Bethel v. Fraser

478 U.S. 675 (1986)

      Issue: Do the First and Fourteenth Amendments protect a student's right to deliver a vulgar and offensive speech at a school assembly, in violation of a school disciplinary rule?

      Decision: No. Schools do not have the right to control student speech. Federal District Courtacknowledged in Tinker v. Des Moines 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. The Federal District Court 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 non disruptive, 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." The Federal District Court found in his favor and awarded Fraser $278 in damages, $12,750 in litigation costs and attorney's fees, and enjoined the School District from preventing respondent from speaking at the commencement ceremonies. Fraser, who had been elected graduation speaker by a write-in vote of his classmates, delivered a speech at the commencement ceremonies] on June 8, 1983. The Court of Appeals for the Ninth Circuit upheld the judgment of the District Court .

      The U. S. Supreme Court in a granted writ of certiorari reversed the lower courts decisions affirming that the student's free speech rights had not been violated and upheld the suspension. The Court distinguished the sexual speech in this case from the political speech of Tinker v. Des Moines School District and determined that sexually explicit speech is not protected under the Tinker test:

        "A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students."
      The Court also remarked that schools ""must teach by example the shared values of a civilized social order. . . . The schools . . . 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. "

      Justice Burger delivered the opinion of the Court, in which Justices White, Rehnquist and O' Conner joined. Justice Brennan filed an opinion concurring in the judgment and Justice Blackmum concurred in the result. Justices Marshall and Stevens filed dissenting opinions.

      The U.S. Supreme Court held:

      1. . The First Amendment did not prevent the School District from disciplining respondent for giving the offensively lewd and indecent speech at the assembly, that Tinker v. Des Moines School District distinguished in 1969.
      2. Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.
      3. The determination of what manner of speech is inappropriate properly rests with the school board. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language.

      Note of Interest: Justice Stevens in his dissent begins his opinion with the famous quote from the popular movie Gone With The Wind, concluding that Fraser was denied due process because he did not have sufficient notice that he would be disciplined for giving this speech.....

      "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. For three reasons, I think not.

        First, it seems highly unlikely that he would have decided to deliver the speech if he had known that it would result in his suspension and disqualification from delivering the school commencement address.

        Second, I believe a strong presumption in favor of free expression should apply whenever an issue of this kind is arguable.

        Third, because the Court has adopted the policy of applying contemporary community standards in evaluating expression with sexual connotations, this Court should defer to the views of the district and circuit judges who are in a much better position to evaluate this speech than we are.....

        ....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 3 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.*

        More importantly, it indicates that he was probably in a better position to determine whether an audience composed of 600 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 3,000 miles away from the scene of the crime.

      Significance: Justice Burger wrote an opinion discussing the schools right to protect students from indecency. The Bethel case marks the beginning of the Court's erosion of students' free expression rights. (Sexually explicit speech by adults is protected, so long as it is not obscene.) With the exception for sexually explicit speech, the Court has opened the way to further exceptions, including a potential exception for hate speech. Its emphasis on the school's mission to teach civility could be read as a rationale for barring hate speech in some circumstances.

    * See Goss v. Lopez, 419 U.S. 565,(1975).

    DrSeudo says re Bethel v. Fraser: true fact: Matthew Fraser is the debate coach at my high school. It's not every H.S. faculty that can boast a teacher that lent his name to a landmark supreme court case based on his pottymouth.


    Corkill, Phillip. The Law and American Education. Tucson, Arizona. 1991 (Lecture presented at the Flowing Wells School District Administrative Office).

    Important Landmark Cases in Educational Law

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