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Twenty-five years ago, a hit to student speech

BY GUEST OPINION | JULY 11, 2011 7:20 AM

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On July 7, 1986, the U.S. Supreme Court curtailed the free-speech rights of public-school students in Bethel School District No. 403 v. Fraser, ruling that public-school officials could punish a student for giving a speech that they considered vulgar and lewd before a school assembly.

The decision signaled a sea change in First Amendment law, because the court seemingly created a large exception to its seminal free-speech decision in Tinker v. Des Moines Independent Community School District. In Tinker, the court had ruled that public-school officials could restrict or punished student speech if they could show evidence that it would cause or had caused a substantial disruption of school activities.

Under the Tinker “substantial disruption” standard, Matthew Fraser should have won his free-speech battle with school officials at Bethel High School. Instead, Fraser inspired the wrath of school officials after he delivered a sex-laced speech nominating a fellow student for elective office at the school assembly of 600 students.

“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.”

For his brazenness, school officials suspended Fraser for several days. But his speech did not cause a substantial disruption. Some students giggled and snickered. A teacher took time to discuss the speech in the classroom. The incident did not, however, cause a breakdown of school discipline or other significant problems.

That is why Fraser prevailed before a federal district court in Washington and the 9th U.S. Circuit Court of Appeals. His punishment also is the probable reason that fellow students elected him as a speaker at graduation. Years ago, he told me in an interview that school officials made a free-speech martyr out of him.

Chief Justice Warren Burger and the majority of his colleagues saw the legal dispute differently. They said school officials needed more flexibility to establish control over students. In the last opinion he wrote on the court, Burger emphasized 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.”

Burger created a new standard to handle student speech considered to be vulgar, lewd, or plainly offensive.

Burger took pains to distinguish Fraser’s case from the Tinker precedent, writing there was a “marked distinction” between the political speech symbolized by the black peace armbands and Fraser’s sexual speech. But Burger conveniently ignored that Fraser was delivering a speech nominating a student to elective office.

Two justices — Thurgood Marshall and John Paul Stevens — dissented from the court’s ruling. Marshall, a consistent defender of free speech, wrote that “the School District failed to demonstrate that respondent’s remarks were indeed disruptive.”

Stevens emphasized that Fraser was denied due process because he was not given fair notice that he could be punished under a disruption rule for a speech that didn’t create a substantial disruption.
But Burger prevailed 25 years ago, writing an opinion that gave school officials greater control over student speech within school walls.

David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.


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