Bethel School District No. 403 v. Fraser/Dissent Stevens

by John Paul Stevens

[p691] Justice STEVENS, dissenting.

“Frankly, my dear, I don't give a damn.”

When I was a high school student, the use of those words in a public forum shocked the Nation. Today Clark Gable's four-letter expletive is less offensive than it was then. Nevertheless, I assume that high school administrators may prohibit the use of that word in classroom discussion and even in extracurricular activities that are sponsored by the school and held on school premises. For I believe a school faculty must regulate the content as well as the style of student speech in carrying out its educational mission.^[1] It does seem to me, however, that if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. [p692] The interest in free speech protected by the First Amendment and the interest in fair procedure protected by the Due Process Clause of the Fourteenth Amendment combine to require this conclusion.

This respondent was an outstanding young man with a fine academic record. The fact that he was chosen by the student body to speak at the school's commencement exercises demonstrates that he was respected by his peers. This fact is relevant for two reasons. It confirms the conclusion that the discipline imposed on him-a 3-day suspension and ineligibility to speak at the school's graduation exercises-was sufficiently serious to justify invocation of the School District's grievance procedures. See Goss v. Lopez, 419 U.S. 565, 574-575, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). More importantly, it indicates that he was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word-or a sexual metaphor-than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.^[2]

The fact that the speech may not have been offensive to his audience-or that he honestly believed that it would be inoffensive-does not mean that he had a constitutional right to deliver it. For the school-not the student-must prescribe the rules of conduct in an educational institution.^[3] But it [p693] does mean that he should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate punitive consequences.

One might conclude that respondent should have known that he would be punished for giving this speech on three quite different theories: (1) It violated the “Disruptive Conduct” rule published in the student handbook; (2) he was specifically warned by his teachers; or (3) the impropriety is so obvious that no specific notice was required. I discuss each theory in turn.

The Disciplinary Rule

At the time the discipline was imposed, as well as in its defense of this lawsuit, the school took the position that respondent violated the following published rule:

“ ‘In addition to the criminal acts defined above, the commission of, or participation in certain noncriminal activities or acts may lead to disciplinary action. Generally, these are acts which disrupt and interfere with the educational process.

• * *

“ ‘ Disruptive Conduct. Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.’ ” 755 F.2d 1356, 1357, n. 1 (CA9 1985).

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

“[T]he record now before us yields no evidence that Fraser's use of a sexual innuendo in his speech materially interfered with activities at Bethel High School. While the students' reaction to Fraser's speech may fairly be characterized as boisterous, it was hardly disruptive [p694] of the educational process. In the words of Mr. McCutcheon, the school counselor whose testimony the District relies upon, the reaction of the student body ‘was not atypical to a high school auditorium assembly.’ In our view, a noisy response to the speech and sexually suggestive movements by three students in a crowd of 600 fail to rise to the level of a material interference with the educational process that justifies impinging upon Fraser's First Amendment right to express himself freely.

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

Thus, the evidence in the record, as interpreted by the District Court and the Court of Appeals, makes it perfectly clear that respondent's speech was not “conduct” prohibited by the disciplinary rule.^[4] Indeed, even if the language of the rule could be stretched to encompass the nondisruptive use of obscene or profane language, there is no such language in respondent's speech. What the speech does contain is a sexual metaphor that may unquestionably be offensive to some listeners in some settings. But if an impartial judge puts his [p695] or her own views about the metaphor to one side, I simply cannot understand how he or she could conclude that it is embraced by the above-quoted rule. At best, the rule is sufficiently ambiguous that without a further explanation or construction it could not advise the reader of the student handbook that the speech would be forbidden.^[5]

The Specific Warning by the Teachers

Respondent read his speech to three different teachers before he gave it. Mrs. Irene Hicks told him that she thought the speech “was inappropriate and that he probably should not deliver it.” App. 30. Steven DeHart told respondent “that this would indeed cause problems in that it would raise eyebrows.” Id., at 61. The third teacher, Shawn Madden, did not testify. None of the three suggested that the speech might violate a school rule. Id., at 49-50.

The fact that respondent reviewed the text of his speech with three different teachers before he gave it does indicate that he must have been aware of the possibility that it would provoke an adverse reaction, but the teachers' responses certainly did not give him any better notice of the likelihood of discipline than did the student handbook itself. In my opinion, therefore, the most difficult question is whether the speech was so obviously offensive that an intelligent high school student must be presumed to have realized that he would be punished for giving it.

[p696]

Obvious Impropriety

Justice Sutherland taught us that a “nuisance may be merely a right thing in the wrong place,-like a pig in the parlor instead of the barnyard.” Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926). Vulgar language, like vulgar animals, may be acceptable in some contexts and intolerable in others. See FCC v. Pacifica Foundation, 438 U.S. 726, 750, 98 S.Ct. 3026, 3041, 57 L.Ed.2d 1073 (1978). Indeed, even ordinary, inoffensive speech may be wholly unacceptable in some settings. See Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919); Pacifica, supra, 438 U.S., at 744-745, 98 S.Ct., at 3038.

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

For three reasons, I think not. First, it seems highly unlikely that he would have decided to deliver the speech if he had known that it would result in his suspension and disqualification from delivering the school commencement address. Second, I believe a strong presumption in favor of free expression should apply whenever an issue of this kind is arguable. Third, because the Court has adopted the policy of applying contemporary community standards in evaluating expression with sexual connotations, this Court should defer to the views of the district and circuit judges who are in a much better position to evaluate this speech than we are.

I would affirm the judgment of the Court of Appeals.

Footnotes

1. “Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time-one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet-the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a ‘compelling state interest’ to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of this kind should be made by academicians, not by federal judges, and their standards for decision should not be encumbered with ambiguous phrases like ‘compelling state interest.’ ” Widmar v. Vincent, 454 U.S. 263, 278-279, 102 S.Ct. 269, 279, 70 L.Ed.2d 440 (1981) (STEVENS, J., concurring in judgment) (footnotes omitted).'

   “Any student of history who has been reprimanded for talking about the World Series during a class discussion of the First Amendment knows that it is incorrect to state that a ‘time, place, or manner restriction may not be based upon either the content or subject matter of speech.’ ” Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 544-545, 100 S.Ct. 2326, 2337, 65 L.Ed.2d 319 (1980) (STEVENS, J., concurring in judgment).

2. As the Court of Appeals noted, there “is no evidence in the record indicating that any students found the speech to be offensive.” 755 F.2d 1356, 1361, n. 4 (CA9 1985). In its opinion today, the Court describes respondent as a “confused boy,” ante, at 3165, and repeatedly characterizes his audience of high school students as “children,” ante, at 3164, 3165. When a more orthodox message is being conveyed to a similar audience, four Members of today's majority would treat high school students like college students rather than like children. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (dissenting opinions).
3. See Arnold v. Carpenter, 459 F.2d 939, 944 (CA7 1972) (STEVENS, J., dissenting).
4. The Court's reliance on the school's authority to prohibit “unanticipated conduct disruptive of the educational process,” ante, at 3166, is misplaced. The findings of the District Court, which were upheld by the Court of Appeals, established that the speech was not “disruptive.” Departing from our normal practice concerning factual findings, the Court's decision rests on “utterly unproven, subjective impressions of some hypothetical students.” Bender v. Williamsport Area School Dist., 475 U.S., at 553, 106 S.Ct., at 1337.
5. The school's disruptive conduct rule is entirely concerned with “the educational process.” It does not expressly refer to extracurricular activities in general, or to student political campaigns or student debates. In contrast, “[i]n our Nation's legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate.” See ante, at 3164. If a written rule is needed to forewarn a United States Senator that the use of offensive speech may give rise to discipline, a high school student should be entitled to an equally unambiguous warning. Unlike the Manual of Parliamentary Practice drafted by Thomas Jefferson, this School District's rules of conduct contain no unequivocal prohibition against the use of “impertinent” speech or “indecent language.”