U.S. Supreme Court Bethel Sch. Dist. v. Fraser, 478
U.S. 675 (1986) Bethel School District No. 403 v.
Fraser No. 84-1667 Argued March 3, 1986 Decided July 7, 1986 478
U.S. 675 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondent public high school student (hereafter respondent)
delivered a speech nominating a fellow student for a student
elective office at a voluntary assembly that was held during school
hours as part of a school-sponsored educational program in
self-government, and that was attended by approximately 600
students, many of whom were 14-year-olds. During the entire speech,
respondent referred to his candidate in terms of an elaborate,
graphic, and explicit sexual metaphor. Some of the students at the
assembly hooted and yelled during the speech, some mimicked the
sexual activities alluded to in the speech, and others appeared to
be bewildered and embarrassed. Prior to delivering the speech,
respondent discussed it with several teachers, two of whom advised
him that it was inappropriate and should not be given. The morning
after the assembly, the Assistant Principal called respondent into
her office and notified him that the school considered his speech
to have been a violation of the school's "disruptive conduct rule,"
which prohibited conduct that substantially interfered with the
educational process, including the use of obscene, profane language
or gestures. Respondent was given copies of teacher reports of his
conduct, and was given a chance to explain his conduct. After he
admitted that he deliberately used sexual innuendo in the speech,
he was informed that he would be 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. Review
of the disciplinary action through petitioner School District's
grievance procedures resulted in affirmance of the discipline, but
respondent was allowed to return to school after serving only two
days of his suspension. Respondent, by his father (also a
respondent) as guardian ad litem, then filed suit in
Federal District Court, alleging a violation of his First Amendment
right to freedom of speech and seeking injunctive relief and
damages under 42 U.S.C. § 1983. The court held that the school's
sanctions violated the First Amendment, that the school's
disruptive conduct rule was 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. The court awarded respondent monetary relief and
enjoined the Page 478 U. S. 676 School District from preventing him from speaking at the
commencement ceremonies. The Court of Appeals affirmed. 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. Tinker v. Des Moines
Independent Community School Dist., 393 U.
S. 503 , distinguished. 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. 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 school, and 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, FCC v. Pacifica Foundation, 438 U.
S. 726 , as well as 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. Ginsberg v. New York, 390 U. S. 629 .
Petitioner School District acted entirely within its permissible
authority in imposing sanctions upon respondent in response to his
offensively lewd and indecent speech, which had no claim to First
Amendment protection. Pp. 478 U. S.
680 -686.

															2. There is no merit to respondent's contention that the
circumstances of his suspension violated due process because he had
no way of knowing that the delivery of the speech would subject him
to disciplinary sanctions. 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. The school disciplinary rule
proscribing "obscene" language and the prespeech admonitions of
teachers gave adequate warning to respondent that his lewd speech
could subject him to sanctions. P. 478 U. S.
686 .

															755 F.2d 1356, reversed.

															BURGER, C.J., delivered the opinion of the Court, in which
WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN J.,
filed an opinion concurring in the judgment, post, p. 478 U. S. 687 .
BLACKMUN, J. concurred in the result. MARSHALL, J., post, p. 478 U. S. 690 ,
and STEVENS, J., post, p. 478 U. S. 691 ,
filed dissenting opinions. Page 478 U. S. 677 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. I A On April 26, 1983, respondent Matthew N. Fraser, a student at
Bethel High School in Pierce County, Washington, delivered a speech
nominating a fellow student for student elective office.
Approximately 600 high school students, many of whom were
14-year-olds, attended the assembly. Students were required to
attend the assembly or to report to the study hall. The assembly
was part of a school-sponsored educational program in
self-government. Students who elected not to attend the assembly
were required to report to study hall. During the entire speech,
Fraser referred Page 478 U. S. 678 to his candidate in terms of an elaborate, graphic, and explicit
sexual metaphor.

															Two of Fraser's teachers, with whom he discussed the contents of
his speech in advance, informed him that the speech was
"inappropriate and that he probably should not deliver it," App.
30, and that his delivery of the speech might have "severe
consequences." Id. at 61.

															During Fraser's delivery of the speech, a school counselor
observed the reaction of students to the speech. Some students
hooted and yelled; some by gestures graphically simulated the
sexual activities pointedly alluded to in respondent's speech.
Other students appeared to be bewildered and embarrassed by the
speech. One teacher reported that, on the day following the speech,
she found it necessary to forgo a portion of the scheduled class
lesson in order to discuss the speech with the class. Id. at 41-44.

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

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

															The morning after the assembly, the Assistant Principal called
Fraser into her office and notified him that the school considered
his speech to have been a violation of this rule. Fraser was
presented with copies of five letters submitted by teachers,
describing his conduct at the assembly; he was given a chance to
explain his conduct and he admitted to having given the speech
described and that he deliberately used sexual innuendo in the
speech. Fraser was then informed that he would be 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.

															Fraser sought review of this disciplinary action through the
School District's grievance procedures. The hearing officer
determined that the speech given by respondent was "indecent, lewd,
and offensive to the modesty and decency of Page 478 U. S. 679 many of the students and faculty in attendance at the assembly."
The examiner determined that the speech fell within the ordinary
meaning of "obscene," as used in the disruptive conduct rule, and
affirmed the discipline in its entirety. Fraser served two days of
his suspension, and was allowed to return to school on the third
day. B 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 Page 478 U. S. 680 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.

															We granted certiorari, 474 U.S. 814 (1985). We reverse. II This Court acknowledged in Tinker v. Des Moines Independent
Community School Dist., supra, that students do not "shed
their constitutional rights to freedom of speech or expression at
the schoolhouse gate." Id. at 474 U. S. 506 .
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." Id. at 393 U. S.
508 . Page 478 U. S. 681 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 600
students. III 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."

															C. Beard & M. Beard, New Basic History of the United States
228 (1968). In Ambach v. Norwick, 441 U. S.
68 , 441 U. S. 76 -77
(1979), we echoed the essence of this statement of the objectives
of public education as the "inculcat[ion of] fundamental values
necessary to the maintenance of a democratic political system."

															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.

															In our Nation's legislative halls, where some of the most
vigorous political debates in our society are carried on, there are
rules prohibiting the use of expressions offensive to other
participants in the debate. The Manual of Parliamentary Page 478 U. S. 682 Practice, drafted by Thomas Jefferson and adopted by the House
of Representatives to govern the proceedings in that body,
prohibits the use of "impertinent" speech during debate, and
likewise provides that "[n]o person is to use indecent language
against the proceedings of the House." Jefferson's Manual of
Parliamentary Practice §§ 359, 360, reprinted in Manual and Rules
of House of Representatives, H.R. Doc. No. 97-271, pp. 158-159
(1982); see id. at 111, n. a (Jefferson's Manual governs
the House in all cases to which it applies). The Rules of Debate
applicable in the Senate likewise provide that a Senator may be
called to order for imputing improper motives to another Senator or
for referring offensively to any state. See Senate
Procedure, S. Doc. No. 97-2, Rule XIX, pp. 568-569, 588-591 (1981).
Senators have been censured for abusive language directed at other
Senators. See Senate Election, Expulsion and Censure Cases
from 1793 to 1972, S.Doc. No. 92-7, pp. 95-98 (1972) (Sens.
McLaurin and Tillman); id. at 152-153 (Sen. McCarthy). Can
it be that what is proscribed in the halls of Congress is beyond
the reach of school officials to regulate?

															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. See Cohen v.
California, 403 U. S. 15 (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., 469 U. S. 325 , 469 U. S.
340 -342 (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 Page 478 U. S. 683 Dist., 607 F.2d 1043, 1057 (CA2 1979) (opinion
concurring in result).

															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." Tinker, 393 U.S. at 393 U. S. 508 ; see Ambach v. Norwick, supra. 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. See App. 77-81. The speech could well be seriously
damaging to its less mature audience, many of whom were only 14
years old and on the threshold of awareness of human sexuality.
Some students were reported as Page 478 U. S. 684 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, 390 U. S. 629 (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, 457 U. S. 853 , 457 U. S.
871 -872 (1982) (plurality opinion); id. at 457 U. S.
879 -881 (BLACKMUN, J., concurring in part and in
judgment); id. at 457 U. S. 918 -920 (REHNQUIST, J., dissenting). 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, 438 U. S. 726 (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." Id. at 438 U. S. 729 ; see also id. at 438 U. S.
751 -755 (Appendix to opinion of the Court). The
Commission concluded that "certain words depicted sexual and
excretory activities in a patently offensive manner, [and]
noted Page 478 U. S. 685 that 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. 438 U.S. at 438 U. S. 732 .
The Court of Appeals set aside the Commission's determination, and
we reversed, reinstating the Commission's citation of the station.
We concluded that the broadcast was properly considered "obscene,
indecent, or profane" within the meaning of the statute. 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, 315 U.S. at 315 U. S.
572 ." Id. at 438 U. S.
746 .

															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 towards 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 Page 478 U. S. 686 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."

															393 U.S. at 526. IV 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., 469 U.S. at 469 U. S. 340 .
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, 416 U. S. 134 , 416 U. S. 161 (1974) (REHNQUIST, J., concurring). 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. Cf. Goss v. Lopez, 419 U.
S. 565 (1975). The school disciplinary rule proscribing
"obscene" language and the prespeech admonitions of teachers gave
adequate warning to Fraser that his lewd speech could subject him
to sanctions. * Page 478 U. S. 687 The judgment of the Court of Appeals for the Ninth Circuit
is Reversed. JUSTICE BLACKMUN concurs in the result.

															* Petitioners also challenge the ruling of the District Court
that the removal of Fraser's name from the ballot for graduation
speaker violated his due process rights because that sanction was
not indicated as a potential punishment in the school's
disciplinary rules. We agree with the Court of Appeals that this
issue has become moot, since the graduation ceremony has long since
passed and Fraser was permitted to speak in accordance with the
District Court's injunction. No part of the damages award was based
upon the removal of Fraser's name from the list, since damages were
based upon the loss of two days' schooling.

															JUSTICE BRENNAN, concurring in the judgment.

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

															"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."

															App. 47. The Court, referring to these remarks as "obscene,"
"vulgar," "lewd," and "offensively lewd," concludes that school
officials properly punished respondent for 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 -- and all that need be said -- is that, in light of the
discretion school officials have to teach high school students how
to conduct civil and effective public discourse, and to prevent
disruption of school educational activities, it was Page 478 U. S. 688 not unconstitutional for school officials to conclude, under the
circumstances of this case, that respondent's remarks exceeded
permissible limits. Thus, while I concur in the Court's judgment, I
write separately to express my understanding of the breadth of the
Court's holding.

															The Court today reaffirms the unimpeachable proposition that
students do not " shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.'" Ante at 478 U. S. 680 (quoting Tinker v. Des Moines Independent Community School
Dist., 393 U. S. 503 , 393 U. S. 506 (1969)). If respondent had given the same speech outside of the
school environment, he could not have been penalized simply because
government officials considered his language to be inappropriate, see Cohen v. California, 403 U. S. 15 (1971); the Court's opinion does not suggest otherwise. [ Footnote 1 ] Moreover, despite the
Court's characterizations, the language respondent used is far
removed from the very narrow class of "obscene" speech which the
Court has held is not protected by the First Amendment. Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 635 (1968); Roth v. United States, 354 U.
S. 476 , 354 U. S. 485 (1957). It is true, however, that the State has interests in
teaching high school students how to conduct civil and effective
public discourse and in avoiding disruption of educational school
activities. Thus, the Court holds that, under certain
circumstances, high school students may properly be reprimanded for
giving a speech at a high school assembly which school officials
conclude disrupted the school's educational Page 478 U. S. 689 mission. [ Footnote 2 ]
Respondent's speech may well have been protected had he given it in
school but under different circumstances, where the school's
legitimate interests in teaching and maintaining civil public
discourse were less weighty.

															In the present case, school officials sought only to ensure that
a high school assembly proceed in an orderly manner. There is no
suggestion that school officials attempted to regulate respondent's
speech because they disagreed with the views he sought to express. Cf. Tinker, supra. Nor does this case involve an attempt
by school officials to ban written materials they consider
"inappropriate" for high school students, cf. Board of
Education v. Pico, 457 U. S. 853 (1982), or to limit what students should hear, read, or learn
about. 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.

															The authority school officials have to regulate such speech by
high school students is not limitless. See Thomas v. Board of
Education, Granville Central School Dist., 607 F.2d 1043, 1057
(CA2 1979) (Newman, J., concurring in result) ("[S]chool officials
. . . do [not] have limitless discretion to apply their own notions
of indecency. Courts have a First Page 478 U. S. 690 Amendment responsibility to insure that robust rhetoric . . . is
not suppressed by prudish failures to distinguish the vigorous from
the vulgar"). Under the circumstances of this case, however, I
believe that school officials did not violate the First Amendment
in determining that respondent should be disciplined for the
disruptive language he used while addressing a high school
assembly. [ Footnote 3 ] Thus, I
concur in the judgment reversing the decision of the Court of
Appeals.

															[ Footnote 1 ]

															In the course of its opinion, the Court makes certain remarks
concerning the authority of school officials to regulate student
language in public schools. For example, the Court notes that
"[n]othing in the Constitution prohibits the states from insisting
that certain modes of expression are inappropriate and subject to
sanctions." Ante at 478 U. S. 683 .
These statements obviously do not, and indeed, given our prior
precedents, could not, refer to the government's authority
generally to regulate the language used in public debate outside of
the school environment.

															[ Footnote 2 ]

															The Court speculates that the speech was "insulting" to female
students, and "seriously damaging" to 14-year-olds, so that school
officials could legitimately suppress such expression in order to
protect these groups. Ante at 478 U. S. 683 .
There is no evidence in the record that any students, male or
female, found the speech "insulting." And while it was not
unreasonable for school officials to conclude that respondent's
remarks were inappropriate for a school-sponsored assembly, the
language respondent used does not even approach the sexually
explicit speech regulated in Ginsberg v. New York, 390 U. S. 629 (1968), or the indecent speech banned in FCC v. Pacifica
Foundation, 438 U. S. 726 (1978). Indeed, to my mind, respondent's speech was no more
"obscene," "lewd," or "sexually explicit" than the bulk of programs
currently appearing on prime time television or in the local
cinema. Thus, I disagree with the Court's suggestion that school
officials could punish respondent's speech out of a need to protect
younger students.

															[ Footnote 3 ]

															Respondent served two days' suspension and had his name removed
from the list of candidates for graduation speaker at the school's
commencement exercises, although he was eventually permitted to
speak at the graduation. While I find this punishment somewhat
severe in light of the nature of respondent's transgression, I
cannot conclude that school officials exceeded the bounds of their
disciplinary authority.

															JUSTICE MARSHALL, dissenting.

															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. Page 478 U. S. 691 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.
[ Footnote 2/1 ] 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. Page 478 U. S. 692 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
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. See
Goss v. Lopez, 419 U. S. 565 , 419 U. S.
574 -575 (1975). 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. [ Footnote
2/2 ]

															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. [ Footnote 2/3 ] But it Page 478 U. S. 693 does mean that he should not be disciplined for speaking frankly
in a school assembly if he had no reason to anticipate punitive
consequences.

															One might conclude that respondent should have known that he
would be punished 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 impropriety is so obvious that no specific
notice was required. I discuss each theory in turn. The Disciplinary Rule At the time the discipline was imposed, as well as in its
defense of this lawsuit, the school took the position that
respondent 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. Conduct which materially and
substantially interferes with the educational process is
prohibited, including the use of obscene, profane language or
gestures."

															755 F.2d 1356, 1357, n. 1 (CA9 1985).

															Based on the findings of fact made by the District Court, the
Court of Appeals concluded that the evidence did not show "that the
speech had a materially disruptive effect on the educational
process." Id. at 1361. The Court of Appeals explained the
basis for this conclusion:

															"[T]he record now before us yields no evidence that Fraser's use
of a sexual innuendo in his speech materially interfered with
activities at Bethel High School. While the students' reaction to
Fraser's speech may fairly be characterized as boisterous, it was
hardly disruptive Page 478 U. S. 694 of the educational process. In the words of Mr. McCutcheon, the
school counselor whose testimony the District relies upon, the
reaction of the student body 'was not atypical to a high school
auditorium assembly.' In our view, a noisy response to the speech
and sexually suggestive movements by three students in a crowd of
600 fail to rise to the level of a material interference with the
educational process that justifies impinging upon Fraser's First
Amendment right to express himself freely."

															"We find it significant that, although four teachers delivered
written statements to an assistant principal commenting on Fraser's
speech, none of them suggested that the speech disrupted the
assembly or otherwise interfered with school activities. See Finding of Fact No. 8. Nor can a finding of material
disruption be based upon the evidence that the speech proved to be
a lively topic of conversation among students the following
day." Id. at 1360-1361.

															Thus, the evidence in the record, as interpreted by the District
Court and the Court of Appeals, makes it perfectly clear that
respondent's speech was not "conduct" prohibited by the
disciplinary rule. [ Footnote 2/4 ]
Indeed, even if the language of the rule could be stretched to
encompass the nondisruptive use of obscene or profane language,
there is no such language in respondent's speech. What the speech
does contain is a sexual metaphor that may unquestionably be
offensive to some listeners in some settings. But if an impartial
judge puts his Page 478 U. S. 695 or her own views about the metaphor to one side, I simply cannot
understand how he or she could conclude that it is embraced by the
above-quoted rule. At best, the rule is sufficiently ambiguous
that, without a further explanation or construction, it could not
advise the reader of the student handbook that the speech would be
forbidden. [ Footnote 2/5 ] The Specific Warning by the Teachers Respondent read his speech to three different teachers before he
gave it. Mrs. Irene Hicks told him that she thought the speech "was
inappropriate, and that he probably should not deliver it." App.
30. Steven DeHart told respondent "that this would indeed cause
problems in that it would raise eyebrows." Id. at 61. The
third teacher, Shawn Madden, did not testify. None of the three
suggested that the speech might violate a school rule. Id. at 49-50.

															The fact that respondent reviewed the text of his speech with
three different teachers before he gave it does indicate that he
must have been aware of the possibility that it would provoke an
adverse reaction, but the teachers' responses certainly did not
give him any better notice of the likelihood of discipline than did
the student handbook itself. In my opinion, therefore, the most
difficult question is whether the speech was so obviously offensive
that an intelligent high school student must be presumed to have
realized that he would be punished for giving it. Page 478 U. S. 696 Obvious Impropriety Justice Sutherland taught us that a "nuisance may be merely a
right thing in the wrong place, -- like a pig in the parlor instead
of the barnyard." Euclid v. Ambler Realty Co., 272 U. S. 365 , 272 U. S. 388 (1926). Vulgar language, like vulgar animals, may be acceptable in
some contexts and intolerable in others. See FCC v. Pacifica
Foundation, 438 U. S. 726 , 438 U. S. 750 (1978). Indeed, even ordinary, inoffensive speech may be wholly
unacceptable in some settings. See Schenck v. United
States, 249 U. S. 47 , 249 U. S. 52 (1919); Pacifica, supra, at 438 U. S.
744 -745.

															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.

															I would affirm the judgment of the Court of Appeals.

															[ Footnote 2/1 ]

															"Because every university's resources are limited, an
educational institution must routinely make decisions concerning
the use of the time and space that is available for extracurricular
activities. In my judgment, it is both necessary and appropriate
for those decisions to evaluate the content of a proposed student
activity. I should think it obvious, for example, that, if two
groups of 25 students requested the use of a room at a particular
time -- one to view Mickey Mouse cartoons and the other to rehearse
an amateur performance of Hamlet -- the First Amendment would not
require that the room be reserved for the group that submitted its
application first. Nor do I see why a university should have to
establish a 'compelling state interest' to defend its decision to
permit one group to use the facility and not the other. In my
opinion, a university should be allowed to decide for itself
whether a program that illuminates the genius of Walt Disney should
be given precedence over one that may duplicate material adequately
covered in the classroom. Judgments of this kind should be made by
academicians, not by federal judges, and their standards for
decision should not be encumbered with ambiguous phrases like
'compelling state interest.'" Widmar v. Vincent, 454 U. S. 263 , 454 U. S.
278 -279 (1981) (STEVENS, J., concurring in judgment)
(footnotes omitted).

															"Any student of history who has been reprimanded for talking
about the World Series during a class discussion of the First
Amendment knows that it is incorrect to state that a 'time, place,
or manner restriction may not be based upon either the content or
subject matter of speech.'" Consolidated Edison Co. v. Public Service Comm'n of
N.Y., 447 U. S. 530 , 447 U. S.
544 -545 (1980) (STEVENS, J, concurring in judgment)

															[ Footnote 2/2 ]

															As the Court of Appeals noted, there "is no evidence in the
record indicating that any students found the speech to be
offensive." 755 F.2d 1356, 1361, n. 4 (CA9 1985).

															In its opinion today, the Court describes respondent as a
"confused boy," ante at 478 U. S. 683 ,
and repeatedly characterizes his audience of high school students
as "children," ante at 478 U. S. 682 ,
684. When a more orthodox message is being conveyed to a similar
audience, four Members of today's majority would treat high school
students like college students, rather than like children. See
Bender v. Williamsport Area School Dist., 475 U.
S. 534 (1986) (dissenting opinions).

															[ Footnote 2/3 ] See Arnold v. Carpenter, 459 F.2d 939, 944 (CA7 1972)
(STEVENS, J., dissenting).

															[ Footnote 2/4 ]

															The Court's reliance on the school's authority to prohibit
"unanticipated conduct disruptive of the educational process," ante at 478 U. S. 686 ,
is misplaced. The findings of the District Court, which were upheld
by the Court of Appeals, established that the speech was not
"disruptive." Departing from our normal practice concerning factual
findings, the Court's decision rests on "utterly unproven,
subjective impressions of some hypothetical students." Bender
v. Williamsport Area School Dist., 475 U.S. at 475 U. S. 553 (BURGER, C.J., dissenting).

															[ Footnote 2/5 ]

															The school's disruptive conduct rule is entirely concerned with
"the educational process." It does not expressly refer to
extracurricular activities in general, or to student political
campaigns or student debates. In contrast,

															"[i]n our Nation's legislative halls, where some of the most
vigorous political debates in our society are carried on, there are
rules prohibiting the use of expressions offensive to other
participants in the debate." See ante at 478 U. S. 681 .
If a written rule is needed to forewarn a United States Senator
that the use of offensive speech may give rise to discipline, a
high school student should be entitled to an equally unambiguous
warning. Unlike the Manual of Parliamentary Practice drafted by
Thomas Jefferson, this School District's rules of conduct contain
no unequivocal prohibition against the use of "impertinent" speech
or "indecent language."

Summary: The Supreme Court ruled that a public high school student's lewd and indecent speech at a school assembly was not protected by the First Amendment, upholding the school's disciplinary action. The Court emphasized that schools have a responsibility to teach students the boundaries of socially appropriate behavior and that the student's speech was disruptive and inappropriate. The Court also noted the young age of the audience and the school's disruptive conduct rule, which prohibited obscene language. This case sets a precedent for schools' authority to regulate student speech that is deemed offensive or disruptive.