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CONSTITUTIONAL LAW-A SCHOOL DISTRICT MAY IMPOSE SANCTIONS

UPON A STUDENT IN RESPONSE TO His OFFENSIVELY LEWD AND INDECENT SPEECH WITHOUT VIOLATING HIS RIGHTS, AND A SCHOOL DISCIPLINARY RULE PROSCRIBING OBSCENE LANGUAGE AND ADMONITIONS OF TEACHERS ARE ADE-

QUATE WARNINGS PURSUANT TO STUDENT'S DUE PROCESS RIGHTS.-Bethel

School District v. Fraser(U.S. Sup. Ct. 1986)

Matthew Fraser, a student at Bethel High School in Bethel, Washington, delivered a nominating speech on behalf of a fellow student for a student elective office at which approximately 600 students, many of whom were under the age of fourteen, were present.' The speech was filled with sexual innuendo.' According to teachers who observed it, the speech provoked yelling, sexual gestures, bewilderment, and discomfort among the students.' Prior to delivering the speech, the student discussed it with several of his teachers, two of whom advised him that the speech was inappropriate.' The following day the assistant principal notified the student that the speech was in violation of a disciplinary rule,5 that he was suspended for three days and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. 6 Fraser sought review of this action through the school district's grievance proce1. Bethel School Dist. v. Fraser, 106 S. Ct. 3159, 3162 (1986). 2. Id. at 3167 (Blackmun, J., concurring). The remarks in the speech which are in controversy are the following: I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character is firm-but most ... of all, his belief 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 in spurts-he drives hard, pushing and pushing until finally-he succeeds. Jeff is a man who will go to the very end-even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president-he'll never come between you and the best our high school can be. Id. at 3167 (Blackmun, J., concurring). 3. Id. at 3162. 4. Id. 5. Id. The school took the position that Fraser violated the following published rule: "In addition to the criminal acts defined above, the commission of, or participation in certain noncriminal activities or acts may lead to disciplinary action. Generally, these are acts which disrupt and interfere with the educational process." "Disruptive conduct" is then defined. "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." Id. 6. Id.

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dures which resulted in the disciplinary action being affirmed.7 The student, by his father as guardian ad litem, then brought action in the United States District Court for the Western District of Washington.' He alleged a violation of his first amendment right to freedom of speech and sought both injunctive relief and monetary damages under 42 U.S.C. 1983. 9 The district court held that the school's sanctions violated the student's right to freedom of speech under the first amendment to the United States Constitution, that the school's disruptive-conduct rule was unconstitutionally vague and overbroad, and that the removal of the student's name from the graduation speaker's list violated the due process clause of the fourteenth amendment because the disciplinary rule made no mention of such removal as a possible sanction.10 The district court awarded the student $278 in damages, $12,750 in litigation costs and attorney's fees, and enjoined the school district from preventing the student from speaking at the graduation ceremony. 1 The Court of Appeals for the Ninth Circuit affirmed the judgment of 2 the district court1 by holding that the student's speech was indistinguishable from the protest arm band in Tinker v. Des Moines Independent Com5 On appeal to munity School District." the United States Supreme Court, the Court held, reversed. A school district may impose sanctions upon students in response to their offensively lewd and indecent speech without violating student rights, and school disciplinary rules proscribing obscene language and prior warnings of teachers are adequate to satisfy students' due process rights. Bethel School District v. Fraser, 106 S. Ct. 3159 (1986). The court of appeals decided that the speech given by Fraser was indis7. Id. at 3162-63. 8. Id. at 3163. 9. Id. 42 U.S.C. 1983 (1982) provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. 1983 (1982). 10. Bethel School Dist. v. Fraser, 106 S. Ct. at 3163. 11. Id. 12. Bethel School Dist. v. Fraser, 755 F.2d 1356 (9th Cir. 1985) (The court explicitly rejected the school district's argument that the speech had a disruptive effect on the educational process and reasoned that the school board's "unbridled discretion" to determine what discourse is decent would increase the risk of cementing white, middle class standards for determining what is acceptable and proper speech and behavior in our public schools). 13. 393 U.S. 503 (1969).

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tinguishable from the political "speech" in Tinker." Tinker involved three high school students who were suspended from school for continuing to wear black arm bands as a symbolic protest against the war in Vietnam after being asked to remove them. 5 The United States Supreme Court held that the suspension violated the students' first amendment rights to free speech because the school district failed to establish that the black arm bands had a disruptive effect on the operations of the school or that the school officials had reason to anticipate that the arm bands would cause a disruption. 6 The court of appeals characterized the student response to Fraser's speech as "boisterous," but "hardly disruptive of the educational process."1 Applying the rule from Tinker, the court of appeals held that the Bethel School District failed to carry its burden of demonstrating that Fraser's use of sexual innuendo in the nominating speech substantially disrupted or materially interfered in any way with the educational process. 8 The Supreme Court in Bethel acknowledged, as it did in Tinker, that students do not "shed their constitutional rights of freedom of speech or expression at the schoolhouse gate."' The Court majority, however, viewed the student's speech and the accompanying behavior and reaction by the students at the assembly as having met the Tinker substantial disruption standard.2 0 The Court, in reaching this conclusion, did not rely on a simple application of the Tinker standard to the facts of the case.2 Rather, it took into consideration other factors not focused on in the Tinker case.22 This novel approach reflects the view of the Court that the present case is distinguishable from the Tinker case.22 One of the additional considerations emanated from the Ambach v. Norwick 2' case. The Ambach Court stated that one objective of public education was the "inculcation of fundamental values necessary to the maintedefined those nance of a democratic political system. '25 The Court in Bethel 26 "fundamental values" as "habits and manners of civility. The Court recognized that these fundamental values must include tolerance of divergent political and religious views and must also take into ac14. 15. 16. 17. 18. 19. at 506). 20. 21. 22. 23. 24. 25. 26. Bethel School Dist. v. Fraser, 755 F.2d 1356, 1360 (9th Cir. 1985). Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969). Id. at 514. Bethel School Dist. v. Fraser, 106 S. Ct. at 1360. Id. at 1361. Id. at 3163 (quoting Tinker v. Des Moines Indep. Community School Dist., 393 U.S. Bethel School Dist. v. Fraser, 106 S. Ct. at 3163. Id. Id. Id. 441 U.S. 68 (1979). Id. at 76-77. Bethel School Dist. v. Fraser, 106 S. Ct. at 3163.

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count consideration of the sensibilities of others, and, in a school setting, "the sensibilities of fellow students. ' 7 Thus, the Court created a new balancing test to apply to freedom of speech cases in high schools. The majority opinion articulated the balancing test in the following way: "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."" In deciding that the student's speech exceeded the boundaries of socially appropriate behavior, the Court noted that members of the House of Representatives and the United States Senate, while debating issues, are governed by rules which prohibit the use of impertinent speech and inde2 9 The cent language. Court then begged the question: "[clan it be that what is proscribed in the halls of Congress is beyond the reach of school officials 3 '0
to regulate?

Outside the halls of Congress, the first amendment guarantees wide freedom in matters of adult public discourse.31 Adults and high school students, however, are not to be treated equally when dealing with freedom of 3 speech issues.2 In Cohen v. California, the Court upheld the right to express an antidraft viewpoint in a public place, though staged and performed in such a way that it was highly offensive to most citizens. 4 In New Jersey
v. T.L.O.,8 5 however, the Court reaffirmed that the constitutional rights of

students in public school were not automatically coextensive with the rights of adults in other settings." This dichotomy was put into perspective by 3 7 Judge Newman in Thomas v. Board of Education, in which he wrote that "the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket."38 The Bethel Court upheld this distinction." The majority referred to the content of the student's speech as vulgar, or offensively lewd at various times throughout the opinion.40 The authority for classifying the student's speech as lewd and offensive appears to have been a unilateral decision by the majority. The Court's concern was that the
27. Id. at 3164.
28. Id.

29. Id. 30. Id. 31. Id. 32. Ginsberg v. New York, 390 U.S. 629 (1968); New Jersey v. T.L.O., 469 U.S. 325 (1985). 33. 403 U.S. 15 (1971). 34. Id. at 1784 (Cohen was convicted for the public wearing of a jacket bearing the words "Fuck the Draft"). 35. 469 U.S. 325 (1985). 36. Id. 37. 607 F.2d 1043 (2d Cir. 1979). 38. Id. at 1057. 39. Bethel School Dist. v. Fraser, 106 S.Ct. at 3164-65. 40. Id. at 3163, 3165, 3166.

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speech, while it did not contain obscene words, was full of sexual innuendo. 4' It glorified male sexuality, which was insulting to teenage female students.4 2 The speech could well have been damaging to those in the audience who were only fourteen years of age and on the threshold of sexual
awareness.
4

Justice Brennan, who concurred in the result, reviewed the text of the
student's speech." He disagreed with the majority's description of the stu4 dent's remarks. Justice Brennan commented: "The Court, referring to those remarks as 'obscene,' 'vulgar,' 'lewd,' and 'offensively lewd,' concludes that school officials properly punished [the student] for uttering the speech. Having read the full text of respondent's remarks, I find it difficult to be6

lieve that it is the same speech the Court describes.

4 '

That it was lewd, offensive, or indecent, however, did not have to be established by the Court.4 7 "The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the 4 8
school board.

The Court expanded on the role of the schools as instruments of the state. ' 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." The Court went on to say that such was the conduct of this "confused boy."'" The Court, in the majority opinion, while seemingly deferring much decision-making and enforcement power to school officials, also recognized its role in previously limiting speech that is sexually explicit where the audience may include children. 2 The Court mentioned three ways in which it had carried out this role. 8 First, it upheld local statutes banning the sale of sexually oriented material to minors.5 ' Second, it acknowledged the authority of school officials to remove books that are vulgar. 6 While these two ways dealt with the written language, the next point was particularly relevant to the Bethel decision because it dealt with the issue of preventing
41. Id. at 3165. 42. Id. 43. Id. 44. Id. at 3167 (Brennan, J., concurring). See supra note 2. 45. Id. at 3167 (Brennan, J., concurring). 46. Id. 47. Id. at 3165. 48. Id. See also Ambach v. Norwick, 441 U.S. 68, 78 (1979). 49. Bethel School Dist. v. Fraser, 106 S. Ct. at 3165. 50. Id. 51. Id. 52. Id. 53. Id. at 3165-66. 54. Id. at 3165. See Ginsberg v. New York, 370 U.S. 629 (1968). 55. Bethel School Dist. v. Fraser, 106 S. Ct. at 3165. See Board of Educ. v. Pico, 457 U.S. 853, 871-72 (1982) (plurality opinion).

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spoken vulgarity from reaching minors.56 5 7 In FCC v.Pacifica Foundation, the Court dealt with the power of the Federal Communications Commission to regulate a radio broadcast described as "indecent but not obscene."" The Commission found certain words to be "patently offensive" and noted they were broadcast at a time when children were undoubtedly in the audience." The Commission issued an order declaring that the radio station was guilty of broadcasting indecent language in violation of 18 U.S.C. 1464.60 The court of appeals set aside the order.6 The Supreme Court reversed, concluding that the broadcast was 62 obscene, and rejected the radio station's first amendment argument. To briefly summarize the Bethel opinion, the Court, in a subjective manner, found the student's speech to be vulgar and offensively lewd. The Court ignored the technical application of the Tinker standard and applied a different standard. Justice Marshall, on the other hand, in his dissenting opinion,63 applied the Tinker standard6 4 to the facts of the case." While recognizing the wide latitude given to school officials to regulate student conduct, he concluded that the school board failed to bring evidence sufficient to convince either of the two lower courts that education at Bethel High School was disrupted by the student's speech.66 This argument fails to address the distinction made 67 by the majority between the present case and Tinker. Justice Stevens, also dissenting, attacked the other issue in the case;68 whether the student's due process rights were violated because he had no way of knowing that delivery of the speech would subject him to disciplinary 6 9 sanctions. The majority ruled that the contention that Fraser's due process rights were violated on this basis was "wholly without merit. '' 70 They deter56. Bethel School Dist. v. Fraser, 106 S. Ct. at 3165. 57. 438 U.S. 726 (1978). 58. Id. The Court reviewed an administrative condemnation of the radio broadcast of a humorist who in his own.words described the performance as using "words you couldn't say on the public, ah, airways, urn, the ones you definitely wouldn't say ever." Id. at 729. 59. Id. at 732. 60. Id. The statute reads: "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years or both." 18 U.S.C. 1464 (1982). 61. FCC v. Pacifica, 438 U.S. at 726. 62. Id. at 732. 63. Bethel School Dist. v. Fraser, at 3168-69 (Marshall, J., dissenting). 64. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. at 513. See also supra note 16 and accompanying text. 65. Bethel School Dist. v. Fraser, 106 S. Ct. at 3168-69 (Marshall, J., dissenting). 66. Id. at 3169 (Marshall, J., dissenting). 67. Id. at 3163. 68. Id. at 3169 (Stevens, J., dissenting). 69. Id. at 3166. 70. Id.

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mined that the school disciplinary rule proscribing obscene language 1 and the advice given by the teachers before the student delivered the speech were adequate warning to the student that he could be subjected to sanctions. 2 Justice Stevens answered by agreeing with the court of appeals that the 3 His argument was the disciplinary rule of the school was not violated." ' same as Justice Brennan's in his dissent." Justice Stevens further stated that although the student discussed the speech with three teachers prior to delivery, none of them advised him that he would be suspended for it.73 The majority, however, held that two days' suspension from school did not warrant the same procedural due process protections that are applicable to 7 criminal prosecutionss. It is interesting that while the majority deferred to the judgment of school officials, Justice Stevens deferred to the judgment of the lower courts. 77 He stated "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 78 are." If this is to be interpreted as "the closer you are, the more weight will be given your decision," then perhaps the majority opinion wins on this issue. School officials are even closer than are judges of the district and circuit courts. Perhaps Justice Brennan, in his concurring opinion, summed up the 7' majority's holding the best: "Thus, the Court's holding concerns only the authority that school officials have to restrict a high school student's use of disruptive language in a speech given to a high school assembly. ' o It is clear that those involved in this type of litigation in the future will have to consider the new balancing test s ' which emanates from the binding authority of the United States Supreme Court in this case. Also worthy of notice is the fact that the majority here has upheld the basic principles of federalism by allowing public school officials, who are instruments of the state, to determine what is appropriate behavior and what is not. Only in those rare occasions where school officials have virtually no reason for
71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. See supra note 5. Bethel School Dist. v. Fraser, 106 S. Ct. at 3166-67. Id. at 3170-71 (Stevens, J., dissenting). See supra notes 65-66 and accompanying text. Bethel School Dist. v. Fraser, 106 S. Ct. at 3171 (Stevens, J., dissenting). Id. at 3166. Id. at 3172 (Stevens, J., dissenting). Id. Id. at 3167 (Brennan, J., concurring). Id. at 3168 (Brennan, J., concurring). Id. at 3164. See supra note 28 and accompanying text.

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prohibiting the free speech of students will the Court hold that first amendment rights were violated. Kevin James Greenwood

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