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Student’s Right to Make ‘Vulgar’ Speech Debated Before Court

By Alina Tugend — March 12, 1986 4 min read


A student’s right to use sexual innuendo in a speech at a school assembly should be protected under the First Amendment, a lawyer for a former high-school student told the U.S. Supreme Court last week.

Schools should not “tell students that they can experience politics, but then tell them they can’t give a speech because it might be distasteful,” Jeffrey T. Haley, the lawyer for Matthew Fraser of Tacoma, Wash., told the Justices during arguments last week in Bethel School District v. Froser (Case No. 84-1667)

But, countered William A. Coats, the lawyer for the Bethel school board, the speech was “crude and vulgar [and] inherently demeaning to a school setting.”

“It is important to look at the educational nature of the activity,” he said. “Schools teach societal values. such as morality and civility. The school had a duty to impress that this activity was inappropriate. The school district feels strongly that it had an obligation to respond.”

The case centered on a speech given by Mr. Fraser on behalf of a candidate for an office in student government. (See Education Week, Oct. 16,1984.)

The speech said in part, ''1 know a man who is firm. He’s firm in his pants; he’s firm in his shirt; his character is firm ... Jeff Kuhlman is a man who takes his point and pounds it in ... he doesn’t attack things in I spurts ... Jeff is a man who will go to the very end, even the climax, for each and every one of you.”

School officials suspended the student for three days for allegedly violating the school’s “disruptive conduct” code, which defines disruptive I conduct as that which “materially and substantially interferes with the education process.” They also removed his name from a list of students eligible to peak at graduation ceremonies.

A federal district judge, in a decision upheld by the U.S. Court of Appeals for the Ninth Circuit, ruled that there was insufficient evidence to support a finding that the student’s speech seriously disrupted his school’s educational program. The judge awarded Mr. Fraser legal fees and $278 in damages for the days that he missed school

‘Victorian Canons’

“In their zeal to impose on teenagers Victorian canons of taste ... the petitioners inadvertently would teach an ugly lesson-that those in power can suppress the expression of those with whom they disagree,” Mr. Haley wrote in his brief.

Mr. Haley argued before the Court that if students are voluntarily participating in an assembly, they can “adopt rules of conduct among themselves.” He noted that virtually all the students in the school were present at the assembly.

When questioned by the Justice, Mr. Haley agreed that statements made in a classroom could be more strictly regulated than those made in an optional school assembly.

“Sex is not a forbidden topic,” said Mr. Haley, noting that Shakespeare and other writers often used sexual metaphors. “Some students might I be offended, but that is not sufficient reason to prohibit speech.”

When asked by Associate Justice William H. Rehnquist if schools can place any limits on student speech, Mr. Haley said they could do so only when a student “disrupts the educational process,” which he said Mr. Fraser’s speech did not.

“This speech was not meant as an insult or to create divisiveness,” he added.

He also noted that the school could have disciplined Mr. Fraser by criticizing him or holding an assembly on the meaning of the First Amendment.

‘Special Relationship’

However, Mr. Coats told the Justices that to protect students who might be offended or embarrassed by the speech, the school had a duty to punish such conduct.

The lower court “failed to recognize the special relationship that exists between students and teachers,” he said.

Later, on the court steps, Mr. Coats added that “what is at stake is the school officials’ ability to regulate vulgar speech.”

“The First Amendment is not absolute,” he said. ''It has to be regulated with a degree of sensitivity to the audience.”

Mr. Fraser, who now attends the University of California at Berkeley, said after the arguments that even if he loses his case, “I’m glad I gave the speech and would do it again.”

The Court is expected to hand down its decision in the case by late spring.

Other Action

Acting in another case last week, the Justices declined to review a federal appeals court’s ruling that school districts may not fire teachers solely on the grounds that they have become divorced.

The case, Rose v. Littlejohn (No. 85-750), began in 1982, when the superintendent of the Calloway County, Ky., public schools informed Linda Littlejohn, an untenured elementary-school teacher, that her contract would not be renewed for the upcoming school year. The superintendent had told Ms. Littlejohn’s school principal and a county schoolboard member that his decision was based upon her divorce from her husband.

Ms. Littlejohn filed suit in federal district court, claiming that the action violated her federal rights to privacy and liberty under Section 1983 of the Civil Rights Act of 1871. The lower court dismissed her complaint, but a federal appeals court reversed that ruling, noting that “it is clear that among the decisions that an individual can make without unjustified government interference are personal decisions relating to marriage.”

Assistant Editor Tom Mirga contributed to this report.
A version of this article appeared in the March 12, 1986 edition of Education Week


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