NOTES
SILENCING STUDENT SPEECH: BETHEL
SCHOOL DISTRICT NO. 403 v FRASER
SARA SLAFF
INTRODUCTION
Courts consistently have afforded public high school students
wider latitude in the area of the first amendment guarantee of free
expression' than in the exercise of other constitutional protections. 2
1. The first amendment provides in pertinent part: "Congress shall make no law...
abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances." U.S. CONST. amend. I.
The first amendment applies to both federal and state action. See Gitlow v. New York, 268
U.S. 652, 666 (1925) (applying first amendment to states through due process clause of 14th
amendment).
First amendment theory is founded on the "marketplace of ideas" concept. Abrams v.
United States, 250 U.S. 616, 630 (1919) (HolmesJ, dissenting) (noting that "ultimate good
desired is better reached by free trade in ideas" and that "the best test of truth is the power of
the thought to get itself accepted in the competition of the market..."). The Supreme Court
has interpreted the first amendment broadly to provide public access to information and to
establish a free exchange of ideas. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254,
269-70 (1964) (finding that public debate must be "uninhibited, robust, and wide-open" and
may include sharp attacks on public officials); Roth v. United States, 354 U.S. 476, 484 (1957)
(contending that discussion of desired political and social change is objective of first amendment); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (stating that government responsiveness
to will of people depends on free debate and exchange of ideas, and that proper function of
speech is to invite dispute); Associated Press v. United States, 326 U.S. 1, 20 (1945) (noting
that to protect public welfare information must be from diverse and antagonistic sources);
Stromberg v. California, 283 U.S. 359, 369 (1931) (finding that free political debate forces
government to respond to will of people).
Although the first amendment is not absolute, the threshold for determining what speech is
beyond first amendment protection, however, is necessarily high. See Gillow, 268 U.S. at 666
(stating that constitutional right to free speech and press does not confer absolute right to
speak or publish without responsibility); see, e.g., Miller v. California, 413 U.S. 15, 24 (1973)
(finding that before material can be regulated because it is obscene, it must meet three part
test: material must primarily appeal to prurient interest in sex; offend local community standards of decency; and lack serious literary, artistic, political or scientific value); Sullivan, 376
U.S. at 271 (finding truth absolute defense to defamation action); Chaplinsky v. New Hampshire, 315 U.S. 568,573 (1942) (protecting "derisive and annoying words" unless these words
incite breach of peace).
2. The public high school student is a constitutionally enigmatic figure. He is a "person" under the Constitution but his rights are not coextensive with those of adults. Compare
203
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Students' right to free speech is premised on the state's compelling
interest in the development of its future citizens. 3 By engaging in a
free exchange of ideas, students prepare for participation in democratic self-government. 4 The first amendment rights of public high
school students, however, are not absolute. 5 Especially in the
Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 511 (1969) (stating that
students possess fundamental rights that state must preserve) and In re Gault, 387 U.S. 1, 13
(1967) (contending that neither 14th amendment nor Bill of Rights is for adults alone) with
Ginsberg v. New York, 390 U.S. 629, 638 (1968) (finding that power of state to control conduct of children reaches beyond scope of its authority over adults even when protected freedoms are invaded). A student is entitled to minimum due process procedures before he can
be denied a public education, but he has no constitutional right to attend public school. Compare Goss v. Lopez, 419 U.S. 565, 579 (1975) (holding that public school students facing suspension must, at a minimum, be given some kind of hearing) with San Antonio Indep. School
Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (finding no implicit or explicit constitutional right to
an education). Although the community encourages the student to attend school and learn
values essential to good citizenship, once the student is inside the schoolhouse gates he is
unprotected from corporal punishment and search and seizure by school officials. Compare
Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (explaining that education is foundation of
good citizenship and principal instrument in awakening child to cultural values) and West Va.
Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (maintaining that free, public education
must not be partisan or enemy of any class, creed, party, or faction to be faithful to ideal of
secular instruction and political neutrality) with NewJersey v. T.L.0., 469 U.S. 325, 341 (1985)
(holding that legality of student search depends on lower standard of reasonableness than
traditional fourth amendment probable cause requirement) and Ingraham v. Wright, 430 U.S.
651, 670 (1977) (finding cruel and unusual punishment clause of eighth amendment inapplicable to disciplinary corporal punishment in public schools).
In contrast, courts consistently have recognized students' first amendment rights. See, e.g.,
Tinker, 393 U.S. at 506 (stating that students do not shed constitutional right to freedom of
speech at schoolhouse gate); Barnette, 319 U.S. at 641 (maintaining that free public education
will not be partisan or enemy to any class, creed, party, or faction on theory that freedom of
thought strengthens individuality); Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966) (allowing students, as citizens, first amendment right to wear freedom buttons in school provided that exercising rights does not materially and substantially interfere with regularly
scheduled school activities).
3. See Prince v. Massachusetts, 321 U.S. 158, 168 (1944) (concluding that democratic
society relies upon healthy, well-rounded growth of young people into full maturity as citizens); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (finding role of educating
children for citizenship the reason for scrupulous protection of their constitutional freedoms);
see also Project, Education and the Law: State Interestsand Individual Rights, 74 MICH. L. REv. 1373,
1373-74, 1455-65 (1976) (explaining that state seeks two goals through educational system:
development of basic academic skills and inculcation of values essential for cohesive, harmonious, and law abiding society). See generally A. MORRIS, THE CONSTrrrIToN AND AMERICAN
EDUCATION 194 (1980) (stating that public education is directed toward achieving responsible
freedom in citizenry); L. TRIBE, AMERICAN CONSTrrTUIONAL LAW § 15-6 (1978) (detailing role
public school plays as conduit for national pride and community morality); Garvey, Children
and the First Amendment, 57 TEx. L. REV. 321, 321-79 (1979) (arguing that state's interest in
children as future citizens is furthered by affirming children's free speech rights rather than by
negating them because free speech plays socially desirable role in child's development).
4. See Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (stating that nation's
future depends on leaders trained through wide exposure to robust exchange of ideas);
Shelton v. Tucker, 364 U.S. 479, 487 (1960) (finding protection of constitutional freedoms to
be most vital in American schools); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637
(1943) (stating that scrupulous protection of young peoples rights teaches them important
governmental principles).
5. See FCC v. Pacifica Found., 438 U.S. 726, 750 (1978) (prohibiting radio broadcast of
indecent speech during hours when children may be listening); Ginsberg v. New York. 390
1987]
SILENCING STUDENT SPEECH
205
school environment, the need for discipline and order weighs heavily against the constitutional protection accorded students. 6
In Bethel School District No. 403 v. Fraser,7 the Supreme Court confronted a conflict between a high school student's right to free expression and the public school's interest in maintaining order and
discipline. Reversing the United States Court of Appeals for the
Ninth Circuit, the Supreme Court held in Bethel that school authorities, acting in loco parentis, can sanction a student's "lewd" and "indecent" speech in a school assembly.8 By focusing on the offensive
character of the student's language instead of the speech's disruptive effect, the Court in Bethel narrowed its view of students' first
amendment entitlements.9
This Note examines the free speech rights of students in the
school environment.1 0 Part I of the Note presents the facts of Bethel.
Part II discusses prior Supreme Court decisions that illustrate the
tension between school administrators' interest in maintaining order and discipline in school and students' right to free expression.
Part III analyzes the Court's rationale in Bethel and Part IV criticizes
the Court's holding and reasoning. Part V describes the impact of
the decision and suggests that the Court should have reached a different result by applying the standard developed in prior student
speech cases. The Note concludes that school authorities should be
U.S. 629, 640 (1968) (upholding state statute prohibiting sale to minors under seventeen of
certain materials not considered obscene for adults).
6. Several early cases placed limitations on student speech. See, e.g., Wooster v. Sunderland, 27 Cal. App. 51, 55, 148 P. 959, 960 (1915) (upholding expulsion of student for speech
criticizing school board); State ex reL Dresser v. District Bd. of School Dist. No. 1, 135 Wis.
619, 622, 116 N.W. 232, 235 (1908) (upholding expulsion of student who published poem
satirizing school rules in local newspaper). Decisions by the Supreme Court in the 1960's,
however, made such restrictions an unconstitutional abridgement of free speech. See Pickering v. Board of Educ., 391 U.S. 563, 573 (1968) (stating that free and open debate on issues of
legitimate public concern is vital to informed decisionmaking); New York Times v. Sullivan,
376 U.S. 254, 270 (1964) (affirming profound national commitment to principle that debate
on public issues should be "uninhibited, robust, and wide-open" and may include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public officials).
7. 106 S. Ct. 3159 (1986).
8. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3166 (1986).
The common law doctrine of in loco
parentis, by which state officials stand in a parental relationship to students, historically extended enormous control to school authorities. L.
FISCHER & D. SCHIMMEL, THE RIGHTS OF STUDENTS AND TEACHERS 8-10 (1982). The doctrine
assumes a voluntary delegation of authority from parent to school official; an assumption that
is arguably vitiated by compulsory attendance laws. See A. MORRIS, THE CONSTITUTION AND
AMERICAN EDUCATION 128-29 (1980) (revealing that school officials' actions, as representatives of government, do not truly reflect parental concerns); Goldstein, The Scope and Sources of
School Board Authority to Regulate Student Conduct and Status: A N(onconstitutionalAnalysis, 117 U.
PA. L. REV. 373, 377-84 (1969) (reviewing in loco
parentis doctrine as it applies to school's
disciplinary power over students).
9. Bethel, 106 S. Ct. at 3164.
10. "Speech," as it is used in this context, includes symbolic conduct as well as specific
words.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:203
required to demonstrate a legitimate state interest before students'
free speech rights may be abridged.
I.
BETHEL SCHOOL DISTRICT
No. 403 V.
FRASER
With the words, "I know a man who is firm-he's firm in his
pants,"'" seventeen-year-old Matthew N. Fraser began a speech
nominating a classmate for an elective student office at Bethel High
School in Takoma, Washington. 12 The speech, delivered before a
voluntary assembly of 600 students, was part of a school-sponsored
educational program in self-government.1 3 Reaction in the audience ranged from bewilderment to hoots and yells.' 4 Three students graphically simulated the sexual activities alluded to in
Fraser's speech. 15 School officials, however, had no difficulty mainassembly and the next speaker continued
taining order during the
16
without interruption.
The day after the speech, school officials told Fraser he had violated the school's disruptive conduct rule 17 and suspended him
from attending school for three days.1 8 The school also removed
11. Bethel, 106 S. Ct. at 3167 (Brennan, J., concurring). The complete text of Matthew
Fraser's speech provides:
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 forJeff for A.S.B. vice-president - he'll never come between you and the
best our high school can be.
Id.
12. Id. at 3162. Fraser consulted with three teachers before presenting his speech. Two
of the teachers said the speech was inappropriate and advised against delivering it, but none
of them suggested the speech would violate school rules. Id. at 3171 (Stevens,J., dissenting).
13. Id. at 3162. Students had the option of attending study hall instead of the assembly if
they did not wish to hear the speeches. Id.
14. Id.
15. Id.
16. Jeff Kuhlman won the election. Fraser v. Bethel School Dist. No. 403, 755 F.2d 1356,
1357, 1360 (9th Cir. 1985), rev'd, 106 S. Ct. 3159 (1986). The only evidence presented to
support the claim that the speech was disruptive is the testimony of one teacher who said
students' interest in Fraser's speech prompted a ten minute deviation from class work for a
discussion of the speech. Id. at 1360.
17. The disruptive conduct rule, published in the school's handbook, states:
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.
Bethel School Dist. No. 403 v. Fraser, 106 S.Ct. 3159, 3170 (1986) (Stevens, J., dissenting).
18. Id. at 3162.
1987]
SILENCING STUDENT SPEECH
207
Fraser's name from a previously approved list of graduation speakers.' 9 Despite the school administration's action, Fraser's classmates elected him the graduation speaker by a write-in vote. 20
Fraser initiated a grievance of the disciplinary action by making a
submission to the superintendent of the Bethel School District. 2 '
After his grievance was denied by the school district, Fraser, with his
mother as guardian, 22 filed a civil rights action. The district court
issued a declaratory judgment that Bethel School District had violated Fraser's constitutional rights because the disruptive conduct
rule was unconstitutionally vague and overbroad. 23 The court
awarded Fraser $278 in damages and $12,750 in costs and attorney's fees.2 4 Affirming the district court, the Ninth Circuit held that
because the school district had failed to demonstrate that Fraser's
speech had a materially disruptive effect on the educational process,
the first amendment prohibited the school district from punishing
the "indecent" speech. 25 The Supreme Court reversed the judgment of the Ninth Circuit. 26 The Court, considering society's compelling interest in teaching students the boundaries of socially
appropriate behavior, held that public school officials were justified
in sanctioning Fraser for his "offensively lewd and indecent
19. Id.
20. Fraser had received the "Top Speaker" award in statewide debate championships for
two consecutive years. Fraser v. Bethel School Dist. No. 403, 755 F.2d 1356, 1357 (9th Cir.
1985), rev'd, 106 S. Ct. 3159 (1986).
21. Bethel, 106 S. Ct. at 3163. The hearing officer found Fraser's speech indecent, lewd,
and offensive to the modesty and decency of students in attendance and determined that the
speech fell within the disruptive conduct rule's definition of obscene. Fraser filed a civil rights
action under 42 U.S.C. § 1983 in the United States District Court for the Western District of
Washington. He alleged violations of his federal constitutional rights and sought declaratory,
injunctive, and monetary relief. Id. at 3162-63.
42 U.S.C. § 1983 provides in pertinent part: "Every person who ... 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 ...." 42 U.S.C. § 1983 (1982).
22. Contrary to the Supreme Court's and Ninth Circuit's assumption that E.L. Fraser was
Fraser's father, "E" stands for Elizabeth, Fraser's mother. Recent Developments, Constitutional Law: The First Amendment and Offensive Speech, 10 HARV. J.L. & PUB. POL'y 259, 260 n.5
(1987).
23. The district court held that the school district violated Fraser's 1st and 14th amendment rights by subjecting him to a three-day suspension and by removing his name from the
graduation speaker list. Fraser v. Bethel School Dist. No. 403, 755 F.2d 1356, 1358 (9th Cir.
1985), rev'd, 106 S. Ct. 3159 (1986).
24. Id. at 1357.
25. Id. at 1365. The court of appeals affirmed the district court's declaratory judgment
and attorney's fee award, but vacated the injunction as moot because Fraser had already given
the graduation speech. Id. at 1366. Judge Wright, dissenting, argued that the Ninth Circuit
erred in failing to recognize three factors that make schools unique for first amendment purposes: the physically confining nature of schools, the constitutional significance of a speech by
a minor to a minor audience, and the special function schools perform in society. Id. at 136768 (Wright, J.,
dissenting).
26. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3166 (1986).
208
speech."
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[Vol. 37:203
'27
II.
CONSTITUTIONALLY PROTECTED EXPRESSION
In theory, the first amendment seeks to reflect man's spiritual nature, his feelings and his intellect by promoting a variety of expression. 28 In practice, however, freedom of speech must take other
values into account such as public order, justice, and moral progress.2 9 The Court first attempted to reconcile freedom of expression with other societal objectives in Chaplinky v. New Hampshire."°
In Chaplinsky, the Court unanimously affirmed a conviction for disorderly conduct based on utterances referring to a policeman as "a
God damned racketeer" and "a damned fascist." 31 The Court recognized that certain types of speech are of "such slight social value
as a step to truth" that their abridgement would not violate the first
amendment.3 2 The Court in Chaplinsky established the "fighting
words" doctrine, which allows a conviction for worthless language
uttered in a public place if the abusive words were spoken individu33
ally in a face-to-face situation.
27. Id. at 3164, 3166. Following the Supreme Court's decision, the Ninth Circuit denied
Fraser's motion for an award of partial attorney's fees on the ground that the plaintiff had not
prevailed on any issue. Fraser v. Bethel School Dist. No. 403, 807 F.2d 1507 (9th Cir. 1987).
28. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977) (recognizing freedom
of thought and belief as interest lying at heart of first amendment); Olmstead v. United
States, 277 U.S. 438, 478 (1928) (Brandeis,J., dissenting) (contending that drafters of Constitution recognized significance of man's spiritual nature); Whitney v. California, 274 U.S. 357,
375 (1927) (Brandeis, J., concurring) (stating freedom to think as you will and speak as you
think are indispensable to discovery and spread of political truth). See generally A. MEIKLEJOHN,
POLITICAL FREEDOM 75 (1960) (explaining that first amendment is primarily device for sharing
truth, so no relevant information or ideas should be kept from citizenry); Note, Content Regulation and the Dinensions of Free Expression, 96 HARV. L. REV. 1854, 1873 (1983) (stating that goal
of first amendment is to develop man's spirit and intellect to their fullest).
29. See generally T. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 26
(1963) (maintaining that freedom of expression, as method of reaching variety of goals, must
be reconciled with sometimes conflicting values and objectives sought by good society).
30. 315 U.S. 568, 571-72 (1942).
31. Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942).
32. Id. at 572. The Court distinguished between low and high value speech. The words
Chaplinsky used possessed such low social usefulness ("low value") that the Court decided
full first amendment protection was not warranted. Id.
33. Id. at 571-72. Applying Chaplinshy, the Court subsequently created five roughly defined areas of "low value" expression: (1) Speech that created a clear and present danger of
illegal behavior, particularly physical violence. See Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (restricting first amendment protection of words directed towards inciting imminent
lawless action); (2) Obscenity. See Miller v. California, 413 U.S. 15, 23, 24 (1973) (finding
obscene material unprotected by first amendment but limiting regulation to works which
taken as whole appeal to prurient interest in sex, portray sexual conduct in patently offensive
way, and have no serious literary, artistic, political, or scientific value); (3) Defamation. See
New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (explaining that libel must be
measured by first amendment standards and has no talismanic immunity from constitutional
limitations); (4) False or misleading commercial speech. See Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563-66 (1980) (stating that protection available
for particular commercial speech turns on nature of expression and governmental interest
1987]
SILENCING STUDENT SPEECH
A.
209
Cohen'sJacket
In an effort to avoid suppressing valuable expression that some
may view as offensive, the Court has not expanded the application of
Chaplinsky.3 4 In Cohen v. California,35 for example, the Court protected the right of an individual to wear a jacket bearing the clearly
visible words, "Fuck the Draft," in the corridor of the Los Angeles
County Courthouse. 6 Writing for the majority, Justice Harlan distinguished Cohen's epithet from other "low value" speech by concluding that it was not obscenity because the vulgar allusion to the
Selective Service System would not plausibly conjure up some
"psychic stimulation."3 7 No individual would reasonably have regarded the words on Cohen's jacket as a direct personal insult.38
Justice Harlan noted that preventing an individual from intentionally provoking people in a courthouse to hostile reaction is not a
legitimate exercise of the state's police power.3 9 Moreover, Cohen
had committed no violent action.40
In protecting Cohen's speech, the Court recognized that the
words may have been chosen as much for their emotive as for their
cognitive force. 41 The Court in Cohen conferred a personal value to
speech wholly apart from whatever social value the expression
might have. 42 As Justice Harlan explained, although Cohen's word
choice may have been particularly distasteful, the state's role is not
to "cleanse public debate to the point where it is grammatically
palatable to the most squeamish among us." 48 If the Court authorizes the suppression of certain words, it risks chilling ideas in the
served by its regulation); and (5) Child pornography. See New York v. Ferber, 458 U.S. 747,
764 (1982) (holding that child pornography is not entitled to first amendment protection
provided that prohibited conduct is adequately defined by applicable state law). See generally
Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First
Amendment Adjudication, 70 VA. L. REV. 1219, 1228-29 (1984) (explaining that above described
five categories of low value expression are now generally accepted by all justices when reviewing governmental censorship).
34. See Rutzick, Offensive Language and the Evolution of First Amendment Protection, 9 HARV.
C.R.-C.L. L. REV. 1, 27 (1974) (stating that since Chaplinsky, Court constitutionally protects
every reaction to offensive language except for physical violence).
35. 403 U.S. 15 (1971).
36. Cohen v. California, 403 U.S. 15, 26 (1971).
37. Id. at 19, 20. The expression must be erotic in some significant way to be considered
obscene. Roth v. United States, 354 U.S. 476, 487-90 (1957).
38. Cohen's words were not "fighting words" because they were not delivered face-toface. Cohen, 403 U.S. at 26.
39. Id.
40. Id. at 16-17.
41. Id. at 26.
42. See id. at 25 (conceding that one man's vulgarity is another's lyric).
43. Id.; see W. BERNS, THE FIRST AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY
191 (1976) (stating that Cohen's four-letter word, whether chosen for emotive or cognitive
value, deserves constitutional protection).
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:203
process. 44 The majority warned that such state censorship may
serve as a "convenient guise for banning the expression of unpopu45
lar views."
B.
Tinker's Armband
The Court's interest in protecting "high value" expression is not
limited to the specific words communicated. In Tinker v. Des Moines
Independent Community School District,46 three teenage students wore
black armbands to school to publicize their objections to the Vietnam War. 47 School officials learned of the plan and adopted a policy to suspend any student wearing an armband. 48 The three
high school stuteenagers (two high school students and one junior
49
suspended.
were
and
dent) wore the armbands
Protecting the students' expression, the Court likened armband
wearing to "pure speech," entitling it to greater protection than expressive conduct. 50 The Court held that without evidence of mate44. Cohen v. California, 403 U.S. 15, 26 (1971); see Rutzick, Offensive Language and the
Evolution of First Amendment Protection, 9 HARV. C.R.-C.L. L. REV. 1, 19, 20 (1974) (explaining
that Court's recognition in Cohen of distinction between individual and societal benefits of free
expression created new dimension of protection for speech with significant personal value
even if social value is minimal).
For a discussion on the combative nature of free speech, see Terminiello v. City of Chicago,
337 U.S. 1,4 (1949) (explaining that function of free speech under our system of government
is to invite dispute and that first amendment best serves its high purpose when it induces a
condition of unrest, creates dissatisfaction with prevailing conditions, or even stirs people to
anger); De Jonge v. Oregon, 299 U.S. 353, 365 (1937) (stating that as importance of safeguarding community from incitement to overthrow institutions by force and violence becomes
greater, the need to preserve constitutional rights of free speech, free press, and free assembly becomes more imperative).
45. Cohen, 403 U.S. at 26. Case authority demonstrates judicial willingness to protect a
variety of offensive speech. See, e.g., Hess v. Indiana, 414 U.S. 105, 107-09 (1976) (holding
that language, "[w]e'll take the fucking street later," uttered at anti-war demonstration on
college campus is protected absent evidence that words were intended and likely to produce
imminent disorder); Papish v. Board of Curators, 410 U.S. 667, 670 (1973) (finding that underground school newspaper with headline "Motherfucker Acquitted," referring to member
of New York City organization called "Up Against the Wall Motherfucker," and with political
cartoon of police raping Statue of Liberty was not constitutionally obscene or otherwise unprotected); Brown v. Oklahoma, 408 U.S. 914, 914 (1972) (remanding conviction of student
member of Black Panther Party who used term "motherfucking" twice in reference to police
for violation of statute prohibiting obscene or lascivious utterances); Rosenfeld v. NewJersey,
408 U.S. 901, 901 (1972) (remanding conviction of public school teacher for using word
"motherfucking" on four occasions in speech at public school board meeting).
46. 393 U.S. 503 (1969).
47. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 504 (1969).
The wearing of armbands resulted from a 1965 meeting in Des Moines of a group of parents
who decided to wear black armbands to express support for a truce in Vietnam. Three children of parents attending that meeting decided to wear armbands to school for the same
purpose. Id.
48. Id. The school rule stated that anyone found wearing an armband would be sent
home and suspended from school until he returned without the armband. Id.
49. Id. The plaintiffs initially filed a complaint asking the United States District Court for
an injunction restraining the school officials from enforcing the school district's new rule. Id.
50. Id. at 505-06. Those who communicate ideas by conduct are not afforded the same
1987]
SILENCING STUDENT SPEECH
rial disruption and substantial interference with schoolwork or
school discipline, school officials could not prohibit students from
wearing armbands. 5 1 Declaring the school's suspension an unconstitutional denial of the students' first amendment rights, the Court
emphasized that children need to exercise their first amendment
freedoms. 5 2 In the Court's view, schools are not "enclaves of totalitarianism" where children are "closed-circuit recipients" of stateselected information. 53 Under the Court's standard in Tinker, a student may express his views within the schoolhouse gates as long as
he does so without materially disrupting and substantially interfer54
ing with the educational process.
Tinker initiated a judicial crusade in the lower courts to recognize
kind of freedom as those who communicate ideas by pure speech. Cox v. Louisiana, 379 U.S.
536, 555 (1965).
51. Tinker, 393 U.S. at 518.
52. Id. at 512-13. The Court interpreted the first amendment to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. Id. at 513.
53. Id. at 511. The Court explained that officials must show more than a desire to avoid
the discomfort and unpleasantness of unpopular viewpoints to justify prohibiting expression.
Id. at 509.
54. See id. at 512-13 (stating that a student's first amendment rights operate during
school hours in cafeteria and on playing field as well as in classroom).
The Tinker material disruption and substantial interference standard, like the clear and
present danger test developed in the sedition cases, requires a high probability of serious
disruption before expression may be curtailed. The Tinker standard originated in a Fifth Circuit decision protecting students who wore freedom buttons to school. Burnside v. Byars,
363 F.2d 744, 748-49 (5th Cir. 1966). In Burnside, the court held that because the buttons
evoked only "mild curiosity," such conduct was not a basis for finding material and substantial
disruption. Id. at 748.
Judicial application of the material disruption and substantial interference standard has
been extremely fact specific. In a case decided the same day as Burnside, the Fifth Circuit
found a similar regulation that prohibited wearing freedom buttons permissible. Blackwell v.
Issaquena County Bd. of Educ., 363 F.2d 749, 754 (5th Cir. 1966). The evidence in Blackwell
showed that students had pinned buttons on other students who did not want them, interrupted classes, kept halls congested, and threw buttons into rooms while classes were being
held. Id. at 751-52.
Since Tinker, courts have attempted to flesh out the material disruption and substantial interference standard. See, e.g., Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368, 1375-76
(8th Cir. 1986) (holding that school officials can limit student expression in student newspaper only upon showing of potential tort liability to school district), cert. granted, 107 S. Ct. 926
(1987); Shanley v. Northeast Indep. School Dist., 462 F.2d 960, 974 (5th Cir. 1972) (seeking
demonstrable factors and objective evidence to support forecast of disruption in order to
repress student speech); Quarterman v. Byrd, 453 F.2d 54, 58-59 (4th Cir. 1971) (requiring
substantial evidence reasonably supporting forecast of likely disruption before student expression may be regulated).
The material and substantial disruption standard resembles the clear and present danger
test in its objective of preserving public order. Justice Holmes developed the "clear and present danger" test in 1919 in upholding convictions for violation of the Espionage Act. Schenck
v. United States, 249 U.S. 47, 52 (1919) (stating that issue is whether words created clear and
present danger of substantive evil); see also Brandenburg v. Ohio, 395 U.S. 444, 447, 449
(1969) (proscribing advocacy of use of force only when such advocacy is likely to incite imminent lawless action); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (providing that provocative
and challenging speech is protected unless likely to produce clear and present danger rising
far above public annoyance or unrest); Whitney v. California, 274 U.S. 357, 376-79 (1927)
(requiring demonstration that immediate serious violence was expected or that past conduct
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:203
a variety of forms of expression. Students, using the Constitution
and Tinker, challenged actions of public school authorities concerning movies,5 5 school plays, 5 6 dances,5 7 student body elections, 5 8
demonstrations, 59 discipline, 60 prayer meetings, 6 ' hair length, 6 2 and
school newspapers. 63 The Supreme Court, however, has refused to
take the lead of the lower courts. Despite the commands of Tinker
and Cohen, the Court continues to regard public high school students as less deserving of constitutional rights and protections than
adults. 64 Most recently, in New Jersey v. T.L. 0. ,65 the Court issued a
justified conclusion that advocacy of violence was contemplated in order to support finding of
clear and present danger).
55. See Pratt v. Independent School Dist. No. 831, 670 F.2d 771, 776-79 (8th Cir. 1982)
(holding that school board's suppression of film in order to stifle disagreeable ideological or
religious viewpoints violated students' first amendment rights).
56. See Seyfried v. Walton, 668 F.2d 214, 217 (3d Cir. 1981) (finding no violation of first
amendment in superintendent's decision to cancel high school play because of sexual theme).
57. See Fricke v. Lynch, 491 F. Supp. 381, 387 (D.R.I. 1980) (holding that school board
violated first amendment rights of homosexual student by refusing to allow him to bring male
escort to prom).
58. See Palacios v. Foltz, 441 F.2d 1196, 1198 (10th Cir. 1971) (stating that student does
not have constitutional right to run for co-president of student council).
59. See Karp v. Becken, 477 F.2d 171, 176-77 (9th Cir. 1973) (maintaining that high
school student could not be suspended for carrying sign to protest school's refusal to renew
teacher's contract).
60. See Hall v. Tawney, 621 F.2d 607, 611 (4th Cir. 1980) (finding substantive due process rights are implicated in school disciplinary punishment).
61. See Brandon v. Board of Educ., 635 F.2d 971, 979-80 (2d Cir. 1980) (holding that
school board's refusal to allow prayer sessions before classes did not violate students' right to
free speech), cert. denied, 454 U.S. 1123 (1981).
62. The First, Fourth, Sixth, Seventh, and Eighth Circuits have stated that federal courts
should provide ajudicial forum in hair-length cases. Holsapple v. Woods, 500 F.2d 49, 51-52
(7th Cir.) (per curiam), cert. denied, 419 U.S. 901 (1974); Massie v. Henry, 455 F.2d 779, 783
(4th Cir. 1972); Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir. 1971); Richards v. Thurston,
424 F.2d 1281, 1284 (1st Cir. 1970);Jackson v. Dorrie, 424 F.2d 213, 218-19 (6th Cir.), cert.
denied, 400 U.S. 850 (1970). The Third, Fifth, Ninth, and Tenth Circuits, however, have stated
that federal courts should not provide ajudicial forum in hair-length cases. Zeller v. Donegal
School Dist. Bd. of Educ., 517 F.2d 600, 605-06 (3d Cir. 1975); Hatch v. Goerke, 502 F.2d
1189, 1192 (10th Cir. 1974); Carr v. Schmidt, 460 F.2d 609, 611 (5th Cir.) (en banc), aert.
denied, 409 U.S. 989 (1972); Freeman v. Flake, 448 F.2d 258, 261-62 (10th Cir. 1971); King v.
SaddlebackJr. College Dist., 445 F.2d 932, 940 (9th Cir. 1971).
63. See, e.g., Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368, 1375-76 (8th Cir.
1986) (finding school officials justified in limiting student speech under Tinker only when publication of that speech would result in tort liability for school), cert. granted, 107 S. Ct. 926
(1987); Trachtman v. Anker, 563 F.2d 512, 519-20 (2d Cir. 1977) (subordinating students'
first amendment rights to publish sex questionnaire to school administrator's power), certl.
denied, 435 U.S. 925 (1978); Nitzberg v. Parks, 525 F.2d 378, 384 (4th Cir. 1975) (maintaining
that punishment of student who published improperly restrained material unduly chills free
speech); Scoville v. Board of Educ., 425 F.2d 10, 13-15 (7th Cir.) (en banc) (finding that
expulsion of student journalists for criticizing school policies violative of students' first
amendment rights), cert. denied, 400 U.S. 826 (1970); Gambino v. Fairfax County School Bd.,
429 F. Supp. 731, 735 (E.D. Va.) (concluding that as conduit for student expression, high
school newspaper fell within parameters of first amendment), aff'd, 564 F.2d 157 (4th Cir.
1977); Koppell v. Levine, 347 F. Supp. 456, 459 (E.D.N.Y. 1972) (holding that high school
literary magazine not considered obscene for high school students could not be impounded
by principal without overriding justification).
64. See NewJersey v. T.L.0., 469 U.S. 325, 341-42 (1985) (finding no fourth amendment
1987]
SILENCING STUDENT SPEECH
213
broad pronouncement of students' fourth amendment rights in public school. 66 In T.L.O., the Court held that a school official's search
and seizure of the contents of a student's purse was reasonable and
not violative of the student's fourth amendment rights. 67 Although
the Court recognized the student's legitimate expectation of privacy, it found the state's interest in maintaining a sound educational
environment more compelling. 68 The Court balanced away the
probable cause requirement by declaring that the school setting requires modification of the level of suspicion needed to justify a
search.6 9 Using this rationale, the Court adopted the standard of
reasonableness. 70 In doing so, critics of T.L.O. argue, the Court has
destroyed unnecessarily the vitality of the fourth amendment in
7
public schools. '
C. The FirstAmendment Rights of Children
Prior case law recognized the legitimate concern on the part of
parents and school administrators, acting in loco parentis, to protect
72
children from obscene or offensive speech. In Ginsbergv. New York,
for example, the Supreme Court upheld a state statute prohibiting
the sale of certain material, not considered obscene for adults, to
minors under seventeen. 73 The Court found that it was not an invasion of minors' constitutionally protected freedoms to adjust the
definition of obscenity by assessing the appeal of obscene material
in terms of the sexual interest of minors.7 4 The Court in Ginsberg
recognized parents' right to control their children's access to certain
violation in search and seizure of contents of students' purse without warrant or showing of
probable cause); Ingraham v. Wright, 430 U.S. 651, 664 (1977) (finding cruel and unusual
punishment clause of eighth amendment inapplicable to corporal punishment in public secondary schools). See generally Comment, The Supreme Court and the Decline of Students' Constitutional
Rights: A SelectiveAnalysis, 65 NEB. L. REv. 161, 187 (1986) (contending that Court's authoritarian trend in recent students' rights cases plants seeds of intolerance in nation's schools).
For an argument that traditional first amendment analysis is inappropriate in public school
situations, see generally Diamond, The First Amendment and Public Schools: The Case AgainstJudical Interv'ention, 59 TEx. L. REv. 477, 497 (1981) (asserting that public schools must deny
certain first amendment rights and that proper function of school is not objectively ascertainable phenomenon).
65. 469 U.S. 325 (1985).
66. NewJersey v. T.L.O., 469 U.S. 325, 340-42 (1985).
67. Id.
68. Id. at 343.
69. Id.
70. Id. at 341.
71. See Comment, The Supreme Court and the Decline of Students' ConstitutionalRights: A Selectlive .nalysts, 65 NEB. L. REV. 161, 180 (1986) (maintaining that T.LO. represents convergence
of decline in protection of students' rights and continuing erosion of fourth amendment protection against unreasonable searches and seizures).
72. 390 U.S. 629 (1968).
73. Ginsberg v. New York, 390 U.S. 629, 638 (1968).
74. Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:208
types of protected speech by stating that the New York statute did
not bar parents from purchasing the material for their children. 75
The Supreme Court acknowledged childrens' need for parental
direction in FCC v. Pacifica Foundation.7 6 This case was initiated by a
father who heard George Carlin's satiric "Filthy Words" monologue
on the car radio one afternoon while driving with his young son. 77
The Court held that the Federal Communications Commission
could restrict the broadcast of vulgar language in order to reinforce
and support parents' authority in the home, which could be undermined by the radio's unique accessibility to children. 78 The Court
considered that the children's easy access to broadcast material,
coupled with the concerns recognized in Ginsberg for the well-being
of youth, justified the special treatment of indecent broadcasting.7 9
The objective of granting constitutional rights to students, as the
foregoing cases illustrate, is aimed more at safeguarding the liberties of future adults than the personal autonomy rights of children. 80
Arguably, this state interest in its future adult citizens is advanced
further by cases affirming students' free speech rights rather than by
81
cases negating those rights.
75. Id. at 639.
76. 438 U.S. 726 (1978).
77. FCC v. Pacifica Found., 438 U.S. 726, 729-30 (1978). For the text of Carlin's monologue, see id. at 751-55.
78. Id. at 748-49.
79. Id. at 750.
80. See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 511 (1969)
(stating that students may not be confined to officially approved sentiments absent constitutionally valid reason to regulate expression); Keyishian v. Board of Regents, 385 U.S. 589,
603 (1967) (finding classroom to be "marketplace of ideas" and training ground for future
democratic leadership); Prince v. Massachusetts, 321 U.S. 158, 168 (1944) (concluding that
democratic society rests on healthy well-rounded growth of young people into full maturity as
citizens); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (finding that Board of
Education's function requires strict protection of constitutional freedom to avoid strangling
free thought and sending hypocritical signals to youth); see also M. KAPLAN, DissEN'r AND THE
STATE IN PEACE AND WAR 21 (1970) (finding school second only to the home in its importance
for political socialization of youth).
81. See Garvey, Children and the FirstAmendment, 57 TEX. L. REv. 321, 336-37 (1979) (outlining variety of important roles expression plays in development and definition of individual
self-autonomy by permitting child to experience pleasure of self-expression, by offering occasion for practice of skills in rational discourse, and by teaching how speech can effectuate
good or bad results).
The Court reflected this interest in safeguarding the rights of future adults in holding a
compulsory flag salute in public school unconstitutional. West Va. Bd. of Educ. v. Barnette,
319 U.S. 624, 637 (1943). As Justice Jackson explained, educating youth for citizenship requires scrupulous protection of the individual's constitutional freedoms to avoid strangling
freedom of thought. Id. Similarly, the Seventh Circuit recognized the need to adequately
equip students for the future task of self-government. Scoville v. Board of Educ., 425 F.2d 10,
14 (7th Cir. 1970). By enjoining interference with a student publication critical of school
policies, the court found that high school juniors possess unique perspectives on school issues
and matters of social policy. Id. at 14 & n.8. The court in Scoville suggested that school criti-
1987]
SILENCING STUDENT SPEECH
III.
215
BETHEL ANALYZED
In Bethel, the Supreme Court held that the school district acted
within its authority in sanctioning Fraser for his "offensively lewd
and indecent speech." 8 2 Justice Burger stated that American public
schools must inculcate habits and manners of civility to prepare students for life in a democracy. 83 In order to do so, schools, as instruwhat type
ments of the State, must have the authority to determine
84
of conduct interferes with the educational process.
In overruling the lower courts, the Supreme Court criticized the
Ninth Circuit for misapplying the Tinker standard of material disruption and substantial interference. 85 The Ninth Circuit had analogized Tinker to Bethel and concluded that the school district failed to
demonstrate that Fraser's sexual innuendo met the Tinker standard. 8 6 The Supreme Court reasoned that Tinker applied only to
the passive expression of a political viewpoint, not sexually suggestive speech. 8 7 Consequently, the Court found that the first amendment did not prevent school officials from determining that
permitting an offensive speech would undermine the school's basic
88
educational mission.
The Court in Bethel maintained that the school district was correct
in finding Fraser's speech offensive.8 9 The Court found Fraser's
words insulting to students, teachers, and "any mature person." 90
Justice Burger singled out teenage female students as acutely injured by Fraser's glorification of male sexuality. 9 1 Likewise, he
noted that the student audience as a whole may have been seriously
damaged by Fraser's speech because many were on the "threshold
92
of awareness of human sexuality."
In Bethel, the Court relied on first amendment jurisprudence to
support the contention that students' rights are not coextensive with
the rights of adults. 93 The Court cited FCC v. Pacifica Foundation to
cism may aid the child's development. See id. (requiring that school rules be related to state
interest in production of well-trained intellects with constructive critical stances).
82. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3166 (1986).
83. Id. at 3165.
84. Id.
85. Id. at 3163.
86. Fraser v. Bethel School Dist. No. 403,755 F.2d 1356, 1359 (9th Cir. 1985), revzd, 106
S. Ct. 3159 (1986).
87. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3163 (1986).
88. Id. at 3166.
89. Id. at 3165.
90. Id.
91. Id.
92. Id.
93. See Board of Educ. v. Pico, 457 U.S. 853, 871-72 (1982) (plurality opinion) (holding
that school board has authority to remove objectionable books from school library as long as
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:203
exemplify judicial interest in protecting minors from exposure to
vulgar and offensive speech. 9 4 The Court implied that Fraser's
speech, like George Carlin's "Filthy Words" monologue, should be
considered "low value" speech warranting minimal first amendment
protection. 95
In an effort to limit the scope of the judgment, Justice Brennan
concurred, finding that under certain circumstances it may be
proper to reprimand a high school student for giving a disruptive
speech in school. 9 6 Under different circumstances, however, when
the school's legitimate interest in teaching and maintaining order
are less weighty, Justice Brennan indicated that speeches like Fraser's may be protected. 9 7 Justice Marshall, in a brief dissent, found
no evidence that Fraser's speech was disruptive. 98 Justice Stevens,
also dissenting, objected to the Court's rejection of Fraser's due
process argument. 9 9 According to Justice Stevens, the evidence in
the record, as interpreted by the district court and the court of ap-
peals, clarified that Fraser's sexual innuendo was not "conduct"
prohibited by the disciplinary rule. 0 0 Justice Stevens also noted
that Fraser was not warned by any of the three teachers he contacted
prior to the school assembly that his speech would violate a school
rule, and that the impropriety of the speech may not have been obvi-
ous to a seventeen-year-old addressing his peers. 10
IV. BETHEL CRITICIZED
It is ironic that the forum for Matthew Fraser's "lewd" and "indecent" speech was a school-sponsored educational program in selfgovernment. 0 2 Historically, the rationale for granting students free
expression rights has been to train them for citizenship in a democmotive is not to suppress ideas); FCC v. Pacifica Found., 438 U.S. 726, 732 (1978) (reaffirming
power of Federal Communication Commission to regulate indecent radio broadcasts at time
when children could be listening); Ginsberg v. New York, 390 U.S. 629, 638 (1968) (upholding state statute banning sale of sexually oriented material to minors, even though material
received first amendment protection for adults).
94. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3165-66 (1986); see also supra
notes 76-79 and accompanying text (discussing Court's decision in FCC v. PacificaFoundation).
95. Id at 3166.
96. Id. at 3167 (Brennan, J., concurring).
97. Id. at 3168 (Brennan,J., concurring).
98. Id. (Marshall, J., dissenting).
99. Id. at 3169 (Stevens, J., dissenting). The Court rejected Fraser's due process claim
that he could not have known his words would subject him to disciplinary action on the premise that schools need flexibility to discipline unanticipated conduct and that Fraser's three-day
suspension did not warrant full due process protection. Id. at 3166.
100. Id. at 3170-71 (Stevens, J., dissenting).
101. Id. at 3171 (StevensJ., dissenting).
102. Id. at 3160.
1987]
SILENCING STUDENT SPEECH
racy.103 As the Supreme Court declared in Tinker, students in school
as well as out of school are "persons" under the Constitution. 10 4
This commitment to the preservation of future adult citizens' constitutional freedoms led the Court in Tinker to unequivocally state that
neither students nor teachers shed their constitutional rights to
freedom of speech at the schoolhouse gate. 105
A.
Tinker Applied
The Court in Bethel refused to apply the standard it had established in Tinker reasoning that Tinker applied only to political
speech.106 Even though sexually suggestive speech delivered as part
of the school's electoral process is arguably political, the Court
overlooked Tinker's relevance to a detailed analysis of students' right
to first amendment protection. 0 7 In Tinker, the Court found the use
of armbands non-disruptive, and clearly stated that an "undifferentiated fear of disturbance" is not enough to overcome first amendment protection.' 08 The first amendment requires society to take
the risk that controversial language or ideas that deviate from the
views of some may be spoken in school and may provoke an argument or cause a disturbance.' 0 9 The Court in Tinker reasoned that
students are possessed of fundamental constitutional rights that the
State must respect. 110 Therefore, under Tinker, without a specific
showing of a constitutionally valid reason to regulate speech, students are entitled to full first amendment protection."'
Even if the Court in Bethel had applied the Tinker standard, the
103. See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 511 (1969)
(acknowledging that students are persons under Constitution, not "closed-circuit" recipients
of state-selected information); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)
(maintaining that Board of Education has highly delicate function of educating youth for citizenship and must scrupulously preserve constitutional freedoms of individuals); A.
MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 26 (1948) (explaining how
principle of free speech springs from necessities of self-government). See generally Van Geel,
The Searchfor ConstitutionalLimits on Governmental Authority to Inculcate Youth, 62 TEX. L. REV. 197
(1983) (discussing importance of student's interest in freedom of belief and relative unimportance of government's interest in inculcating values and beliefs).
104. Tinker, 393 U.S. at 511.
105. Id. at 506.
106. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3163 (1986).
107. In Tinker, Justice Fortas stressed that school officials do not possess absolute authority over students and that students may not be confined to expression of only officially approved sentiments. Tinker, 393 U.S. at 51 1; see Garvey, Children and the FirstAmendment, 57 TEX.
L. REV. 321, 338 (1979) (stating that Tinker is natural place to begin consideration of Supreme
Court's attitude toward free speech rights because Tinker develops several ideas about role
expression plays in children's development).
108. Tinker, 393 U.S. at 508.
109. Id.
110. Id.at 511.
111. Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:203
facts of the case do not demonstrate the requisite material disruption and substantial interference of the educational process to justify curtailment of students' expression. 112 Reaction to Fraser's
speech was limited to bewilderment, hoots, yells, and three students
simulating sexual movements. 1 3 As the Ninth Circuit concluded, a
noisy response to a speech and sexually suggestive actions by three
students in an audience of 600 fails to rise to the level of interference justifying a first amendment limitation. 14 None of the teachers asked to provide written comments on Fraser's speech suggested
that it interfered with or disrupted school activities. 115 Likewise, the
speech was not disruptive simply because a home economics teacher
had to spend ten minutes of class time discussing it.116 Any event
17
can provide the spark of education.
B.
Tinker Donning Cohen's Jacket
After reprinting Fraser's speech in its entirety for the first time in
118
the case, Justice Brennan explained the scope of his concurrence.
While disagreeing entirely with Justice Berger's classification of Fraser's remarks as "obscene" and "offensively lewd," ' 19 Justice Brennan justified the school's action under these specific factual
120
circumstances where he saw the educational mission as weighty.
Under different circumstances whichJustice Brennan left undefined,
Fraser's speech would be protected.121 The Court's statements, according to Justice Brennan, could not refer to the government's authority generally to regulate language used in public debate outside
the school environment.' 22 Undoubtedly, if Fraser's speech had
been made outside of the schoolhouse gates it would have been
112. Despite Justice Burger's findings that Fraser's speech was acutely insulting to female
students and potentially damaging to 14-year-olds in the audience, no evidence in the record
demonstrates that any students were insulted or injured by Fraser's remarks. Bethel School
Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3165 (1986); see supra note 16 and accompanying text
(noting that little disruption occurred after Fraser's speech).
113. Id. at 3165.
114. Fraser v. Bethel School Dist. No. 403, 755 F.2d 1356, 1360 (9th Cir. 1985), rev'd, 106
S. Ct. 3159 (1986).
115. Id. at 1360-61.
116. Id. at 1360.
117. See Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (defining classroom as
"marketplace of ideas" and maintaining that nation's future depends upon leadership trained
through broad exposure to multitude of tongues); Brown v. Board of Educ., 347 U.S. 483,
493 (1954) (finding that education is principal instrument in awakening child to cultural
values).
118. Bethel, 106 S. Ct. at 3167-68 (Brennan, J., concurring).
119. Id. at 3167.
120. Id. at 3168.
121. Id.
122. Id. at 3167 n.1.
1987]
SILENCING STUDENT SPEECH
219
protected. 123
Although Justice Brennan claims that the Court has reaffirmed
Tinker's deference to student's free expression rights, his concurrence bespeaks a dismembering of Tinker. 124 This case, he contends, involves neither school officials' attempt to ban inappropriate
speech or speech they disagree with.' 25 Rather, he views the
Court's holding as limited to the authority of school officials to restrict a high school student's use of "disruptive" language. 126 Justice Brennan, however, cites no examples of disruption. 127 As
Justice Marshall stated in his dissenting opinion, where speech is
involved, a school official's assertion that certain speech interfered
with education cannot be accepted without question. 128 Moreover,
Fraser's unprotected sexual innuendo seems terribly tame in comparison to the distasteful epithet protected in the Los Angeles
County Courthouse corridor. 129 Fraser's speech, like Cohen's
jacket, may have been chosen as much for its emotive as its cognitive
force. 30° This seventeen-year-old may just have wanted to tell his
fellow classmates that he and the student he was nominating were
willing to say something his fellow students would find witty and
amusing but that school officials might find offensive.' 3 '
Cohen and Tinker stress the need for a legitimate state interest
before speech can be abridged or regulated.' 3 2 In Cohen, the Court
could find no proof that citizens stood ready to strike out physically
at such an assault on their sensibilities as the sight of Cohen's
jacket.' 33 In Tinker, the Court could find no facts that might reasonably have led to a forecast of material disruption of or substantial
interference with the school's academic environment.13 4 Mere fear
123. Id. at 3167.
124. Id. at 3167-68.
125. Id. at 3168.
126. Id.
127. Id. at 3167-68.
128. Id. at 3169 (Marshall, J., dissenting).
129. See id. at 3167 (Brennan, J., concurring) (finding it difficult to believe that Fraser's
speech was same speech Court described as "obscene," "vulgar," "lewd," and "offensively
lewd").
130. See Cohen v. California, 403 U.S. 15, 26 (1971) (explaining that much linguistic expression serves dual communicative function of conveying not only ideas capable of relatively
precise meaning but otherwise inexpressible emotions as well).
131. See Bethel, 106 S. Ct. at 3169 (Stevens, J., dissenting) (maintaining that Fraser was
probably in better position than Court to determine whether audience of contemporaries
would be offended by his sexual metaphor).
132. Cohen v. California, 403 U.S. 15, 23 (1971); Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 511 (1969).
133. Cohen, 403 U.S. at 23.
134. Tinker, 393 U.S. at 514. It may be argued that the School Board, not the Court, is in
a much better position to judge local sensibilities and that its definition of what constitutes
potential disruption would differ from the Court's assessment. Bethel, 106 S. Ct. at 3165.
220
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 37:203
or apprehension of the occurrence of such events was not sufficient
to justify limiting students' first amendment rights.13 5
C.
Protecting the Children
From a vantage point of 3,000 miles and at least two generations,
the Supreme Court believed it was in a better position to judge the
13 6
offensiveness of Matthew Fraser's speech than was Fraser himself.
The classroom, the Court declared, is no place for adolescents to
hear sex talk from a fellow student. 13 7 Just as the Court in Pacifica
recognized an interest in protecting minors from exposure to vulgar
and offensive language on the air waves, the Court in Bethel acknowledged the role school authorities play as the guardians of students' morality.' 3 8 Compared with prohibiting George Carlin's
"indecent" monologue in Pacifica,13 9 the Court in Bethel attempts to
proscribe a much broader range of expression. By finding a high
school assembly the wrong place for a sexually suggestive speech,
the majority transcends the confines of the school's role as a disciplinarian and enters the more expansive terrain of a student's right
140
to free expression in the school environment.
The Court's sense of a high school student's level of sexual so1 41
phistication, however, is out of step with contemporary reality.
The media constantly bombards today's youth with sexual stim135. It is interesting to note that the majority in Fraser referred to Fraser as a "confused
boy," while the dissent described him as an "outstanding young man." Bethel, 106 S. Ct. at
3165; id. at 3169 (Stevens, J., dissenting).
136. Id. at 3169 (Stevens, J, dissenting).
137. Id. at 3166.
138. See id. at 3165 (explaining that schools teach shared values of social order by
example).
139. See FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (finding that uniquely pervasive
presence of broadcast media justified regulation of programs containing indecent language).
140. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3166 (1986). See Kuhlmeier v.
Hazelwood School Dist., 795 F.2d 1368, 1372-73 (8th Cir. 1986), cert. granted, 107 S. Ct. 926
(1987) (considering school authority's censoring of articles in student-run newspaper).
141. See Bethel, 106 S. Ct. at 3168 n.2 (Brennan, J., concurring) (considering Fraser's
speech no more obscene or sexually explicit than programs currently broadcast on prime time
television).
In the fall of 1986, Surgeon General Koop reported that youth are not receiving information vital for their future health because of society's reticence in dealing with the subjects of
sex, sexual practices, and homosexuality. Dr. Koop's report specifically addressed the problem of informing children about Acquired Immune Deficiency Syndrome (AIDS). Sex education, according to the Surgeon General, must begin "at the lowest grade possible" and should
be "reinforced in the home." As a preventative measure, he suggested supplying condoms in
public high schools. According to Dr. Koop, with adequate sex education, 14,000 lives may
be saved from AIDS by 1991. Wash. Post, Oct. 28, 1986, at A15, col. 1. The realization that
teenagers are sexually sophisticated and run health risks because of society's insensitivity to
these developments sharply contrasts with the image the Court in Bethel depicts of the disquieted student listening to Fraser's off-color remarks.
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SILENCING STUDENT SPEECH
221
uli.142 Moreover, research in the field of adolescent psychology sug-
gests that high school students are generally independent and
capable of critical inquiry.' 43 Adolescence, studies indicate, is a
time when self-identity is established. 44 With this increased independence and self-identification, students can distinguish tolerance
45
and respect from control and suppression.
Bethel school officials and the Supreme Court missed an opportune moment, at a student program on self-government, to demonstrate our democracy in action. As Justice Burger stated in Bethel,
schools must teach by example the shared values of a civilized social
order.' 4 6 If school officials had responded to Fraser's remarks with
more speech, it would have taught students first amendment principles and, at the same time, persuaded them that certain speech may
be inappropriate. School officials should have accepted the challenge of inculcating societal values by presenting their opposing
views to the students. 147
V.
IMPACT OF BETHEL
Bethel adds a murky category to the kinds of student speech that
may be constitutionally prohibited. 48 By ruling that lewd and inde142. See Trachtman v. Anker, 563 F.2d 512, 522 (2d Cir. 1977) (noting testimony of educational psychology professor on benign effects of sexual questionnaire on students due to
their high level of sexual sophistication).
143. See Piaget, The Intellectual Development of the Adolescent, in ADOLESCENCE 23 (1969) (finding that adolescents' sophisticated cognitive capacity allows students to form own ideas, to
debate, to disagree with peers, and to act on own beliefs as autonomous individuals); Note,
Pulbhc School Sex Education: Does It Violate ParentalRights?, 12 N.Y.U. REv. L. & Soc. CHANGE
591, 607 (1984) (stating that widespread teenage sexual activity, in defiance of many parents'
desires, indicates youth are already making their own choices on sexual matters).
144. See generally E. ERICKSON, IDENTrrY: YotrrH AND CRISIS 163-65 (1968) (describing adolescence as final stage of identity formation and period of great confusion); Garvey, Children
and the First Amendment, 57 TEx. L. REv. 321, 357 (1979) (outlining variety of important roles
free speech plays in development and definition of child's self-autonomy).
145. See Erznoznik v. City ofJacksonville, 422 U.S. 205, 213 (1975) (holding that speech
that is neither obscene to youths nor subject to other legitimate restraint cannot be suppressed solely to protect young from ideas or images legislative body deems unsuitable); see
also Note, The ConstitutionalDimensions of Student-InitiatedReligious Activity in Public High Schools,
92 YALE LJ. 499, 509 (1983) (maintaining that fears of adolescent impressionability and immaturity do not justify limitations on high school students' religious expression and activity).
146. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3164-65 (1986).
147. In his inaugural address as president of Yale University, Benno C. Schmidt, Jr. reflected on the value of free expression in the educational environment:
We need to confront expression not because it gives us information, permits us to
participate in decision-making-although those are useful-but because we need to
develop our own capacities for freedom. To stifle expression because it is obnoxious, erroneous, embarrassing, not instrumental to some political or ideological end
is-quite apart from the grotesque invasion of the rights of others-a disasterous
reflection on ourselves.
N.Y. Times, Sept. 21, 1986, at A40, col. 1.
148. See Martin v. Parrish, 805 F.2d 583, 585 (5th Cir. 1986) (applying Bethel and finding
222
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:203
cent student speech will receive no first amendment protection even
without a distinct showing of material disruption and substantial interference, 14 9 the Supreme Court established an elusive standard of
impermissible student speech. 150 The Court's decision, as Justice
into
Fortas warned against in Tinker, threatens to transform students
"closed-circuit" recipients of state-selected communication.' 5'
In the future, hoots and yells by students to a rendition of Henry
IV may prompt censorship if the reaction is deemed to materially
disrupt or substantially interfere with the educational process. A
student who comprehends the brilliance of Melville's symbolism
may now be prohibited from delivering a speech to his classmates
on the sexual nuances of Moby Dick for fear of damaging the student
audience's sexual development. 5 2 Bethel has realized Cohen's worst
fear by suggesting that debate in a public high school must be
' 153
cleansed "to suit the most squeemish among us.
Although the Court implies that Fraser's words disrupted schoolwork and discipline, the majority in Bethel never explicitly employs
the Tinker standard of material disruption and substantial interference.1- 4 The Court's objective in developing the Tinker test was to
prevent disorder on the schoolgrounds and substantial interference
with the educational process. 15 5 In Bethel, the Court neglects to directly address the disruption issue, focusing instead on the nature of
Fraser's language.' 56 It is insufficient to say that Fraser's words
should be suppressed because of their offensive character. 15 7 Even
that college teacher has no first amendment right to use "hell," "damn," and "bullshit," in
classroom).
149. Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159, 3165 (1986).
150. The Ninth Circuit expressed the fear that using the subjective standard of "indecency" to control the speech of high school students would increase the risk of cementing
white, middle-class standards for determining what is acceptable speech or behavior in public
schools. Fraser v. Bethel School Dist. No. 403, 755 F.2d 1356, 1363 (9th Cir. 1985), rev'd, 106
S. Ct. 3159 (1986).
151. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 511 (1969).
President Reagan, Attorney General Meese, and Secretary of Education Bennett have made
repeated pleas to emphasize ethics, morality, and values in the nation's schools. Nicholson,
Rapp & Carrington, Campus Safety: A Legal Imperative, 30 W. EDUC. L. REP. 981, 981 (1986).
152. Furthermore, the Bethel decision may jeopardize the first amendment freedoms enjoyed by student newspapers. See Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368, 137273 (8th Cir. 1986), cert. granted, 107 S. Ct. 926 (1987). In Kuhlmeier, the Eighth Circuit held
that a student-run newspaper was a public forum for first amendment analysis. The court
found that the school authorities were not justified in censoring articles about teenage pregnancy and divorce out of fear that the school could be held liable for invasion of privacy. Id.
153. Cohen v. California, 403 U.S. 15, 25 (1971).
154. Bethel School Dist. No. 403 v. Fraser, 106 S.Ct. 3159, 3165 (1986).
155. See supra note 54 and accompanying text.
156. Bethel, 106 S. Ct. at 3165.
157. See Cohen v. California, 403 U.S. 15, 25 (1971) (noting that one man's vulgarity is
another's lyric); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (maintaining that
first amendment does not tolerate laws that cast pall of orthodoxy over classroom); Shelton v.
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SILENCING STUDENT SPEECH
223
if the Court gave the school administration wide latitude in determining what forms of conduct are inconsistent with the school's educational objective, the Court in applying Tinker, needed to find that
Fraser's speech resulted in a material disruption and substantial interference to justify suppression. 158 Without clear evidence of disruption, students' free expression rights in school must not be
abridged.
CONCLUSION
In Bethel School District No. 403 v. Fraser, the Supreme Court narrowed the first amendment protection afforded public high school
students. In proscribing Matthew Fraser's "lewd" and "indecent"
speech in a high school assembly, the Court focused on the character of the language used instead of the speech's effect on the student
audience. In doing so, the Court employed an elusive and inappropriate standard that does not account for the sexual sophistication
of today's high school students. The Court in Bethel, absent clear
evidence of material disruption or substantial interference, failed to
demonstrate a compelling state interest to justify silencing students'
speech. By stressing the context of the school environment over the
content of the actual words uttered, the Court severely limits students' ability to communicate freely and sends an ominous message
to our nation's youth.
Tucker, 364 U.S. 479, 487 (1960) (stating that vigilant protection of constitutional freedoms
is nowhere more vital than in American schools).
158. See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 518 (1969)
(holding that school cannot prohibit student expression without evidence of material disruption and substantial interference with schoolwork or school discipline).