeff is a man who will go to the very end -- even the climax, foreach and every one of you.

"'So vote for Jeff for A. S. B. vice-president -- he'll never come betweenyou and the best our high school can be.'"

The Court, referring to these remarks as "obscene," "vulgar," "lewd," and"offensively lewd," concludes that school officials properly punished respondentfor uttering the speech. Having read the full text of respondent's remarks,I find it difficult to believe that it is the same speech the Court describes.To my mind, the most that can be said about respondent's speech -- andall that need be said -- is that in light of the discretion school officialshave to teach high school students how to conduct civil and effective publicdiscourse, and to prevent disruption of school educational activities,it was not unconstitutional for school officials to conclude, under thecircumstances of this case, that respondent's remarks exceeded permissiblelimits. Thus, while I concur in the Court's judgment, I write separatelyto express my understanding of the breadth of the Court's holding....

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 publicforum shocked the Nation. Today Clark Gable's four-letter expletive isless offensive than it was then. Nevertheless, I assume that high schooladministrators may prohibit the use of that word in classroom discussionand even in extracurricular activities that are sponsored by the schooland held on school premises. For I believe a school faculty must regulatethe content as well as the style of student speech in carrying out itseducational mission. It does seem to me, however, that if a student isto be punished for using offensive speech, he is entitled to fair noticeof the scope of the prohibition and the consequences of its violation.The interest in free speech protected by the First Amendment and the interestin fair procedure protected by the Due Process Clause of the FourteenthAmendment 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'scommencement exercises demonstrates that he was respected by his peers.This fact is relevant for two reasons. It confirms the conclusion thatthe discipline imposed on him -- a 3-day suspension and ineligibility tospeak at the school's graduation exercises -- was sufficiently seriousto justify invocation of the School District's grievance procedures. Moreimportantly, it indicates that he was probably in a better position todetermine whether an audience composed of 600 of his contemporaries wouldbe 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 3,000 milesaway 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 notmean that he had a constitutional right to deliver it. For the school --not the student -- must prescribe the rules of conduct in an educationalinstitution. But it does mean that he should not be disciplined for speakingfrankly in a school assembly if he had no reason to anticipate punitiveconsequences.

One might conclude that respondent should have known that he would bepunished for giving this speech on three quite different theories: (1)It violated the "Disruptive Conduct" rule published in the student handbook;(2) he was specifically warned by his teachers; or (3) the improprietyis so obvious that no specific notice was required. I discuss each theoryin turn.

The Disciplinary Rule

At the time the discipline was imposed, as well as in its defense ofthis lawsuit, the school took the position that respondent violated thefollowing published rule:

"'In addition to the criminal acts defined above, the commissionof, or participation in certain noncriminal activities or acts may leadto disciplinary action. Generally, these are acts which disrupt and interferewith the educational process. . .

"'Disruptive Conduct. Conduct which materially and substantiallyinterferes with the educational process is prohibited, including the useof obscene, profane language or gestures.'"

"[The] record now before us yields no evidence that Fraser's use of a sexualinnuendo in his speech materially interfered with activities at BethelHigh School. While the students' reaction to Fraser's speech may fairlybe characterized as boisterous, it was hardly disruptive of the educationalprocess. In the words of Mr. McCutcheon, the school counselor whose testimonythe District relies upon, the reaction of the student body 'was not atypicalto a high school auditorium assembly.' In our view, a noisy response tothe speech and sexually suggestive movements by three students in a crowdof 600 fail to rise to the level of a material interference with the educationalprocess that justifies impinging upon Fraser's First Amendment right toexpress himself freely.

"We find it significant that although four teachers delivered writtenstatements to an assistant principal commenting on Fraser's speech, noneof them suggested that the speech disrupted the assembly or otherwise interferedwith school activities. . Nor can a finding of material disruption be basedupon the evidence that the speech proved to be a lively topic of conversationamong students the following day."

Thus, the evidence in the record, as interpreted by the District Courtand the Court of Appeals, makes it perfectly clear that respondent's speechwas not "conduct" prohibited by the disciplinary rule. Indeed, even ifthe language of the rule could be stretched to encompass the nondisruptiveuse of obscene or profane language, there is no such language in respondent'sspeech. What the speech does contain is a sexual metaphor that may unquestionablybe offensive to some listeners in some settings. But if an impartial judgeputs his or her own views about the metaphor to one side, I simply cannotunderstand how he or she could conclude that it is embraced by the above-quotedrule. At best, the rule is sufficiently ambiguous that without a furtherexplanation or construction it could not advise the reader of the studenthandbook that the speech would be forbidden.

The Specific Warning by the Teachers

Respondent read his speech to three different teachers before he gaveit. Mrs. Irene Hicks told him that she thought the speech "was inappropriateand that he probably should not deliver it." Steven DeHart told respondent"that this would indeed cause problems in that it would raise eyebrows." The third teacher, Shawn Madden, did not testify. None of the three suggestedthat the speech might violate a school rule.

The fact that respondent reviewed the text of his speech with threedifferent teachers before he gave it does indicate that he must have beenaware of the possibility that it would provoke an adverse reaction, butthe teachers' responses certainly did not give him any better notice ofthe likelihood of discipline than did the student handbook itself. In myopinion, therefore, the most difficult question is whether the speech wasso obviously offensive that an intelligent high school student must bepresumed to have realized that he would be punished for giving it.

Obvious Impropriety

Justice Sutherland taught us that a "nuisance may be merely a rightthing in the wrong place, -- like a pig in the parlor instead of the barnyard." Vulgar language, like vulgar animals, may be acceptable in some contextsand intolerable in others.

It seems fairly obvious that respondent's speech would be inappropriatein certain classroom and formal social settings. On the other hand, ina locker room or perhaps in a school corridor the metaphor in the speechmight be regarded as rather routine comment. If this be true, and if respondent'saudience consisted almost entirely of young people with whom he conversedon a daily basis, can we -- at this distance -- confidently assert thathe must have known that the school administration would punish him fordelivering it?

For three reasons, I think not. First, it seems highly unlikely thathe would have decided to deliver the speech if he had known that it wouldresult in his suspension and disqualification from delivering the schoolcommencement address. Second, I believe a strong presumption in favor offree expression should apply whenever an issue of this kind is arguable.Third, because the Court has adopted the policy of applying contemporarycommunity standards in evaluating expression with sexual connotations,this Court should defer to the views of the district and circuit judgeswho are in a much better position to evaluate this speech than we are.

I would affirm the judgment of the Court of Appeals.