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Bethel School Dist. No. 403 v. Fraser, 478 US 675 (1986)., Study notes of School management&administration

A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides: "Conduct which materially and substantially interferes.

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BETHEL
SCHOOL
DIST.
NO.
403
v.
FRASER
Syllabus
BETHEL
SCHOOL
DISTRICT
NO.
403
ET
AL.
V.
FRASER,
A
MINOR,
ET
AL.
CERTIORARI
TO
THE
UNITED
STATES
COURT
OF
APPEALS
FOR
THE NINTH
CIRCUIT
No.
84-1667.
Argued
March
3,
1986-Decided July
7,
1986
Respondent
public
high
school
student
(hereafter
respondent)
delivered
a
speech
nominating
a
fellow
student
for
a
student
elective
office
at
a
voluntary
assembly
that
was held
during
school
hours
as
part
of
a
school-
sponsored
educational
program
in
self-government,
and
that
was
at-
tended
by
approximately
600
students,
many
of
whom
were
14-year-
olds.
During
the entire
speech,
respondent
referred
to
his
candidate
in
terms
of
an
elaborate,
graphic,
and
explicit
sexual
metaphor.
Some
of
the
students
at
the
assembly
hooted
and
yelled
during
the
speech,
some
mimicked
the
sexual
activities
alluded
to
in
the
speech,
and
others
appeared
to
be
bewildered
and
embarrassed.
Prior
to
delivering
the
speech,
respondent
discussed
it
with
several
teachers,
two
of
whom ad-
vised
him
that
it
was
inappropriate
and
should
not
be
given.
The
morn-
ing
after
the
assembly,
the Assistant
Principal
called
respondent
into
her
office
and notified
him
that
the
school
considered
his
speech to
have
been
a
violation
of
the
school's
"disruptive-conduct
rule,"
which
prohibited
conduct
that
substantially
interfered
with
the
educational
process,
in-
cluding
the
use
of
obscene,
profane language
or
gestures.
Respondent
was given
copies
of
teacher
reports
of
his
conduct,
and
was
given
a
chance
to explain
his conduct.
After
he
admitted
that
he
deliberately
used sexual
innuendo
in
the
speech,
he
was informed
that
he would
be
suspended
for
three
days,
and
that
his
name
would
be
removed
from
the
list
of
candidates
for
graduation
speaker
at
the
school's
commencement
exercises.
Review
of
the
disciplinary
action
through
petitioner
School
District's
grievance procedures
resulted
in
affirmance
of
the
discipline,
but
respondent
was
allowed
to
return
to
school
after
serving
only
two
days
of
his
suspension.
Respondent,
by
his
father
(also
a
respondent)
as
guardian
ad
litem,
then
filed
suit
in
Federal District
Court,
alleging
a
violation of his
First
Amendment
right
to
freedom
of
speech
and
seek-
ing
injunctive
relief
and
damages
under
42
U.
S. C.
§
1983.
The court
held
that
the
school's
sanctions
violated
the
First
Amendment,
that
the
school's
disruptive-conduct
rule
was
unconstitutionally
vague
and
over-
broad,
and
that
the
removal
of
respondent's
name from
the
graduation
speaker's
list
violated
the
Due
Process
Clause
of
the
Fourteenth
Amend-
ment.
The
court awarded
respondent
monetary
relief
and enjoined
the
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Download Bethel School Dist. No. 403 v. Fraser, 478 US 675 (1986). and more Study notes School management&administration in PDF only on Docsity!

BETHEL SCHOOL DIST. NO. 403 v. FRASER

Syllabus

BETHEL SCHOOL DISTRICT NO. 403 ET AL. V.

FRASER, A MINOR, ET AL.

CERTIORARI TO THE (^) UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT No. 84-1667. Argued March (^) 3, 1986-Decided July 7, 1986

Respondent public high (^) school student (hereafter respondent) delivered a speech nominating a fellow student (^) for a student elective office at a voluntary assembly that was held during school hours as part (^) of a school- sponsored educational program (^) in self-government, and that was at- tended by approximately 600 students, many of (^) whom were 14-year- olds. During the entire (^) speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit (^) sexual metaphor. Some of the students at the assembly hooted (^) and yelled during the speech, some mimicked the sexual activities alluded (^) to in the speech, and others appeared to be bewildered and embarrassed. Prior to delivering the speech, respondent discussed (^) it with several teachers, two of whom ad- vised him that it was (^) inappropriate and should not be given. The morn- ing after the assembly, (^) the Assistant Principal called respondent into her office and notified him that the school considered his (^) speech to have been a violation (^) of the school's "disruptive-conduct rule," which prohibited conduct that substantially interfered with the educational process, (^) in- cluding the use of obscene, profane language or gestures. Respondent was given copies of teacher (^) reports of his conduct, and was given a chance to explain his conduct. After he admitted that he (^) deliberately used sexual innuendo in the speech, he was informed (^) that he would be suspended (^) for three days, and that his name would be removed from the list of (^) candidates for graduation speaker at the school's commencement exercises. Review of the disciplinary action through petitioner School District's grievance procedures resulted in affirmance of the discipline, but respondent was allowed to return to school after serving (^) only two days of his suspension. Respondent, by his father (also a respondent) as guardian (^) ad litem, then filed suit in Federal District Court, alleging a violation of his First Amendment right to freedom of speech (^) and seek- ing injunctive relief and damages under 42 U. S. C. § 1983. (^) The court held that the school's sanctions violated the First Amendment, that (^) the school's disruptive-conduct (^) rule was unconstitutionally vague and over- broad, and that the removal of respondent's (^) name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amend- ment. The court awarded respondent monetary relief (^) and enjoined the

OCTOBER TERM, 1985

Syllabus 478 U. S.

School District from (^) preventing him from speaking at the commence- ment ceremonies. The Court of Appeals affirmed. Held:

  1. The First Amendment did not prevent the (^) School District from dis- ciplining respondent for giving the offensively lewd and indecent speech at the assembly. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, distinguished. Under the First Amend- ment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a pub- lic school. It is a highly appropriate function (^) of public school education to prohibit the use of vulgar and offensive terms in public discourse. Nothing in the (^) Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language, FCC v. Pacifica Foundation, 438 U. S. 726, (^) as well as limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audi- ence may include children, Ginsberg v. New York, 390 U. S. 629. Peti- tioner School (^) District acted entirely within its permissible authority in imposing sanctions upon respondent in response to his offensively lewd and indecent speech, which had no claim to First Amendment protection. Pp. 680-686.
  2. There is no merit to respondent's contention that the circumstances of his suspension violated due process because he had no way of know- ing that the delivery of the speech would subject him to disciplinary sanctions. (^) Given the school's need to be able to impose disciplinary sanc- tions for a wide range of unanticipated conduct disruptive of the educa- tional process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. (^) The school disciplinary rule proscribing "obscene" language and the prespeech admonitions of teachers gave adequate warning to respondent that his lewd speech could subject him to sanctions. P. 686. 755 F. 2d 1356, reversed.

BURGER, C. J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., (^) filed an opinion concurring in the judgment, post, p. 687. BLACKMUN, J., con- curred in the result. MARSHALL, J., post, p. 690, and STEVENS, J., post, p. 691, filed dissenting opinions.

OCTOBER TERM, 1985

Opinion of the Court 478 U. S.

ferred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Two of Fraser's teachers, with whom he discussed the con- tents of his speech in advance, informed him that the speech was "inappropriate and that he probably should not deliver it," App. 30, and that his delivery of the speech might have "severe (^) consequences." (^) Id., (^) at 61. During Fraser's delivery of the speech, a school counselor observed the reaction of students to the speech. Some stu- dents hooted and yelled; some by gestures graphically simu- lated the sexual activities pointedly alluded to in respondent's speech. Other students appeared to be bewildered and em- barrassed by the speech. One teacher reported that on the day following the speech, she found (^) it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the class. Id., at 41-44. A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides: "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." The morning after the assembly, the Assistant Principal called Fraser into her office and notified him that the school considered his speech to have been a violation of this rule. Fraser was presented with copies of five letters submitted by teachers, describing his conduct at the assembly; he was given a chance to explain his conduct, and he admitted to hav- ing given the speech described and that he deliberately used sexual innuendo in the speech. Fraser was then informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. Fraser sought review of this disciplinary action through the School District's grievance procedures. The hearing of- ficer determined that the speech given by respondent was "indecent, lewd, and offensive to the modesty (^) and decency of

BETHEL SCHOOL DIST. NO. 403 v. FRASER

675 Opinion of the Court

many of the students and faculty in attendance at the (^) assem- bly." The (^) examiner determined that the speech fell within the ordinary (^) meaning of "obscene," as used in the disruptive- conduct (^) rule, and affirmed the discipline in its entirety. Fraser served two (^) days of his suspension, and was allowed to return to school on the (^) third day.

B

Respondent, by his father as guardian ad litem, then brought this action in the United States District Court (^) for the Western District of Washington. (^) Respondent alleged a violation of (^) his First Amendment right to freedom of speech and sought both injunctive relief and monetary damages under 42 U. S. C. § 1983. The District (^) Court held that the school's sanctions violated respondent's right (^) to freedom of speech under the (^) First Amendment to the United States Constitution, that (^) the school's disruptive-conduct rule is un- constitutionally vague and overbroad, and (^) that the removal of respondent's (^) name from the graduation speaker's list vio- lated the Due Process Clause (^) of the Fourteenth Amendment because (^) the disciplinary rule makes no mention of such re- moval as a possible sanction. The District Court awarded respondent $278 in damages, (^) $12,750 in litigation costs and attorney's fees, and enjoined the (^) School District from pre- venting respondent from speaking (^) at the commencement ceremonies. (^) Respondent, who had been elected graduation speaker by a write-in vote of his classmates, delivered (^) a speech at the (^) commencement ceremonies on June 8, 1983. The Court (^) of Appeals for the Ninth Circuit affirmed the judgment (^) of the District Court, 755 F. 2d 1356 (1985), holding that respondent's (^) speech was indistinguishable from the pro- test armband in Tinker v. Des (^) Moines Independent Commu- nity School Dist., 393 U. S. 503 (1969). The (^) court explicitly rejected (^) the School District's argument that the speech, un- like (^) the passive conduct of wearing a black armband, had (^) a disruptive effect on the educational process. (^) The Court of

BETHEL SCHOOL DIST. NO. 403 v. FRASER

675 Opinion of (^) the Court

It is against this background that we turn to (^) consider the level of First Amendment protection accorded to Fraser's ut- terances and actions before an official high (^) school assembly attended by 600 students.

III The role and purpose of the American (^) public school system were well described by two historians, who stated: "[P]ublic education (^) must prepare pupils for citizenship in the Republic.

-.. It must inculcate the habits (^) and manners of civility as values in themselves conducive (^) to happiness and as indis- pensable to the practice of self-government in the community and the nation." C. (^) Beard & M. Beard, New Basic History of the United States 228 (1968). In Ambach v. Norwick, 441 U. S. 68, 76-77 (1979), we echoed the essence of this state- ment of the (^) objectives of public education as the "inculcat[ion of] fundamental (^) values necessary to the maintenance of a democratic political system." These fundamental values of "habits and manners of civil- ity" essential to a democratic (^) society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these "funda- mental values" must (^) also take into account consideration of the sensibilities of others, and, in (^) the case of a school, the sensibilities of fellow students. The undoubted freedom (^) to advocate unpopular and controversial (^) views in schools and classrooms must be balanced against the society's counter- vailing interest in teaching (^) students the boundaries of so- cially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences. In 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. The Manual of Parliamentary

OCTOBER TERM, 1985

Opinion of the Court 478 U. S.

Practice, drafted by Thomas Jefferson and adopted by the House of Representatives (^) to govern the proceedings in that body, prohibis the use of "impertinent" speech during debate and likewise provides that "[n]o person (^) is to use indecent language (^) against the proceedings of the House." Jefferson's Manual of Parliamentary Practice § (^) § 359, 360, re- printed (^) in Manual and Rules of House of Representatives, H. R. Doc. No. 97-271, pp. 158-159 (1982); see id., at 111, n. a (Jefferson's Manual governs the House in all cases to which it applies). The Rules of Debate applicable in the Sen- ate likewise (^) provide that a Senator may be called to order for imputing improper motives to another Senator or for refer- ring offensively to any state. See Senate Procedure, S. (^) Doc. No. 97-2, Rule XIX, pp. 568-569, (^) 588-591 (1981). Senators have been censured for abusive language directed (^) at other Senators. See Senate (^) Election, Expulsion and Censure Cases from 1793 to 1972, S. Doc. No. 92-7, pp. 95-98 (1972) (Sens. McLaurin and Tillman); id., at 152-153 (Sen. McCar- thy). Can it be that what is proscribed in the halls of Con- gress is beyond (^) the reach of school officials to regulate? The First Amendment guarantees wide (^) freedom in matters of adult public discourse. A sharply (^) divided Court upheld the right to express an antidraft (^) viewpoint in a public place, albeit in terms highly offensive (^) to most citizens. See Cohen v. California, 403 U. S. 15 (1971). It does not follow, how- ever, that simply because the use of an offensive form of ex- pression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. In New Jersey (^) v. T. (^) L. 0., 469 U. S. 325, 340-342 (1985), we reaffirmed that

the constitutional rights of students in public school are not automatically coextensive (^) with the rights of adults in other settings. As cogently expressed by Judge Newman, "the First Amendment gives a high school (^) student the classroom right to wear Tinker's armband, (^) but not Cohen's jacket." Thomas v. Board of Education, Granville Central School

OCTOBER TERM, 1985

Opinion of the Court 478 U. S.

bewildered by the speech and the reaction of mimicry it provoked. This Court's First Amendment jurisprudence has acknowl- edged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. In Ginsberg v. New York, 390 U. S. 629 (1968), this Court upheld a New York statute banning the sale of sexually oriented (^) material to minors, even though the material in question (^) was entitled to First Amendment protection with respect to adults. And in addressing the question (^) whether the First Amendment places any limit on the (^) authority of public schools to remove books from a public school library, all Members of the Court, otherwise sharply divided, ac- knowledged that the school (^) board has the authority to re- move books that are vulgar. Board of Education v. Pico, 457 U. S. 853, 871-872 (1982) (plurality opinion); id., at 879-881 (BLACKMUN, J., concurring in part (^) and in judgment); id., at 918-920 (REHNQUIST, J., dissenting). These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect chil- dren-especially in a captive audience-from exposure to sexually explicit, (^) indecent, or lewd speech. We have also recognized an interest in protecting minors from exposure to vulgar and offensive spoken language. In FCC v. Pacifica Foundation, 438 U. S. 726 (1978), we dealt with the power of the Federal (^) Communications Commission to regulate a radio broadcast described as "indecent but not obscene." There the Court reviewed an administrative (^) con- demnation of the radio broadcast of a self-styled "humorist" who described (^) his own performance as being in "the words you couldn't say on the public, ah, (^) airwaves, um, the ones you definitely wouldn't say ever." Id., at 729; see also id., at 751-755 (Appendix to opinion of the Court). The Commis- sion concluded that "certain words depicted sexual and excre- tory activities in a patently offensive manner, [and] noted

BETHEL SCHOOL DIST. NO. 403 v. FRASER

675 Opinion of the Court

that they 'were broadcast at a time when children were un- doubtedly in the audience."' The Commission issued an order declaring that (^) the radio station was guilty of broadcast- ing indecent language in violation of 18 U. S. (^) C. § 1464. 438 U. S., at 732. The Court of Appeals set aside the Commis- sion's determination, and we reversed, (^) reinstating the Com- mission's citation of the station. We concluded that the broadcast was properly considered "obscene, indecent, or profane" within the meaning of the statute. (^) The plurality opinion went (^) on to reject the radio station's assertion of a First Amendment right to broadcast vulgarity:

"These words offend for the same reasons that obscen- ity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: '[S]uch (^) utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' Chaplinsky v. New Hampshire, 315 U. S., at 572." Id., at 746.

We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in (^) response to his offensively lewd and indecent speech. (^) Unlike the sanctions imposed on the students wear- ing armbands (^) in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amend- ment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audi- ence of teenage students. Accordingly, it (^) was perfectly ap- propriate for the school to disassociate itself to make the point to the pupils (^) that vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public

BETHEL SCHOOL DIST. NO. 403 v. FRASER

675 BRENNAN, J., concurring in judgment

The judgment of the Court of Appeals for the (^) Ninth Circuit is Reversed.

JUSTICE BLACKMUN concurs in the result.

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," "vul- gar," "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 re- spondent's speech-and all that need be said-is that in light of the discretion school officials have to teach high school stu- dents how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was

with the District Court's injunction. No part of the damages award was based upon the removal of Fraser's name from the list, since damages were based upon the loss of two days' schooling.

OCTOBER TERM, 1985

BRENNAN, J., concurring in judgment 478 U. S.

not unconstitutional for school officials to conclude, under the

circumstances of this case, that respondent's remarks ex- ceeded permissible limits. Thus, while I concur in the Court's judgment, I write separately to express my under- standing 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 680 (quoting Tinker v. Des Moines Independent

Community School^ Dist.,^^393 U.^ S.^ 503, 506^ (1969)).^ If re- spondent had given the same speech outside of the school environment, he could not have been penalized simply be- cause government officials considered his language to be in- appropriate, see Cohen v. California, 403 U. S. 15 (1971); the Court's opinion does not suggest otherwise.^1 Moreover, despite the Court's characterizations, the language respond- ent used is far removed from the very narrow class of "ob- scene" speech which the Court has held is not protected by the First Amendment. Ginsberg v. New York, 390 U. S. 629, 635 (1968); Roth v. United States, 354 U. S. 476, 485

(1957). It is true, however, that the State has interests in teaching high school students how to conduct civil and effec- tive public discourse and in avoiding disruption of educational school activities. Thus, the Court holds that under certain circumstances, high school students may properly be repri- manded for giving a speech at a high school assembly which

school officials conclude disrupted the school's educational

IIn the course of its opinion, the Court makes certain remarks concern- ing 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 in- appropriate and subject to sanctions." Ante, at 683. 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 pub- lic debate outside of the school environment.

OCTOBER TERM, 1985

MARSHALL, J., dissenting 478 U. S.

Amendment responsibility to insure that robust rhetoric... is not suppressed by prudish failures to distinguish the vigor- ous 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 address- ing a high school assembly.' Thus, I concur in the judgment reversing the decision of the Court of Appeals.

JUSTICE MARSHALL, dissenting.

I agree with the principles that JUSTICE BRENNAN sets out

in his opinion concurring in the judgment. I dissent from the Court's decision, however, because in my view the School District failed to demonstrate that respondent's remarks were indeed disruptive. The District Court and Court of Appeals conscientiously applied Tinker v. Des Moines Inde- pendent Community School Dist., 393 U. S. 503 (1969), and concluded (^) that the School District had not demonstrated any disruption (^) of the educational process. I recognize that the school administration must be given wide latitude to deter- mine what forms of conduct are inconsistent with the school's educational mission; nevertheless, where speech is involved, we may not unquestioningly accept a teacher's or adminis- trator's assertion that certain pure speech (^) interfered with education. Here the School District, (^) despite a clear oppor- tunity to do so, failed to bring in evidence sufficient to convince either (^) of the two lower courts that education at Bethel School was disrupted by respondent's speech. I therefore see no reason to disturb the Court of Appeals' judgment.

IRespondent served two days' suspension and had his name removed from the list of candidates for graduation speaker at the school's com- mencement 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 offi- cials exceeded the bounds of their disciplinary authority.

BETHEL SCHOOL DIST. NO. 403 v. FRASER

675 STEVENS, J., dissenting

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. Nev- ertheless, I assume that high school administrators may pro- hibit 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.' 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.

"Because every university's resources are limited, an educational insti- tution 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 am- ateur 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 cov- ered in the classroom. Judgments of this kind should be made by academi- cians, 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 (1981) (STEVENS, J., concur- ring 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.'" Consoli- dated Edison Co. v. Public Service Comm'n of N. Y., 447 U. S. 530, 544-545 (1980) (STEVENS, J., concurring in judgment).

BETHEL SCHOOL DIST. NO. 403 v. FRASER

675 STEVENS, J., dissenting

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 Con-

duct" rule published in the student handbook; (2) he was spe-

cifically 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 ac-

tivities or acts may lead to disciplinary action. Gener-

ally, 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 lan-

guage or gestures."' 755 F. 2d 1356, 1357, n. 1 (CA

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 Ap-

peals explained the basis for this conclusion:

"IT]he record now before us yields no evidence that

Fraser's use of a sexual innuendo in his speech materi-

ally interfered with activities at Bethel High School.

While the students' reaction to Fraser's speech may

fairly be characterized as boisterous, it was hardly dis-

OCTOBER TERM, 1985

STEVENS, J., dissenting 478 U. S.

ruptive 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 de- livered written statements to an assistant principal com- menting on Fraser's speech, none of them suggested that the speech disrupted the assembly or otherwise inter- fered 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 Dis- trict 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 ob- scene or profane language, there is no such language in re- spondent's speech. What the speech does contain is a sexual metaphor that may unquestionably be offensive to some lis- teners in some settings. But if an impartial judge puts his

IThe Court's reliance on the school's authority to prohibit "unantici- pated conduct disruptive of the educational process," ante, at 686, is mis- placed. The findings of the District Court, which were upheld by the Court of Appeals, established that the speech was not "disruptive." De- parting from our normal practice concerning factual findings, the Court's decision rests on "utterly unproven, subjective impressions of some hypo- thetical students." Bender v. Williamsport Area School Dist., 475 U. S., at 553 (BURGER, C. J., dissenting).