Bethel School District No. 403 v. Fraser/Concurrence Brennan

by William J. Brennan, Jr.

Justice BRENNAN, concurring in the judgment.

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

“ ‘I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character is firm-but most ... of all, his belief in you, the students of Bethel, is firm.

“ ‘Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts-he drives hard, pushing and pushing until finally-he succeeds.

“ ‘Jeff is a man who will go to the very end-even the climax, for each and every one of you.

“ ‘So vote for Jeff for A.S.B. vice-president-he'll never come between you and the best our high school can be.’ ” App. 47.

The Court, referring to these remarks as “obscene,” “vulgar,” “lewd,” and “offensively lewd,” concludes that school officials properly punished respondent for uttering the speech. Having read the full text of respondent's remarks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent's speech-and all that need be said-is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was [p688] not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits. Thus, while I concur in the Court's judgment, I write separately to express my understanding of the breadth of the Court's holding.

The Court today reaffirms the unimpeachable proposition that students do not “ ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ ” Ante, at 3163 (quoting Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)). If respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate, see Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); the Court's opinion does not suggest otherwise.^[1] Moreover, despite the Court's characterizations, the language respondent used is far removed from the very narrow class of “obscene” speech which the Court has held is not protected by the First Amendment. Ginsberg v. New York, 390 U.S. 629, 635, 88 S.Ct. 1274, 1278, 20 L.Ed.2d 195 (1968); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). It is true, however, that the State has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities. Thus, the Court holds that under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly which school officials conclude disrupted the school's educational [p689] mission.^[2]

In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate respondent's speech because they disagreed with the views he sought to express. Cf. Tinker, supra. Nor does this case involve an attempt by school officials to ban written materials they consider “inappropriate” for high school students, cf. Board of Education v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 4935 (1982), or to limit what students should hear, read, or learn about. Thus, the Court's holding concerns only the authority that school officials have to restrict a high school student's use of disruptive language in a speech given to a high school assembly.

The authority school officials have to regulate such speech by high school students is not limitless. See Thomas v. Board of Education, Granville Central School Dist., 607 F.2d 1043, 1057 (CA2 1979) (Newman, J., concurring in result) (“[S]chool officials ... do [not] have limitless discretion to apply their own notions of indecency. Courts have a First [p690] Amendment responsibility to insure that robust rhetoric... is not suppressed by prudish failures to distinguish the vigorous from the vulgar”). Under the circumstances of this case, however, I believe that school officials did not violate the First Amendment in determining that respondent should be disciplined for the disruptive language he used while addressing a high school assembly.^[3] Thus, I concur in the judgment reversing the decision of the Court of Appeals. Respondent's speech may well have been protected had he given it in school but under different circumstances, where the school's legitimate interests in teaching and maintaining civil public discourse were less weighty.

Footnotes

1. In the course of its opinion, the Court makes certain remarks concerning the authority of school officials to regulate student language in public schools. For example, the Court notes that “[n]othing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions.” Ante, at 3165. These statements obviously do not, and indeed given our prior precedents could not, refer to the government's authority generally to regulate the language used in public debate outside of the school environment.
2. The Court speculates that the speech was “insulting” to female students, and “seriously damaging” to 14-year-olds, so that school officials could legitimately suppress such expression in order to protect these groups. Ante, at 3165. There is no evidence in the record that any students, male or female, found the speech “insulting.” And while it was not unreasonable for school officials to conclude that respondent's remarks were inappropriate for a school-sponsored assembly, the language respondent used does not even approach the sexually explicit speech regulated in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), or the indecent speech banned in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). Indeed, to my mind, respondent's speech was no more “obscene,” “lewd,” or “sexually explicit” than the bulk of programs currently appearing on prime time television or in the local cinema. Thus, I disagree with the Court's suggestion that school officials could punish respondent's speech out of a need to protect younger students.
3. Respondent served two days' suspension and had his name removed from the list of candidates for graduation speaker at the school's commencement exercises, although he was eventually permitted to speak at the graduation. While I find this punishment somewhat severe in light of the nature of respondent's transgression, I cannot conclude that school officials exceeded the bounds of their disciplinary authority.