Bethel School District v. Fraser: Right to Lewd Speeches (07/07/1986)

Bethel School District v. Fraser

Does the First Amendment keep a school district from punishing a high school student for giving a lewd speech at a high school assembly?

Argued: 03/03/1986

Decision Date: 07/07/1986

Decision Record: 7-2; no

Justices in Favor: Thurgood Marshall, John Paul Stevens

Justices Dissenting: Warren Burger, William Brennan, Byron White, Harry Blackmun, Lewis Powell, William Rehnquist, Sandra Day O’Connor

Effect of the Decision

This case ruled the student’s First Amendment rights were not violated by the school’s rules because of his lewd speech.

In Favor

In the favoring side of this case, on the side of the Bethel School District No. 403, attorney William A. Coats argued, “The issue is this case is whether a public school district may regulate indecent speech in a public school setting that does not amount to obscene speech under this Court’s Miller versus California standard.

The facts in this case are that on April 26th, 1983, Matt Fraser, a 17 year old high school senior, gave a speech to the associated student body.

The speech was to introduce his candidate for the vice president’s position of the associated student body.

He gave a crude and vulgar speech.

The speech is set forth in full in the briefs and there’s no purpose to repeat it here.

It is important to note that Mr. Fraser did obtain significant reaction to his speech, that some of the students hooted and hollered, some of the students looked bewildered, some looked embarrassed.

Some students even acted out certain physical acts symbolizing various sexual acts.

After the speech, the school administration investigated the incident and provided Mr. Fraser with his due process rights and suspended him for three days and struck him from the list of those candidates who would be considered to be a graduation speaker.

Mr. Fraser appealed to the district court.

The district court, as affirmed by the Ninth Circuit, has ruled that public school districts can only regulate student speech if it is obscene under the Miller versus California standard, or the one exception they seemingly recognized is if the speech caused a physical disruption or there was a reasonable prediction of a physical disruption.

Finally, the district court, as affirmed by the Ninth Circuit, struck down the district’s disruptive conduct rule, holding it was overbroad and vague.

It is well decided and we agree that students do not shed their constitutional rights at the schoolhouse door.

However, it is equally well decided that those constitutional rights will be administered in a way that is sensitive to the speech environment.

We are here because the Ninth Circuit we believe has misconstrued the extent of the rights a student has under the First Amendment in the public school setting.

They failed to recognize the special relationship between students and their teacher; and finally, they failed to recognize the secondary effects such conduct has in the public school setting.

In beginning our analysis of the First Amendment, it is useful to compare this case with this Court’s decision in Tinker versus Des Moines School District.

In Tinker, the facts were that students wore black arm bands into the public schools in protest of the Vietnam War.

There was nothing intrinsically harmful about the black arm bands.

What the school officials were concerned about was that the black arm bands stood for protest against this Government’s position in Vietnam.

Tinker was a viewpoint discrimination case, where the school officials determined that that viewpoint on an important student policy issue should not be interjected in the school system.

Contrasting that case with this fact pattern, it is noteworthy that Mr. Fraser at testimony was asked,

‘What was the purpose of your speech?’

He responded quite candidly:

‘I gave the speech to humor my audience, in the hopes they would vote for my candidate.’

There’s no overriding public policy.”


In the opposition, on the side of the city of Fraser, attorney Jeffrey T. Haley argued, “I will begin my rebuttal, my response, with some response to positions taken by my opposing counsel, and I will begin with what was the most important error by opposing counsel in characterizing the record.

He said that two teacher told Matt Fraser don’t give it, is what he said.

I will quote from the record:

‘I told Matt that his speech was inappropriate and that he probably should not deliver it.’

That was the first teacher, who was most critical of the speech, Mrs. Hicks.

That’s at page 30 of the joint appendix.

The second teacher, I’m quoting:

‘My response at that time was that I told Matt that this would indeed cause problems and that it would raise eyebrows.’

That was the extent of his warning not to give the speech.

None of them suggested that it might violate a school rule.

If fact, the first teacher, who was most critical of it, said in her testimony afterwards at the trial:

‘I wasn’t that there was a school rule regarding that.’

In this case, if the teachers don’t have any idea that such a speech might violate a school rule, when they are charged with enforcement of the school rule as among their duties as teachers, the rule is clearly so vague and so lacking of adequate notice, at least when it comes to First Amendment rights, freedom of speech, that they cannot punish a student who gave a speech after previewing it with three teachers.”


On the side of the majority, Justice Warren Burger wrote the opinion for the court. He wrote, “Respondent, by his father as guardian ad litem, then brought this action in the United States District Court for the Western District of Washington. Respondent 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. The District Court held that the school’s sanctions violated respondent’s right to freedom of speech under the First Amendment to the United States Constitution, that the school’s disruptive conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent’s name from the graduation speaker’s list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction. The District Court awarded respondent $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. Respondent, 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 affirmed the judgment of the District Court, 755 F.2d 1356 (1985), holding that respondent’s speech was indistinguishable from the protest armband in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). The court explicitly rejected the School District’s argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Appeals also rejected the School District’s argument that it had an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school, reasoning that the School District’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.” 755 F.2d at 1363. Finally, the Court of Appeals rejected the School District’s argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity.”

Then in dissent, Justice Thurgood Marshall wrote, “I agree with the principles that Justice Brennan sets out in his opinion concurring in the judgment. I dissent from the Court’s decision, however, 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 Dist., 393 U.S. 503 (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.”

Also in dissent, Justice John Paul Stevens wrote, “It seems fairly obvious that respondent’s speech would be inappropriate in certain classroom and formal social settings. On the other hand, in a locker room or perhaps in a school corridor, the metaphor in the speech might be regarded as rather routine comment. If this be true, and if respondent’s audience consisted almost entirely of young people with whom he conversed on a daily basis, can we — at this distance — confidently assert that he must have known that the school administration would punish him for delivering it?

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.”

My Opinion:

In this case, I agree with the majority decision. A student’s constitutional rights is of course, not “shed at the schoolhouse gates.” However, their rights must be altered to be fit to be appropriate for the school. For example, you can’t leave the middle of class and go outside to protest for or against something. You also can’t bring armed weapons to school for the safety of everyone else. It’s common sense that constitutional rights inside and outside of school are completely different. The right to freedom of speech is normally applied to things one strongly believes in and stands for. The lewd speech given by Fraser was not appropriate to other kids and did not have any important meaning to it. It made complete sense that the school would discipline him for it and have rules against it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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