Today in 1986: SCOTUS limits student free speech

July 7, 2016

Today in Legal HistoryOver the past two decades, the Supreme Court has made a number of rulings expanding the protections afforded by the First Amendment’s guarantee of freedom of speech.  These include even controversial or debatable forms of speech such as corporate political expenditures, cross-burning, violent video games, graphic depictions of animal cruelty, and protests of military funerals by the Westboro Baptist Church.

But one area that has thus far evaded enhanced protection by the Court is student speech.  Indeed, 2007’s Morse v. Frederick, in which the Court upheld school suppression of student speech viewed as promoting drug use (“BONG HiTS 4 JESUS”).

The Court’s jurisprudence on restrictive student speech didn’t begin with Morse, however; that distinction belongs to Bethel School District v. Fraser, decided on July 7, 1986.

The 30 year old case begins with a speech given by then-high school senior Matthew Fraser in April of 1983.  The purpose of the speech was to nominate a fellow classmate (Jeff Kuhlman) for a student elective office during an assembly at the school.  As you can see below, the speech is laced with thinly-veiled sexual innuendo:

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 ASB vice-president—he’ll never come [long pause] between you and the best our high school can be.

As one could imagine, the speech went over relatively well with the student body and Kuhlman was elected by a wide margin.  The school faculty and staff, on the other hand, were not amused.

The day after the speech, Fraser was required to report to the assistant principal’s office and to produce a text copy of his speech.  During the meeting, Fraser was told that he was being charged with violating the school’s disruptive conduct rule, which prohibits “[c]onduct which materially and substantially interferes with the educational process …, including the use of obscene, profane language or gestures.”  Fraser was suspended for three days, and his name was removed from the list of candidates for the graduation speaker.

Fraser filed a grievance of the disciplinary action to the district superintendent, which was denied.  His father then filed suit against the school district on behalf of Fraser, claiming that the district violated his rights under the constitutional rights to freedom of expression.

The district court agreed with Fraser, and enjoined the school district from imposing the disciplinary action against him.

The district appealed, and the Ninth Circuit affirmed, finding that under the Supreme Court’s 1969 Tinker v. Des Moines Independent School District decision,

the Bethel School District has failed to carry its burden of demonstrating that Fraser’s use of sexual innuendo in the nominating speech substantially disrupted or materially interfered in any way with the educational process.

The school district appealed, and the Supreme Court granted certiorari.  Rather than strictly following the precedent established by Tinker, though, the Court reversed the Ninth Circuit.  In his majority opinion, Chief Justice Warren Burger wrote that “[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

Further, Burger wrote, “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”

Finally, Burger noted that schools must also instill values that “include consideration of the personal sensibilities of other students.”  Considering Fraser’s considerable popularity after the speech (even after his name was stricken from the ballot of previously approved candidates for graduation speaker, he was elected nonetheless on a write-in vote), it seems that the other students weren’t terribly upset by his speech.  The same cannot be said for the school faculty and administrators, though, whose views the majority may have been truly advocating.

In any case, Fraser set the Court on a new course vis-à-vis its student speech jurisprudence, of which it had previously been relatively protective.

And if 2007’s Morse is any indication, that course doesn’t look to be deviating anytime soon.