BETHEL SCHOOL DISTRICT NO. 403 v. FRASER
At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days.
Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?
Legal provision: Amendment 1: Speech, Press, and Assembly
No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."
ORAL ARGUMENT OF WILLIAM A. COATS, ESQ. ON BEHALF OF PETITIONERS
Chief Justice Burger: Mr. Coats, you may proceed whenever you're ready.
Mr. Coats: Mr. Chief Justice and may it please the Court:
The issue is this case is whether a public school district may regulate indecent speech in a public school setting that does not amount to obscene speech under this Court's Miller versus California standard.
The facts in this case are that on April 26th, 1983, Matt Fraser, a 17 year old high school senior, gave a speech to the associated student body.
The speech was to introduce his candidate for the vice president's position of the associated student body.
He gave a crude and vulgar speech.
The speech is set forth in full in the briefs and there's no purpose to repeat it here.
It is important to note that Mr. Fraser did obtain significant reaction to his speech, that some of the students hooted and hollered, some of the students looked bewildered, some looked embarrassed.
Some students even acted out certain physical acts symbolizing various sexual acts.
After the speech, the school administration investigated the incident and provided Mr. Fraser with his due process rights and suspended him for three days and struck him from the list of those candidates who would be considered to be a graduation speaker.
Mr. Fraser appealed to the district court.
The district court, as affirmed by the Ninth Circuit, has ruled that public school districts can only regulate student speech if it is obscene under the Miller versus California standard, or the one exception they seemingly recognized is if the speech caused a physical disruption or there was a reasonable prediction of a physical disruption.
Finally, the district court, as affirmed by the Ninth Circuit, struck down the district's disruptive conduct rule, holding it was overbroad and vague.
It is well decided and we agree that students do not shed their constitutional rights at the schoolhouse door.
However, it is equally well decided that those constitutional rights will be administered in a way that is sensitive to the speech environment.
We are here because the Ninth Circuit we believe has misconstrued the extent of the rights a student has under the First Amendment in the public school setting.
They failed to recognize the special relationship between students and their teacher; and finally, they failed to recognize the secondary effects such conduct has in the public school setting.
In beginning our analysis of the First Amendment, it is useful to compare this case with this Court's decision in Tinker versus Des Moines School District.
In Tinker, the facts were that students wore black arm bands into the public schools in protest of the Vietnam War.
There was nothing intrinsically harmful about the black arm bands.
What the school officials were concerned about was that the black arm bands stood for protest against this Government's position in Vietnam.
Tinker was a viewpoint discrimination case, where the school officials determined that that viewpoint on an important student policy issue should not be interjected in the school system.
Contrasting that case with this fact pattern, it is noteworthy that Mr. Fraser at testimony was asked,
"What was the purpose of your speech? "
He responded quite candidly:
"I gave the speech to humor my audience, in the hopes they would vote for my candidate. "
There's no overriding public policy.
Unidentified Justice: Did his candidate win?
Mr. Coats: His candidate did win.
Unidentified Justice: How many students are there involved here?
Mr. Coats: Approximately 600, Justice Marshall, in this school setting.
Unidentified Justice: What was the grade or age range of the students?
Mr. Coats: It's a school that has sophomores through seniors, so the youngest would be 14, the oldest would be 18, and they would range in there according to their grades.
Mr. Fraser... you will note that the district did not take cavalierly his claims that he was being discriminated against or that somehow his viewpoint was being suppressed.
If you review the record in this case, you'll find that Mr. Fraser appealed to the district's hearing officer from the decision of his building principal, and I think if you read that decision, which is part of the joint appendix, that one of the conclusions that was not overturned by the district court was that there was no viewpoint discrimination here, that the district's sole concern was to limit vulgarity and indecent language in the school setting.
This Court has been very clear and has often repeated that it does not want to get involved in the daily operations of the school system, that it only wants to get involved when core constitutional values are involved and sharply implicated.
This Court has also indicated that the regulation of vulgarity and indecent speech is on the periphery of the First Amendment.
We submit to this Court that when you review this case one of the issues is where does the federal court system relate itself to the public schools.
And we would suggest to you, with the rights herein involved and the speech here involved, absent viewpoint suppression, that there should be minimal court review and that all a school district should be required to do is to justify its actions with a reasonable educational purpose.
Unidentified Justice: Mr. Coats, may I ask you a question?
This is an extracurricular assembly?
It's not part of the regular... the students were not required to attend, is that right?
Mr. Coats: Well, I want to be very clear on what the context is, because I think that's important.
It was, students had the option of either going to the assembly or going to a study hall.
Now, the ASB, however, in the State of Washington is an activity that is statutorily recognized and required.
And those statutes, which are RCW-28A.58.115 through 120, I think you'll find that they're somewhat uniquely specific in this area compared to the other states that I have seen.
And they make very clear that this activity is under the direction and control of the public school setting.
So this is no more an elective activity that, for example, when a student elects to take drama rather than going to a study hall.
This is a part of the educational program of this particular school district, as it is in other school districts in of Washington.
Unidentified Justice: In your view, would it be permissible, given that setting, for the school board to prohibit the discussion of any religious topics during any campaign speech or any prayer activities?
Let's all say a prayer for candidate X?
Mr. Coats: Clearly this is not the case of Bender versus Williamsport.
Unidentified Justice: Well, that's really my question.
Mr. Coats: And I think it's important to note that.
Bender involved independent student activities.
This activity is supported by public funds.
It's under the direction and control and supervision of the school authorities.
The school officials lead the activity.
We assign advisors to it.
We subsidize it with public funds.
Unidentified Justice: I understand.
What is your answer to my question?
Mr. Coats: Well, the answer is it's not the same case at all.
Unidentified Justice: Well, what is your answer to my question, whether in your view the school board could prohibit during this particular kind of meeting any discussion of religious topics or any prayer activities in support of a candidate?
Mr. Coats: The answer to your question is yes.
Unidentified Justice: You think they could?
Mr. Coats: I would think they would be compelled to.
This is something that occurs during the student day, when students are required to either be there or in a study hall, and I think it would clearly further that religious activity under the establishment clause.
Unidentified Justice: Mr Coats, would it make any difference in your view if the school had tried to discipline the student for activities occurring at lunchtime or on the school premises after school?
Mr. Coats: I think in the school setting there could be enclaves of privacy, and I think it is important that this case comes up under the disruptive conduct rule of the district, and that one of the things that the district has found in its disruptive conduct rule is that obscene and profane speech is inherently harmful in a school setting.
Now, we would say that if somebody is, for example, swearing around others in a school setting, that would be a concern to us and we could discipline the student for that.
They're under the control of the school and we have a--
Unidentified Justice: Do you think that the school could, for instance, prohibit the use of so-called four letter words at any and all times the students are on school grounds, before, after, during?
Mr. Coats: --As long as it was a school activity.
There are certain private activities that involve students that rent school space.
But as long as it is a school activity, my answer would be yes.
I think the school and the board, through its rulemaking authority, have determined that that's inherently harmful to the school climate.
As long as there is a school activity, my answer to your question would be yes.
Unidentified Justice: Well, is lunchtime a school activity, when the students break for lunch?
Mr. Coats: They're under the control, and I think that the school has a definite educational interest in maintaining an environment around the school premises free from vulgarities.
Students essentially are required to be there.
It's a captive audience of school children.
Unidentified Justice: Do you think the school could implement its discipline in this case had there been no school regulation at all on the subject?
Mr. Coats: Clearly, I think procedural due process requires us to have regulations in effect.
And actually, the Washington Administrative Code requires that and, it is my understanding, your decisions in Goss versus Lopez.
So yes, we have to have pre-existing rules.
In this case, we did have a rule and the student was charged under that rule.
Unidentified Justice: Do we have to decide in this case whether the rule was sufficiently specific to give notice to Mr. Fraser of what was prohibited?
Mr. Coats: The Ninth Circuit has struck down the rule, claiming it was overbroad and vague.
They overbreadth argument depends on their determination that our discipline and our disciplining a student for use of obscene and profane language is in excess of our authority.
The vagueness argument is a due process argument that says the rule is excessively vague, and that is an issue that is before the Court.
I do think it is important in looking at the educational interests to keep in mind that there are really twofold educational interests.
One of those interests relates more to the educational nature of this particular activity, that one of the requirements, and something this Court has oft recognized, is that schools teach societal values.
Indeed, there's a statute in the State of Washington that expressly makes it a duty of the school district to teach morality, self-respect for others, and civility.
The purpose of this ASB activity is multifold, but certainly one of them is to teach these students basic societal values.
Another object of this activity, particularly this assembly, is to teach students the art of public discourse.
Now, in this education activity there is a special relationship between the students and their instructors.
Indeed, the school officials feel they would have been remiss if they had not corrected Mr. Fraser.
His speech was inappropriate.
It was a bad speech.
They as educators had a duty to correct it.
But they not only had a duty to Mr. Fraser, but they also had a duty to the other students who were present.
I think when you look at the fact-pattern here, you have a senior student, a student who had received honors, who was a gifted orator, and he gives a speech such as that contained in the record.
The impression that other students get at that assembly is that that speech is appropriate in that particular context.
The speech district--
Unidentified Justice: As a matter of fact, wasn't that speech given to a teacher the day before?
Mr. Coats: --The record on that, it was given, he claims, to three teachers.
Two teachers testified.
Approximately ten minutes in advance of the assembly, Mr. Fraser went in, and the teacher was the teacher that had the responsibility for the newspaper.
Other students were present, and that teacher told Mr. Fraser, she said, Matt... and this is her testimony...
"That speech is inappropriate, don't give it. "
He then went to another teacher, Mr. DeHart.
Mr. DeHart told him, and his testimony will show:
"Matt, that speech is inappropriate, don't give it. "
Mr. DeHart also testified that it was his recollection that he intimated there would be severe consequences if he did.
That is the record of--
Unidentified Justice: He wasn't told by the principal?
Mr. Coats: --Well, the principal didn't know he was going to give a speech.
The two teachers who reviewed it told him it was inappropriate and not to give it.
Unidentified Justice: Well, I know that, but did the teachers have authority to stop him from making the speech?
Mr. Coats: I think the teachers exercised--
Unidentified Justice: I'm asking you, did they or did they not have authority to stop him from making the speech?
Mr. Coats: --They would have authority, for example, to demand that he go to the office.
But I would submit to you that that's really not how discipline works and is not a realistic view, that if a teacher in a school setting tells the student, that's inappropriate, don't do it, and then the student doesn't respond, then it becomes appropriate for disciplinary action.
Unidentified Justice: Well, it seems to me that if a teacher teaching chemistry tells the child, don't go to dance class, that wouldn't be enforceable.
That's why I was asking what authority.
Was this his teacher?
Was it his home room teacher?
Mr. Coats: I think that there is--
Unidentified Justice: Was it just a teacher?
Mr. Coats: --a significant question of prior restraint, and if the teacher, you know, could ask him... I would think that we would be premature there, in that we did not have a proper basis for disciplinary action until after he gave the speech.
Unidentified Justice: I think what I'm getting at... I'm not trying to be mysterious about it.
If the school had a possibility, had notice and an opportunity to stop the speech, it would be a different case, wouldn't it?
Mr. Coats: Yes.
That is not the facts here.
Unidentified Justice: Well, that's what I'm trying to get at.
Mr. Coats: Okay.
I misconstrued your question.
The record is as I recited it.
Unidentified Justice: Right.
Mr. Coats: The school district did have a duty to these other students to impress upon them that in this educational activity this type of speech wasn't appropriate in any way whatsoever.
And I think it's important to note that the district acted with restraint.
Again, if you read the record from the school district, one of the findings of the hearing officer who considered this was that a lesser form of corrective action would not have corrected this particular problem.
Indeed, the speech district feels strongly that in its capacity as an educator and dealing with these students it had an obligation to respond to this particular speech.
Mr. Fraser seems to argue that the school district's sole remedy is to talk it over with him, to debate with him the appropriateness of this.
We submit to this Court that Mr. Fraser's argument misconstrues the relationship of a student to an educator.
It's not a relationship of one debater to another, that indeed the educator has authority over the student when properly exercised.
Finally, we submit to you that the real question is if the speech district could regulate this speech.
This Court held as recently as last week in the Public Utilities case out of California that the First Amendment does not dictate that you respond or ignore a speech, or as we would phrase it, the First Amendment may restrict a school district's ability to censor various views in the student school system, but once they are able to regulate an area, such as vulgarity and indecency, the First Amendment does not dictate how they must go about that.
We also note that there are important secondary effects in this case.
We think it's important that this came up under the school district's disruptive conduct rule, and when you read that rule, clearly a school district has the right to proscribe disruptive conduct in the school setting.
And this board of directors in advance gave notice and concluded that obscene and profane speech was inherently harmful and disruptive to the public school setting.
Essentially what the Ninth Circuit has held is that a public school district cannot reach that conclusion and cannot have such a rule.
We submit to you that the board's determination that vulgarity and indecency was inherently harmful in the public school setting is supported by a rational basis.
First of all, the school has a duty to protect the young adults, who are there in essentially a captive audience.
Secondly, such conduct is inherently demeaning to the school setting.
This is where we require in the State of Washington students to come to learn.
As this Court has recognized in cases such as Pico, where the plurality spoke, and where it expressed its concern in that opinion that the district did not have the authority to suppress ideas in the school setting, but it had no problem, it said, if there had been a facially neutral rule designed to prohibit indecent language in a public school setting.
Unidentified Justice: Mr. Coats, may I just ask on the rule, the rule prohibits disruptive... I mean, material and substantial interference with the educational process, including obscene and profane language.
Now, what is... precisely that is your position, that this was obscene language within the meaning of the rule?
Mr. Coats: Yes.
You'll find that that was considered again by the hearing officer's decision at the school district, and the school district's interpretation of its own rule is that obscene should be given its common and ordinary meaning, which includes lewd and vulgar language.
Unidentified Justice: Of course, we're dealing by hypothesis with speech that's non-obscene for constitutional purposes.
Mr. Coats: The speech does not meet the standard of Miller versus California.
We concede that.
It's not close.
But I would point out to you that the standard that was set out in Miller versus California on obscenity according to this Court was designed only to prescribe hard-core pornography.
And this Court has recognized that there are some lesser standards which may apply in particular situations, such as in FCC versus Pacifica, the Mini Theatres case out of Detroit.
And we're suggesting that a lesser standard is appropriate in a public school setting.
Now, the standard that we have proposed essentially is that first you look at the constitutional right we're enforcing, and that when there is a suppression of ideas or a discrimination against ideas, that the school district have to show with a higher standard or show some compelling interest its reason for suppressing those ideas.
But here, where the only... where the record clearly shows that the only purpose for the school's action was to suppress vulgarity and indecency in the public school setting, then we would suggest to the Court that a school district should only have to meet a standard of showing a rational educational basis, and clearly there is such a basis.
Unidentified Justice: May I just ask this question about it?
I understand that the board construed the word obscene in this case to cover this speech.
Is there any prior history indicating within the school's own proceedings of any kind that the word "obscene" as used in the rule was intended to be as broad as interpreted in this case?
Mr. Coats: Were there prior cases?
Unidentified Justice: Anything that would fairly... the question is the same thing, I think, maybe Justice O'Connor was driving at, the fair notice to the student as to whether this speech was covered by this word.
Mr. Coats: I think my response to you was that we have no written decisions in construing this, and that to my knowledge this is the first time that the district had construed its own rule where there was a record kept.
Now, school rules are enforced on a daily basis in the public school setting, and I can assure you that if a student swears or is vulgar in the school setting, whether it's in a classroom, in the hall, or in an assembly, school officials have taken corrective action.
But most of the time we don't get an appeal from that.
Here there was also, as is shown in the record, there was a prior occasion the year before where a student used, actually in as ASB assembly, used inappropriate speech.
And indeed, the district called the student into the office, and in fact the principal talked to him and what he would consider disciplined him, told him that, you know, that better be stopped or he's going to be in trouble.
Now, Mr. Fraser construes that, he says, well, he knew that speech was given and he thought that the only that happened was the principal called him in and talked to him about it, big deal.
I mean, he gives probably the best evidence we have of why the district in this case was compelled to take a more demonstrative action to impress upon the students that this was not appropriate speech in that particular forum, in that public setting.
If possible, I'd like to reserve the remaining time for rebuttal.
Chief Justice Burger: Very well.
ORAL ARGUMENT OF JEFFREY T. HALEY, ESQ. ON BEHALF OF RESPONDENTS
Mr. Haley: Mr. Chief Justice, may it please the Court:
I will begin my rebuttal, my response, with some response to positions taken by my opposing counsel, and I will begin with what was the most important error by opposing counsel in characterizing the record.
He said that two teacher told Matt Fraser don't give it, is what he said.
I will quote from the record:
"I told Matt that his speech was inappropriate and that he probably should not deliver it. "
That was the first teacher, who was most critical of the speech, Mrs. Hicks.
That's at page 30 of the joint appendix.
The second teacher, I'm quoting:
"My response at that time was that I told Matt that this would indeed cause problems and that it would raise eyebrows. "
That was the extent of his warning not to give the speech.
None of them suggested that it might violate a school rule.
If fact, the first teacher, who was most critical of it, said in her testimony afterwards at the trial:
"I wasn't that there was a school rule regarding that. "
In this case, if the teachers don't have any idea that such a speech might violate a school rule, when they are charged with enforcement of the school rule as among their duties as teachers, the rule is clearly so vague and so lacking of adequate notice, at least when it comes to First Amendment rights, freedom of speech, that they cannot punish a student who gave a speech after previewing it with three teachers.
Unidentified Justice: Does the school have a written rule that one shall not swear in Latin class?
Mr. Haley: The written rule is the same rule that we're talking about here.
Unidentified Justice: I know.
I'm asking you, yes or no?
Mr. Haley: Yes, it does.
Unidentified Justice: That one shall not swear in Latin class?
Mr. Haley: The rule does not say one shall not swear in Latin class.
The rule says that obscene or profane language will be considered disruptive.
Certainly, the disruptive conduct exception articulated by Tinker can reach the content of speech, can reach speech which due solely to its content is disruptive.
And I suggest in Latin class profanity would distract students from the lessons at hand, would show disrespect to the teacher, and would disrupt the order of the class, and would be disruptive of the educational process.
Unidentified Justice: But you think it's all right in the assembly?
Mr. Haley: Well, we must distinguish carefully between profanity or dirty words, which are relatively easily identified, and which have very few purposes that are other than to insult or to create a negative emotional reaction or to vent a negative emotional reaction, and sexual metaphors, which, especially in this case, did not have any such purpose, to insult or to vent an emotional reaction or to create a negative emotional reaction.
Unidentified Justice: Suppose it were a school rule that explicitly said that speech that stimulated simulated sexual conduct would be disciplined, and then suppose this speech had been given.
Also assume the rule was posted on the bulletin board of every room in the schoolhouse.
Mr. Haley: A rule which prohibited speech describing sexual conduct?
Unidentified Justice: That stimulated simulating sexual conduct.
What I'm interested in is whether, if adequate notice were given so that no one could have misconstrued it, that this sort of speech would result in punishment, what would your response be?
Mr. Haley: I think it's very difficult for students, or for that matter for anyone, to anticipate how other juvenile students will respond to any particular speech.
Unidentified Justice: So you're saying that notice really doesn't matter?
Mr. Haley: I'm saying that a rule which prohibits speech that might stimulate a response by someone else which has a sexual character would be a rule that would be far too vague and too overbroad to withstand First Amendment scrutiny.
Unidentified Justice: Can you conceive of any rule that would not be too vague?
Mr. Haley: Well, certainly a rule which prohibits obscene speech, and obscene speech--
Unidentified Justice: You man obscene in the Miller sense, our decision in Miller?
Mr. Haley: --No.
I think counsel is misconstruing the opinions of this Court when they suggest that Miller is the test that must be met for obscenity in the high schools.
Ginsberg suggests that obscenity is a much lower standard, a much easier standard to meet for children, and this speech might well have been obscene for elementary schools or junior high schools under the proper Miller and Ginsberg test.
I don't think that we need a full Miller test at the high schools.
Unidentified Justice: How would you limit the use of "obscene" in this particular rule, then?
Mr. Haley: How would I limit the use of "obscene"?
Unidentified Justice: Yes.
That word was in the rule.
Mr. Haley: That word was in the rule.
In the case of FCC versus Pacifica, there was a... that rule prohibited indecent speech.
Unidentified Justice: Yes.
Mr. Haley: This rule does not prohibit indecent speech.
It only prohibits
"obscene, profane language or gestures. "
When it refers to language, it's clearly talking about words, as in the result in the FCC case.
It's talking about dirty words.
Unidentified Justice: If it had prohibited indecent speech, would your position be different?
Mr. Haley: With respect to vagueness of the rule, it certainly would.
Unidentified Justice: Well, Mr. Haley, supposing that the rule has simply prohibited this particular speech in haec verba, so that there could be no question that the person who was about to deliver the speech knew that it was prohibited by the rule.
Do you think that rule is bad under the First Amendment?
Mr. Haley: The issue before... we have two issues before us.
Unidentified Justice: Can you answer the question?
Mr. Haley: One, whether the rule can survive scrutiny under vagueness and overbreadth; and two, whether this speech would be protected no matter what rule was promulgated by the school before it was presented.
Unidentified Justice: I asked you a question.
Mr. Haley: If this speech cannot be protected, then certainly that rule would be sufficient to punish Mr. Fraser in this case.
Unidentified Justice: And that is your answer, that a rule that prohibited this speech in so many words would be constitutional?
Mr. Haley: If this speech can be prohibited under the First Amendment.
Unidentified Justice: Well, can you give me a non-hypothetical answer to my question?
Mr. Haley: Well, a rule which prohibits speech that's protected by the Constitution is not a valid rule.
Unidentified Justice: I agree with you.
Mr. Haley: This Court has yet to decide whether this speech, although it's been decided by two courts below, is protected by the Constitution.
Unidentified Justice: But what's your position?
Mr. Haley: My position is this speech is in fact protected by the Constitution.
Unidentified Justice: So that no matter how specific the rule in giving notice, it would be bad under the First Amendment?
Mr. Haley: That's correct.
Unidentified Justice: Are you suggesting that the students were confused or this student was confused by the use of the word "indecent" or "obscene" instead of "indecent"?
Mr. Haley: Well, in fact this student was not given the handbook until after he was disciplined in this case, and so I'm not suggesting that he actually read the rule and was confused.
But this is the rule that had guided the school for all the years that he had been at the school, and it had not been applied to speeches which used no profanity, were not in any way disruptive of a class or any curricular activity, or for that matter any extracurricular activity.
And there were speeches that had been given at the same nominating assembly one year earlier which contained a four letter word and contained a sexual reference.
That student was not suspended from school.
He was simply lectured in what I would suggest is an appropriate fashion under the First Amendment.
Unidentified Justice: Mr. Haley, what if the student here had, instead of the sexual innuendo in the talk, incorporated instead a string of profane words?
Would that have survived First Amendment analysis?
Mr. Haley: Well, I think the proper standard for profane words in the high schools is the Tinker standard, and profane words might in most cases, almost all cases, be disruptive of the educational process.
They would, when they're used from one student to another, tend to--
Unidentified Justice: Well, let's suppose there was the same amount of disruption we had in this case, but instead of sexual innuendo, it was a string of profane words.
Mr. Haley: --Whether each particular speech is protected by the Constitution depends upon the context of that speech.
I can easily imagine that his use of profanity might have created antagonism between students, as a racial slur or a religious epithet might have, and yet--
Unidentified Justice: Assuming the same amount of disruption that we have here, would my example create a problem under the First Amendment?
Mr. Haley: --If the school had a rule which prohibited the use of dirty words--
Unidentified Justice: The same rule that we have here.
We don't have the notice question.
I'm interested in the First Amendment aspect.
Mr. Haley: --It's a difficult question, but I think that it could be prohibited and the punishment would be appropriate.
Unidentified Justice: Well, I'm not sure that I know the basis for the distinction then in your view for First Amendment analysis.
Mr. Haley: The basis is twofold for distinguishing between the use of profanity or dirty words and mere sexual allusion or imagery.
First of all, we know what dirty words are, we know what profanity is.
It's a much clearer line and a much easier standard to apply, both for administrators in the schools and for courts developing principled decisions under it.
Unidentified Justice: Second of all, there are very few uses for profanity in the school context which do not tend to create antagonism between students or tend to create disrespect between students and teachers or tend to have divisive, disruptive effects within the school situation.
There are so few uses that the school might constitutionally pass, adopt a rule which said its use is entirely prohibited.
I suggest that a better rule would say its use in public is prohibited, and that between consenting students on the school grounds they might use such profanity, but any time it's used in public it is so inherently likely to disrupt that we're going to rule it out in all cases.
I think that would be constitutional.
In the last analysis, though, isn't it a regulation of the manner of speech, as opposed to viewpoint suppression?
Mr. Haley: Well, I do not see this rule as applied in this case as a time, place and manner restriction.
I see it very much as a content restriction.
That does not mean that it is impermissible in the schools, because certainly schools can regulate the content of speech under the Tinker standard... disruption.
But in this case, this particular speech was not disruptive.
The sexual metaphor that was used in this speech was not in any way intended to insult or create divisiveness between students or cause any disruption, and the record shows that there was no disruption.
First of all, when Matt Fraser was accused of violating a school rule no one mentioned that they thought he disrupted the educational process.
They presented five letters to him which characterized the speech as inappropriate, obscene, profane, et cetera, and those letters did not mention that they thought that there had been any disruption.
It wasn't until the attorneys for the school district got involved with this case that the justification on the basis of disruption was advanced.
Unidentified Justice: Counsel, do you tell me that if I find that it was any one of those three words I have to rule against you?
Mr. Haley: That if it was profane or obscene?
Unidentified Justice: You had a third one.
Mr. Haley: Or indecent?
Unidentified Justice: Yes.
Mr. Haley: Well, the rule does not prohibit indecent speech.
My Webster's Seventh Collegiate Dictionary does not define the word "obscene" to include "indecent".
The dictionary which they cite includes "offensive to modesty", and I submit that any speech which is offensive to modesty cannot be prohibited within the school rules.
Unidentified Justice: Well, a stupid speech might be offensive.
A stupid speech might be offensive.
Mr. Haley: It might indeed.
Stupid speeches, and for that matter humorous speeches, are protected by the Constitution.
Unidentified Justice: Wouldn't you find this speech offensive to intelligent people?
Mr. Haley: No, personally I don't find it offensive.
The record suggests that most of the students were quite entertained by the speech, that it did succeed in establishing a rapport with the students, and that they... it succeeded in getting the candidate elected.
Sex is not a forbidden topic for students.
Unidentified Justice: You think that speech got him elected?
Mr. Haley: His candidate.
Unidentified Justice: Do you think that speech got that candidate elected?
Mr. Haley: The candidate might have been elected had the speech not been given.
Unidentified Justice: Do you really want to blame that on 600 people?
Mr. Haley: Say that again?
Unidentified Justice: Do you want to blame that on 600 people?
Mr. Haley: Well, the school district attempts to justify its punishment on the assertion that some students in the audience might have been offended by the speech, and I don't think that's a sufficient justification to prohibit speech in our society.
In our society, especially in the political context, which this speech certainly was, speech which offends a few people because they choose not to hear a speech of that sort is nevertheless protected by the Constitution.
That is one of the elements of our system of government, our system of democracy, that gives it its strength.
Unidentified Justice: Do you think this was political speech?
Mr. Haley: It is very much a political speech.
Unidentified Justice: It's a student political campaign, but it's nothing like the speech in Tinker, which really related to politics.
Here, do you think the words that are particularly involved had anything to do with the political campaign?
Mr. Haley: The messages that he conveyed, the content, which included sexual allusions, was part of a political speech.
Unidentified Justice: Are you suggesting there could be no... that the school couldn't regulate at all what one said in political speech?
Mr. Haley: No, I'm not suggesting that.
Within the school environment, speech within political speech can be regulated which is disruptive of the educational process.
Any disruption which is likely to spill over into the hallways or classrooms or create personal antagonisms between students might well be prohibited.
Unidentified Justice: There's some evidence of disruption here, isn't there?
Mr. Haley: The teachers, before they talked to their attorneys, did not claim that the speech disrupted the educational process.
The trial court specifically found that there was no disruption of the educational process.
Both of the judges in the majority of the Court of Appeals found that there was no disruption of the educational process, and the judge who dissented in the Court of Appeals in his dissenting opinion did not find any disruption shown in the record.
Unidentified Justice: May I just ask you one other question, then I'll try to keep quiet.
Do you think public schools have a duty to teach anything except reading, writing, and arithmetic, history, biology, chemistry?
Do you think they have any duty to teach societal values, decency in speech, moral values?
Mr. Haley: I do very much think they have duties to teach moral values, decency in speech, societal values.
But teaching is best accomplished through persuasion and example, not mere punishment, which tends to produce rebellion within adolescents.
And that is a more than adequate alternative in this case for teaching those community values, for achieving that state interest.
Unidentified Justice: The Court of Appeals' opinion here indicates that he intentionally and knowingly used sexual innuendo in his speech, and then it goes on to say:
"Fraser did so because he thought it would be effective to establish a rapport with his fellow students and perhaps amuse them. "
"Whether he succeeded. "
--this is still the judge speaking.
"Whether he succeeded or whether he went over the line of good taste and became offensive is for his fellow students to judge when they cast their ballots in the school election. "
Is that really... am I reading what a judge of the federal court said?
Mr. Haley: Well, I think the federal court--
Unidentified Justice: That the new test is whether it works?
Mr. Haley: --Certainly the courts should not be in the position of deciding what is in good taste and what is not in good taste, what is appropriate and what is not appropriate.
Unidentified Justice: Well, this suggests that if the candidate he was supporting had been defeated they might have had a different view, but because it worked it is all right.
Is that your view, too?
Mr. Haley: That's not my reading of the opinion.
My reading of the opinion--
Unidentified Justice: Well, what does it say?
I'll read it to you again:
"Whether he succeeded or whether he went over the line and became offensive is for his fellow students to judge when they cast their ballots. "
Is that your view, too?
Mr. Haley: --I think that the judge is saying, and this would be my view, that the courts should not involve themselves in questions of whether the speech was inappropriate or distasteful.
The question is whether this speech is protected by the First Amendment, and those who are in a position to judge whether it's distasteful or inappropriate are the students and, for that matter, the teacher and administrators who might tell the students and tell this particular student that the speech is distasteful and inappropriate and they think that it should not be used in a political assembly.
But once the students are granted the forum to exercise students politics, to say you can have an experience in American politics, but it won't be a complete experience because we're not going to give you freedom of speech, we're going to censor what you have to say and limit it, we're going to prohibit from you speech which is on a very important topic to your peers, a topic that is constantly on the minds of teen-agers, really gives them an inappropriate message.
Unidentified Justice: But this wasn't a speech about sex.
I mean, it was about politics, with sexual innuendo in the speech.
Are you saying that if the school board decides that there shall be a campaign for student government and student body president, as apparently the State of Washington requires, they can place no limits on the methods of campaigning that aren't placed on campaigning in the main political forum?
Mr. Haley: Of course they can place the limit that the method of campaigning or the content of campaign speeches not be disruptive within the educational environment.
Unidentified Justice: How about if they just said it's got to be in good taste?
Mr. Haley: No, I don't... once they grant the students a forum for political speech, for conducting their own political exercises, they cannot tell the students that their speeches must be in good taste.
Unidentified Justice: What is they said that this forum is granted to you on this condition, that you speak in good taste?
Mr. Haley: I don't think that the schools can do that.
I think that once they--
Unidentified Justice: Can they require students' answers in a classroom to be in good taste?
Mr. Haley: --Certainly they can.
That is a curricular activity.
Unidentified Justice: So if a student got up and made an answer in a classroom that was comparable to this, you would say that could be punished by the school?
Mr. Haley: Certainly.
They could give him a bad grade, they could kick him out of the classroom.
If it were a repeated problem, they could suspend him.
Unidentified Justice: So the difference that you see is that this was in an organized assembly, rather than in a classroom?
Mr. Haley: This was in an extracurricular activity.
When we're balancing the interests, the state interests--
Unidentified Justice: When you say "extracurricular activity", it was... no student was free to leave this assembly and go home, was he?
Mr. Haley: --Well, no.
But whenever students are granted a period of time to conduct extracurricular activities, they aren't free to go home.
They must choose one of the extracurricular activities or go to a study hall, and that was the choice here.
There was only one extracurricular activity offered, participating in student politics.
But just because the state says they must offer the students an opportunity to conduct student politics doesn't mean that students have to attend.
They could all have gone to study hall.
Unidentified Justice: Is there anything in the record below that indicates what percentage of the student body turned out for this assembly?
Mr. Haley: The estimates are that almost all the students or virtually all the students did attend the assembly.
Unidentified Justice: Are you familiar with the rules of the House and the Senate, at least by legend and I think accurately, are drafted originally by Thomas Jefferson?
Mr. Haley: No, I am not familiar with them.
Unidentified Justice: Well, then you couldn't very well have a view as to whether or not this same speech on the floor of the Senate would be subject to censure?
Mr. Haley: No, I wouldn't venture a view on that.
Unidentified Justice: Well, let's hypothetically... we've gotten into some, you have... suppose it did.
Would you say the First Amendment would render the rule of the Senate unconstitutional, if this same rule were applied and a Senator were censured for making this kind of a speech on the floor of the Senate?
Mr. Haley: Well, if you would like my off the cuff analysis, it seems to me that once a group of people assemble together they can adopt rules among themselves to control their own behavior within the organization.
And likewise, the students themselves could have adopted a rule which would say: Within the conduct of our student politics or within our particular party, we're going to have a party assembly and meeting and we're going to say that none of our members will be able to give speeches of this sort, or this topic is taboo.
Yes, I do think they could do that as a matter of the rules of the body of an organization.
Unidentified Justice: Well, do you mean the First Amendment would permit the students to put a limit which the teachers and the school system could not?
Mr. Haley: If the students are voluntarily participating in an organization and that organization adopts rules for the conduct of its own meetings or activities, then yes, I think that organization can adopt such rules.
Unidentified Justice: That's a unique view of the First Amendment.
We've stricken statutes adopted by legislatures sometimes because they violated the First Amendment.
Mr. Haley: Well, you're asking for my off the cuff analysis and I'm viewing it as an organization that is analogous to a private organization.
The state has various interests in the public schools that must be balanced against the First Amendment interests within the public schools.
In the classroom the interest tips strongly in favor of the state, because there are many sorts of speeches which based on their content might be disruptive of the educational process.
In the extracurricular activities, it tips much more the other way; and in student politics it tips the farthest of any of those extracurricular activities.
Politics is an area where speech is accorded its highest protection.
If we allow schools to tell students that they will have an experience in politics within America and then tell them that they can be punished if they give expression which the administrators find distasteful or inappropriate, but nothing more serious than that, we are teaching the students an ugly lesson, that those in power can suppress the speech of those with whom they disagree.
This is a pure speech case.
This case does not involve the maintenance of discipline in the school, the control of the use of drugs, weapons or violence.
It's not a situation where the school administrators need more tools to maintain an educational environment.
If the educational environment were disrupted by this speech, yes, it could be prohibited.
But it wasn't.
The teachers of this country believe that they have adequate tools to deal with this problem, that this is not a serious problem within the schools, when students present speech which contain sexual metaphors no different from what they're taught in the classes in Shakespeare.
Romeo and Juliet is a standard text within the classes and there are sexual allusions and metaphor in Romeo and Juliet that are more explicit, that are actually describing sexual activity.
When students are allowed to... are presented this in the classroom, teachers do not find that they have a problem dealing with this problem with students.
I will respond to the assertion of the captive audience.
All audiences, of course, are to a certain extent captive.
But the form of expression used in this case is not unusual for high school students.
This is not something that the audience who attended this assembly would have been surprised to hear.
They heard a sexual reference and a four letter word in a speech at a similar assembly one year earlier.
Sexuality is a topic that is of great interest to teenagers.
Commonly known statistics show that a great number of teenagers are in fact becoming pregnant while in high school.
If we want to teach students to discuss the topic of sexuality properly, appropriately, responsively--
Unidentified Justice: You're suggesting that this is part of the teaching process?
Mr. Haley: --I'm suggesting that if the schools want to teach the students that this speech is inappropriate, they should tell that to the students.
They should conduct... convene an assembly of the students and give them a presentation on why this speech is inappropriate, a presentation on what political speech in America is all about and what kind of speech in the adult world is persuasive and what is offensive.
They should present that to all the students.
They could present that to Matt Fraser himself.
And that... and the National Education Association has taken the position that that is a more than adequate tool for dealing with this problem, that sexual metaphor is not a serious problem in the schools, unlike other discipline problems.
Unidentified Justice: The NEA represents teachers, not school administrators, doesn't it?
Mr. Haley: That is correct.
My opposing counsel suggests that speech can... that the local rules should be adopted by local school boards and with presumably the approval of the local parents, and that those rules ought to apply whether... no matter what the rules are.
Well, the cases of Tinker and West Virginia versus Barnette show that that cannot be the law in this country, Tinker and West Virginia versus Barnette make it clear that the Constitution does restrict the latitude of local school boards from adopting rules of that nature.
Let me return to the vagueness issue.
The construction that the school board has applied in this case to the rule was made after the speech was presented.
There is nothing that was done to construe this rule or give the students notice that a rule prohibiting obscene, profane language would apply to a speech which contains no profanity or no speech... no words which by themselves would cause offense.
Unidentified Justice: Well, he must have been somewhat concerned about it, don't you think, Mr. Haley?
He went to some teachers and asked their judgment on it.
Mr. Haley: I do think that shows that he was concerned that it might violate a school rule, and that when he was told... when none of the teachers suggested that it might violate a school rule and none of them took any action to block the presentation of his speech, none of them told him not to give the speech or went to the administration and said--
Unidentified Justice: Well, they came pretty close to telling him not to give the speech.
If he has any sensitivity, he'd know that that is what they were saying.
Mr. Haley: --The record shows that the teachers responded in the proper fashion under the First Amendment.
They gave more speech to present their view of the propriety of his speech and they indicated to him, but Matt, we will leave it up to you; if you think that this is a speech that you want to present at that political assembly, then we're not going to stop you.
Unidentified Justice: They said that in so many words?
You haven't read those words to us.
Mr. Haley: Well, the third teacher, whose testimony was not explicitly stated in the record of the trial court, but whose analysis of the speech was presented in a letter given to the administration, which is reprinted at the end of the--
Unidentified Justice: Why did he go to the teachers at all?
Mr. Haley: --Well, the record does not suggest why he went to the teachers at all in any specific manner.
My understanding from working on this case from the beginning is that he went to the teachers for two reasons: One, to see whether they thought that he would get in trouble for presenting the speech or whether this was something that they wanted to stop; and two, because he had a relationship with these teachers of student and teacher and he wanted to show them what he was doing, he wanted to show them how clever he was and how artfully he had created a speech which would be very entertaining to his classmates.
Unidentified Justice: You regard this as a clever speech?
Mr. Haley: I believe the record contains the analysis, the comments of some of the people in the school, teachers or students, who did view the speech as clever.
I think within the context of the adolescent mind and the kinds of things that they're interested in, they did find it very clever.
My time is up.
Chief Justice Burger: Mr. Coats.
REBUTTAL ARGUMENT OF WILLIAM A. COATS, ESQ., ON BEHALF OF PETITIONERS
Mr. Coats: Thank you, Mr. Chief Justice, and may it please the Court:
By way of response, Mr. Haley did read from the record, but he didn't go on.
And I did ask, when the teacher said, I told him I thought it could cause problems, I said: Well, could you explain what you thought you implied?
And the teacher said: Well, I think by saying that it could cause problems and raise eyebrows, I also realized that the speech was indeed ambiguous and could be interpreted a number of ways.
So rather than debate with Matt the morality and profanity in it, I thought it might be best to just point out or at last try to reason that it could indeed cause problems as far as his remaining few weeks at the school.
I didn't know what the consequences could be.
And indeed, the teacher does not administer the discipline.
But when you read, a fair reading of the record, when you realize this is ten minutes before the speech, when these teachers had other students present, I think that they went... their comments could not be construed as giving this student license to say anything he wants to say at that assembly.
I want to respond first to Justice Powell's question, is this political speech?
And Justice Powell, I'd refer you to this Court's decision in Conick versus Meyers, and in that case the Court considered speech between an assistant district attorney, or actually a petition an assistant district attorney circulated in the office, and she was fired as a result of that petition.
And this Court in considering that case said that there was only one question in that petition that had any public significance and the rest of it was just an internal communication within the office, and that this Court should not involve itself.
We would suggest to you that that case applies here, that there is no big political issue being discussed.
It was a crude joke.
Secondly, I want to follow up on Mr. Justice Renquist's question about, does it make any difference is this is a classroom or an assembly?
And I would suggest to you that it's not up to Mr. Fraser to determine the school district's curriculum.
And indeed, what the statute says is that a school district shall have an associated student body, and it's under the control and direction of the board of directors.
Now, if the board of directors concludes that the best educational environment is a school assembly, that that's the proper place to inculcate values, that that's the proper place to in fact allow the students to learn public discourse, that that does not change any of the factors which give school districts the authority to regulate the content of speech in a school setting.
There is still the relationship of student to teacher.
There are still other students around.
Now, he tried to distinguish away the captive audience.
But I would suggest to you that what he's suggesting is that in order to participate in your school activities such as this, in your own school government, you should have to put up with this type of behavior.
That's clearly not the law.
Now going to the issue of notice and this Court's concern about a disruptive conduct rule, I think, first of all, it's important you understand how these rules are adopted, and I think the record is clear, first of all, that we do distribute student codes.
This is the total student code for Bethel.
Mr. Fraser testified that it was available to him.
Now, we can't force him to read it.
But the board of directors sets out its rules.
Unidentified Justice: They were passed out to the students?
Mr. Coats: It's available in the school for students to take.
Unidentified Justice: I know also that a $2 million portrait is also available to me if I put up $2 million for it.
Was it given to the students?
Mr. Coats: Mr. Justice Marshall, I don't--
Unidentified Justice: Yes or no?
Mr. Coats: --It was available to the students in the office, where they could pick it up without cost and where it was available to them.
Now, I cannot say it was passed out in class.
Unidentified Justice: But you had to go to the office to get it?
Mr. Coats: You would have to go to the office to get it, is my understanding.
It was clearly available, however.
We don't pass out, for example, criminal justice statutes either, but they are available.
I suggest to you that even the argument that the teachers should somehow be able to waive... even if the teacher said the speech was all right, they shouldn't be able to waive and undo the board of directors' own rule.
Now, in looking at the rule, I would point out that, in the area of vagueness and overbreadth, that outside of the criminal justice area this Court has recognized a much broader standard.
For example, in the case of Arnett versus Kennedy, this Court held that a standard of efficiency of the service is a basis for firing an individual.
In almost every labor contract throughout these United States, the standard for disciplining employees is cause or just cause.
In addition, in the State of Washington the standard for firing teachers is sufficient cause, without any further elaboration.
These rules do not have to meet the same specificity requirement as criminal statutes.
Furthermore, it would be totally impractical, impractical for two reasons--
Unidentified Justice: What is a teacher gave this speech at an assembly like this?
Could he be fired under the sufficient cause rule?
Mr. Coats: --Your Honor, I think if a teacher gave that speech at a school assembly, it would be a proper basis for disciplining that teacher and it would be--
Unidentified Justice: Could he be discharged under the sufficient cause rule, do you think?
Mr. Coats: --I would have some question of whether, if it was a first offense and there was no prior offense, whether we would--
Unidentified Justice: Assume it was a first offense and he just thought it would be a bright idea and a real clever speech.
Mr. Coats: --The reason why it's difficult for me to respond yes or no is that it is a sufficient cause standard.
I have no doubt there'd be a basis for discipline.
Now, whether we could sustain a discharge in front of an independent hearing officer, I have some question in my mind whether it's severe enough, whether the penalty fit the crime.
Unidentified Justice: If the nature of the penalty makes a difference, would you suggest that perhaps in this context maybe you could have called the student in and given him a severe lecture, but maybe not deprive him of the right to graduate?
Or do you think that it doesn't make any difference?
Mr. Coats: We didn't deprive him of the right to graduate.
Unidentified Justice: Well, I suppose you could have, though, couldn't you?
Mr. Coats: Yes, we could.
There's no doubt and I think there's a reasonable education debate on what was the appropriate punishment here.
But I'd suggest to you that that's not a question that the federal court need answer.
That's something that's vested in the sound discretion of the public school administration, following the procedure--
Unidentified Justice: If you're right, and you may well be, under this rule he could have been expelled from school and there'd be no constitutional objection?
Mr. Coats: --I don't think it's a First Amendment issue.
I think in any discipline case there's a due process issue of whether the punishment fits the crime.
You'll note in the State of Washington--
Unidentified Justice: But one of the elements of the crime is the fact that it is speech?
Mr. Coats: --There's no question he's being punished for his speech here, and that that, you know, whether or not we can regulate that speech is clearly a First Amendment issue.
Now, once we're over that hurdle, and assuming this Court says yes, you can regulate this particular speech, the issue is then what's the effective way of doing it, should it have been a two day suspension or should we just talk to him, should it have been more, that seems to me to be an issue that the First Amendment does not dictate.
The First Amendment was never designed to dictate curriculum or punishment in public schools.
I think that is something that's clearly vested in the discretion of the school officials, within the parameters of the due process rules under which we operate.
And when you look at the rule and you judge its content, I think it's important to note that in Washington the rules aren't drafted by lawyers.
We have a statute that requires that students, that parents and administrators actually work on our codes and adopt them; that the legislature has adopted a policy of participation of those who have the greatest stake in the educational outcome to actually work on these rules and adopt them.
So when you look at the word "obscene", most of the people who are drafting this have never heard of Miller and California, I would suggest, and are not aware of the standards set forth therein; and that the district's hearing officer was correct in looking at its common and ordinary meaning, which includes indecent.
And so I think that we would hope that you would look at the context of the school rules, realizing that they're not drafted by attorneys for attorneys.
Chief Justice Burger: Your time has expired now.
Mr. Coats: Thank you.
Chief Justice Burger: Some of the Justices may be interested in seeing that booklet.
Would you leave it with the clerk?
Mr. Coats: Indeed.
It's Exhibit B in the record, by the way.
Chief Justice Burger: It is an exhibit, too?
Mr. Coats: It's Exhibit B in the record, but I will leave a copy for the Court gladly.
Chief Justice Burger: Very well, gentlemen.
Thank you, gentlemen.
The case is submitted.