Spring Term, 2013
Supreme Court of the United States
Bethel
Petitioner
V.
Fraser
Respondent
Filed by:
Kody Sun, Victor Dzenis
Counsel for the Petitioner
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Facts: A public high school student (hereafter respondent) delivered a speech nominating
a fellow student for a student elective office at a school assembly. The assembly was held
during school hours as part of a school-sponsored educational program in selfgovernment. The attendees, many of whom were 14-year-olds, comprised an audience of
around 600 students. Students were compelled to either attend the school assembly or
participate in study hall. During the entire speech, the respondent referred to his
candidate in an elaborate, graphic, and sexual metaphor. Some students hooted and
yelled, some even mimicked the sexual activities alluded to, and others appeared
embarrassed and bewildered. Prior to the school assembly speech, respondent discussed
the contents of his speech with several teachers, two of whom advised him that it was
inappropriate and should not be delivered. One teacher in particular intimated that severe
consequences might follow, should the respondent choose to deliver that speech. After
the speech, five teachers voiced their objections via letters to the Assistant Principal’s
office. One teacher reported that, during the following day, she found it necessary to
sacrifice time during a scheduled lesson in order to discuss the speech with the class.
Abiding by the guidelines of the schools “disruptive-conduct rule,” which prohibited
conduct that substantially interfered with the educational process––including the use of
obscene profane language or gestures––the Assistant Principal called respondent to her
office the next day. There, respondent openly admitted that he deliberately used sexual
innuendo in his speech. The disciplinary proceedings entailed a three-day suspension and
respondent’s name was removed from the speaker list at the school’s commencement
exercises. Respondent, with his father as guardian ad litem, then filed suit in Federal
District Court; the court held that the school violated the First Amendment. The Court of
Appeals affirmed.
The Law: The First Amendment – Free Speech Clause; The Fourteenth Amendment –
Due Process Clause
Standard: The telos of a public school education is to prepare students for good
citizenship, to promote societal values, and to participate civilly within our democratic
society. The public school aims to regulate vulgar, indecent speech within a public school
setting, in order to prevent disruption of the educational process. Vulgarity is not
conducive to teaching students the art of civil discourse in a democratic society.
Therefore, the school’s “disruptive conduct rule,” which prohibits conduct that
substantially interferes with the educational process––including the use of indecent,
profane language or gestures––is constitutionally permissible under the First and
Fourteenth Amendments, respectively.
Legal Question: Can the school regulate the indecent, vulgar speeches in a public school
setting? Council for the petitioner affirms YES.
Reasoning:
1. The telos of a public school education is to prepare students to become good
responsible citizens, to promote societal values, and to inculcate habits and
manner of civility essential to a democratic society.
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Fundamental values of “habits and manners of civility” must, surely,
include tolerance of divergent political and religious views, even when the
views expressed may be controversial. This, however, does not
automatically apply to vulgar political speeches. While respondent’s
speech was partly political in nature, the school has an overriding
educational imperative to inculcate values that teach civil ways to deliver
political speeches in public assembly. Even the most heated political
discourse in a democratic society requires consideration of the “personal
sensibilities of the other participants and audiences.”
Justice Murphy, in Chaplinsky v. New Hampshire, 315 U.S., 572 (1942),
conclusively wrote about the nature of vulgarity: “Such 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 may be derived from them is clearly
outweighed by the social interest in order and morality.” Though we
acknowledge the slight political nature within respondent’s speech, we
maintain that the school demonstrated a rational basis for aiming to restrict
vulgarity, which in itself serves little value.
The process of educating our youth for citizenship in public schools is not
confined to the physical classroom environment. It is contended that the
school assembly attendance was an extracurricular activity; the activity
was, on the contrary, integral to the educational process. The assembly
offered an invaluable lesson in the art of public discourse, and it hoped to
provide a civil experience of self-government. Furthermore, the facts state
that students could not simply leave and go home. The attendees of the
assembly were a “captive audience”: they were compelled to choose either
study hall or the assembly. Virtually all of the students ended up attending
the assembly.
The school’s interest in protecting other students from indecent expression
is compatible with the Court’s jurisprudence regarding First Amendment
limitations, which have previously protected minors from exposure to
sexually explicit, indecent, or lewd speech (FCC v. Pacifica Foundation
438 U.S. 726 (1978)). Accordingly, there are limitations on the otherwise
absolute interest of a speaker in reaching an unlimited audience where the
speech is sexually explicit, and the audience includes children (Ginsberg
v. New York 390 U.S. 629 (1968)).
2. A public school possesses the autonomy to regulate certain expressions
characterized by indecent, profane language that are not conducive to the
educational process.
 To fulfill the telos of a public school education, the Court should defer to
the authority of school officials and state localities. This case should be
left to the discretion of local authorities: States are situated in a much
better position to determine what is vulgar than a federal court located
thousands of miles away.
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Respondent misconstrues the relationship of a student to an educator: The
educator has authority over the student when properly exercised. The
argument regarding that respondent was “probably in a better position” to
determine whether his audience of contemporaries would be offended by
his sexual metaphor precludes the countervailing point that the school, on
the contrary, ought to the determining figure.
Note that Cohen v. California, 403 U.S. 15 (1971) upheld the right to
express an antidraft viewpoint in a public setting, albeit being in terms
highly offensive to most citizens. Cohen, unlike respondent, was an adult.
It does not follow that the same wide freedom automatically applies to
children in a public school. Accordingly, New Jersey v. T.L.O., 469 U.S.
325, 340-342 (1985) held that constitutional rights of students within a
public school setting are not automatically coextensive with the rights of
adults in other settings.
Judge Newman, in his concurring opinion for Thomas v. Board of
Education, Granville Central School [478 U.S. 675, 683], astutely wrote,
“The First Amendment gives a high school student the classroom right to
wear Tinker’s armband, but not Cohen’s jacket. Having already affirmed
the school’s authority in prohibiting the use of vulgar and offensive terms
in public discourse, the Court must hold that the school may discipline
students whom intentionally violate such prohibitions.
This case is distinguishable from previous “free expression” cases within
the public school setting: Tinker v. Des Moines 393 U.S. 503 (1969) held
that students who did not materially and substantially disrupt the
educational process could express political viewpoints. The facts of the
prior case show the school adopted the regulation––after catching wind of
the armband demonstration, and it was a clear case of viewpoint
discrimination. That is, the school banned the specific wearing of
armbands, threatening students with expulsion. Conversely, the
prohibitions on profanity here were not adopted to discriminate against
specific viewpoints, but rather against vulgar, indecent speech in general.
Public schools, as instruments of the State, properly determine that
tolerating lewd, indecent, or offensive speech contradicts the essential
lessons of civil, mature conduct. Speech that glorifies male sexuality, that
induces students to hoot and mimic the sexual acts in front of 14-year-old
girls, is surely disruptive to the educational process. The reactions elicited
by the speech wholly contradict the civic values the school hoped to
instill. Though the lower court concluded that the speech was not
disruptive, the school is in a better position to determine the disruptive
nature of the speech. Based upon the reactions from students and teachers,
the school had a rational basis for deeming respondent’s speech disruptive.
3. Respondent had sufficient reason to anticipate punitive consequences if he
delivered the speech. Accordingly, the argument suggesting respondent did
not receive fair notice, that the rule was vague, presupposes an unreasonably
high procedural standard that would be utterly impractical.
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Given the stated agreement of facts, the school did enough: it provided a
free student handbook detailing prohibitions; teachers underlined that risk;
and the school constructed a facially neutral rule. The disruptive conduct
rule was not aimed to suppress any viewpoints. It was formed to restrict
vulgarity in general, and therefore contains a reasonable-basis.
Respondent conversed with several teachers prior to delivering the speech.
He would not have met with them, if he were certain that no consequences
would follow. He must have been concerned about the repercussions. One
teacher said, “That speech is inappropriate, don’t give it.” Another teacher
(Mr. DeHart) commented, “Matt, that speech is inappropriate.” Mr.
DeHart also testified he intimated that severe consequences would follow,
if respondent continued with his course of action.
In response to contentions about the vagueness of the disciplinary rule, the
Court has recognized that “maintaining security and order in the schools
requires a certain degree of flexibility in school disciplinary procedures,
and [the Court] has respected the value of preserving the informality of the
student-teacher relationship.” Requiring teachers to mechanically recite
the disciplinary statutes of the school for every single case of
inappropriate conduct is wholly impractical. Respondent proposes the
establishment of an unreasonably high standard. Teachers are not lawyers,
and they should be treated as such.
Even within our Nation’s legislative halls, where some of the most
vigorous political debates occur between adults, there are rules prohibiting
the use of expressions offensive to other participants in the debate. The
Manual of Parliamentary [478 U.S. 675, 682] Practice, drafted by Thomas
Jefferson and adopted by the House of Representatives, prohibits 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.”
How could what is maintained in the halls of Congress conceivably be
beyond the reach of school officials to regulate? If even our Nation’s
prominent adult leaders must abide by certain prohibitions on profanity,
there can be no question that mere children, in a public school setting, are
subject to school rules that ban lewdness and vulgarity. The appropriate
conduct in Congress simply reinforces the argument that there is a proper
way to deliver political speeches.
Respectfully Submitted,
Kody Sun, Victor Dzenis
Counsel for Bethel
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