First Amendment topicsAbout the First Amendment
Matthew Fraser speaks out on 15-year-old Supreme Court free-speech decision

By David L. Hudson Jr.
First Amendment scholar

One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see below).

Matthew Fraser says the United States Supreme Court gutted students' First Amendment rights when they ruled against him 15 years ago in Bethel School District No. 403 v. Fraser.

In the decision, the court ruled 7-2 that Washington state high school officials could suspend Fraser for delivering a speech with sexual references before a student assembly at Bethel High School.

Fraser's speech nominated classmate Jeff Kuhlman for a student government office. The speech contained numerous sexual references. Excerpts from the speech include:

  • 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 is a man who will go to the very end — even the climax, for each and every one of you.

"I wrote the speech about an hour before the assembly," Fraser said. "One teacher told me it would 'raise some eyebrows.' But no teacher told me that it violated school policy.

"I knew it would cause some reaction, but I did not think it would merit me a suspension," says Fraser, who is now a debate coach at Stanford University.

Fraser decided to give the speech. The next day an assistant principal informed Fraser that he had violated a school conduct rule, which read: "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures."

School officials gave Fraser a three-day suspension but allowed him to return after two days. He sued in federal court, contending that the suspension violated his First Amendment rights.

Two lower courts sided with Fraser, finding that his speech did not cause a substantial disruption under the standard articulated by the United States Supreme Court in Tinker v. Des Moines Independent Community School District.

In Tinker, the high court ruled that Iowa school officials violated the First Amendment rights of several students when they suspended them for wearing black armbands to protest U.S. involvement in the Vietnam War.

Supreme Court decision
However, on appeal, the Supreme Court reversed and sided with the school officials by a 7-2 vote.

"Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse," Chief Justice Warren Burger wrote for the majority. "A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students."

Burger wrote that there was a "marked difference" between the political speech at issue in Tinker and the "sexual content" of Fraser's speech. He added that "the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings."

Justices Thurgood Marshall and John Paul Stevens dissented. Marshall wrote a short opinion, saying that the school officials failed to show that Fraser's speech was disruptive.

Stevens wrote a longer dissent, beginning with the words from Clark Gable in Gone with the Wind: "Frankly, my dear, I don't give a damn."

"When I was a high school student, the use of these words in a public forum shocked the Nation," he wrote. "Today Clark Gable's four-letter expletive is less offensive than it was then."

Stevens emphasized that none of Fraser's teachers who reviewed the speech before he delivered it told him that it would violate a school rule. Stevens wrote that "it seems highly unlikely that he [Fraser] would have decided to deliver the speech if he had known that it would result in his suspension."

Though he eventually lost the case in the courts, Fraser says the case won him great acclaim in his school. He was selected by his fellow students by write-in vote to give the school's graduation speech.

"The school officials martyred me," Fraser said. "There were football players in the school who made signs saying 'Stand firm for Matt.' The last student newspaper was like an ode to Matt Fraser."

However, Fraser still wishes the Supreme Court had ruled differently.

Reflections of attorneys who argued before Supreme Court
Jeffrey T. Haley handled the case for Matthew Fraser as a cooperating attorney with the American Civil Liberties Union of Washington.

He feared that when the Supreme Court granted review of the 9th Circuit's decision that his side could lose. "Looking back, I wish perhaps that I had asked the 9th Circuit not to rule so strongly in our favor," Haley said.

He believes that the Supreme Court missed an opportunity to teach young people about the First Amendment and the Bill of Rights.

"Because the purpose of school is education, it is important to teach students about our government and the Bill of Rights," he said. "I fear that we are incorrectly educating our youth about the First Amendment and the Bill of Rights. If a student's speech is not obscene before a student assembly, then I would draw the line in favor of allowing the student speech."

William Coats, who argued the case for the Bethel School district, felt more confident in his chances when the high court granted certiorari. "Of course, you know as an attorney that it is a real long shot to obtain certiorari from the Supreme Court," he said. "You also have to keep in mind that the Supreme Court had not taken a pure student First Amendment speech case since 1969 [Tinker]."

Coats, who still represents school districts, believed that the 9th Circuit decision was "out of bounds." "We were never looking for a test case," he said. "This case occurred because of one phone call. I got a call from a school official saying, 'We had a student give a lewd speech before a student assembly. Can we discipline him? I said yes."

Coats disagrees with the notion that the Supreme Court sent a wrong message to public school students about the First Amendment and the Bill of Rights. "School officials have the responsibility to maintain an atmosphere that is conducive to the school setting. Schools have to maintain order and control and school officials can teach students proper decorum in different settings."

Fraser's impression of Supreme Court's opinion
"It was a phenomenal experience," Fraser says of the legal process in his case. "I learned a lot of law and it was a reality check for me."

It was a "reality check," he said, because the experience made him think of the United States Supreme Court in a whole new light. "From their questions at oral argument it was obvious that they were not really well prepared," Fraser said. "The lack of depth of the questions was noticeable."

"The decision effectively overruled Tinker," Fraser said. "Tinker may still be good law de jure, but it has been de facto obliterated."

"When the Supreme Court took the case I was not sophisticated enough to know that they would probably overrule the decision," Fraser said.

He says that he actually learned of the outcome before the opinion was released. "I had a friend of mine who was buddies with one of the Supreme Court's law clerks," he said. "I basically had a leak. I learned a month or two before the release of the opinion that things did not go well for me."

Impact of the decision
The decision has had a large impact on student First Amendment rights. Kevin O'Shea, publisher of the monthly legal newsletter First Amendment Rights in Education, says that "Fraser represents the first major step away from Tinker."

O'Shea said there had been a split of authority in the lower courts over how to apply Fraser. Some lower courts have applied the decision to student expression that is somehow school-sponsored. Other courts apply the principles of Fraser to any student speech that is considered vulgar or lewd — such as a T-shirt with a vulgar message.

Coats says that the broader application of the Fraser case is appropriate. "Schools should be able to prohibit vulgar and lewd speech in a school speech. This type of speech is inherently disruptive. But certainly, speech before a student assembly should not resemble speech in a pool hall, tavern or even the boys' locker room."

Fraser says that there should be a distinction between speech in a classroom and speech in a student assembly. "There should be a heightened level of protection for speech in a student assembly. If there is any hour in the entire year that is entitled to the protections of the First Amendment, it should be when students give nominating speeches for political offices."

Haley, who is still "technically" a cooperating attorney with the ACLU, agrees that in the context of school-sponsored speech, student speech for government offices should receive the highest level of First Amendment protection.

O'Shea says that the case is "emblematic of the greater willingness of lower courts to carve out exceptions to Tinker" and started what he terms a "troubling trend of restricting student First Amendment rights."

Fraser agrees with this notion that the case that bears his name has led to a troubling trend in public schools. "Public schools are setting a general tone of authority and control," he said. "They are teaching students to obey authority without question. And in a democracy, that is a very dangerous thing to do."

"It is a façade that the courts protect student rights," Fraser says. "As a practical matter, school administrators do what they want to do."


Speechless in Texas

High school salutatorian's graduation speech on avoiding burnout, taking time for fun is banned by principal as inappropriate. 06.04.01

On 30-year anniversary, Tinker participants look back at landmark case
By David L. Hudson Jr. Attorney who argued case before U.S. Supreme Court says case probably would be decided differently today. 02.24.99

Teacher looks back on letter that led to firing — and Supreme Court victory
By David L. Hudson Jr. Marvin Pickering reflects on seminal U.S. Supreme Court case bearing his name that backed public employees’ free-speech rights. 07.20.01

Interviews with principals in Supreme Court First Amendment cases

Speaking out in school

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