School Challenges Ruling Upsetting Suspension Over Sexual Remarks : High Court to Test Student Free-Speech Rights

TACOMA, Wash. —  There was no mistaking the ominous tone of the announcement over the public address system at Bethel High School in the spring of 1983: “Matt Fraser, please come to the principal’s office--immediately.”

Fraser, a senior honor student and the state’s top-ranked debater, soon was headed down the hall for a confrontation with administrators over a speech laden with sexual innuendo he had made before 600 classmates at a student election assembly. He was promptly suspended for making an “indecent” speech that violated a school rule against disruptive conduct.

But Fraser, an aspiring law student, decided to make a federal case out of it--and won an appellate court ruling that will be reviewed Monday before the Supreme Court in a pivotal test of student free-speech rights against the authority of school officials to maintain order. The justices’ ruling, expected by this summer, could have a broad impact on the students, teachers and administrators in the nation’s 22,000 public secondary schools.

Broad Power Cited

States generally give school authorities broad power to establish rules and standards for student conduct, and some specifically allow disciplinary action for vulgar or profane language. In California, habitual use of such language is grounds for punishment.

In the past, the justices, noting that high school students do not shed free-speech rights “at the schoolhouse gate,” have upheld the students’ right to wear black armbands in an anti-war protest. But the court also has recognized that authorities must be permitted to promote moral values in the schools and that, in some instances, they can curtail conduct by students that would be fully permissible for adults.

The Reagan Administration and a wide-ranging coalition of school administrators have joined Bethel officials in asking the high court to overturn the appellate ruling and grant school authorities the same “reasonable” power to restrict indecent speech that the justices granted them last year to search students for weapons and other contraband.

But Fraser, backed by the American Civil Liberties Union and some teacher and student press groups, says that his speech was neither obscene, disrespectful nor disruptive and thus is protected by the First Amendment. A ruling for the school district, he says, could lead to curtailed student speech and press, teaching an “ugly lesson” of suppression instead of constitutional rights.

“I think it’s really important that the First Amendment actually be in existence in high school,” Fraser, now a student at UC Berkeley, said in an interview there. “You can’t expect students to learn about it if they’re not able to exercise it.

Test of Authority Backed

“I think it’s good for students to challenge authority to find out what the legal boundaries are. But in this case I was nowhere near passing the boundaries.”

An attorney for the school district, Clifford D. Foster Jr., says the school has a duty to regulate student speech to preserve a stable and civil environment for learning.

“We’re not a bunch of right-wing Neanderthals,” Foster said. “We’re not saying he can’t express an idea. The issue here is the way he expressed it. That’s the only power we’re asserting. He could have gone to a park and given the same speech and there’d be no problem. But a school assembly--that’s different.”

For Fraser, the controversy was born almost by accident. On short notice, he was asked to speak in behalf of Jeff Kuhlman, a nominee for student body vice president. He composed a speech filled with sexual metaphors and showed it to three teachers--two of whom recommended against giving it. Both sides agree that he was not specifically warned he would be suspended if he gave it.

Fraser went ahead with the speech, drawing hoots, hollers and applause. Some students were seen mimicking sexual gestures during the speech, and the next day one teacher reported that pupils seemed more interested in discussing the speech than in doing class work. Kuhlman, the candidate Fraser nominated, was elected to office.

School officials charged Fraser with violating the school’s rule against conduct that “materially and substantially interferes with the educational process.” He was suspended for three days and told he would not be eligible to be on a forthcoming ballot for graduation speaker.

Elected Class Speaker

Fraser made a quick telephone call to the ACLU and later, with his parents’ permission, filed a federal civil rights suit against the school district. Meanwhile, he received enough write-in votes to be elected graduation speaker but still was denied the right to speak by school officials.

At trial in June, 1983, U.S. District Judge Jack E. Tanner ruled that Fraser’s rights had been violated and awarded him the $278 he sought as damages--the equivalent of a teacher’s pay for the time he was suspended--and attorneys’ fees of $12,750. The judge also issued an injunction allowing him to speak at graduation.

Last year a federal appellate panel in San Francisco upheld the decision by a vote of 2 to 1, rejecting the district’s claim that it could restrict student speech it considered indecent.

“We fear that if school officials had the unbridled discretion to apply a standard as subjective and elusive as ‘indecency’ . . . it would increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools,” Judge William A. Norris wrote for the court.

The appeals court acknowledged that officials could exercise substantial control over the classroom but found that a “voluntary activity” like the election assembly amounted to an “open forum,” where the First Amendment protected Fraser from punishment.

Educational Activity

In their appeal to the Supreme Court (Bethel vs. Fraser, 84-1667), the school district’s attorneys contend that the assembly was not an open forum but an educational activity, where authorities had a duty to promote community standards of decency and civility. They also denied that the rule they enforced was vague and overly broad or that they should be required to provide students with specific written warnings of potential punishment.

The Justice Department, in a “friend of the court” brief supporting the district, contends that the appellate ruling erroneously bars school officials from punishing students for speech that is anything less than legally obscene or physically disruptive. The public schools, in their role of inculcating basic values, should be empowered to prohibit indecent speech just as they bar racial or religious slurs, the department says.

The district also is backed in a brief filed by the Pacific Legal Foundation and the National School Safety Center on behalf of several school administration groups and officials. They point to the justices’ decision last year holding that students’ right to privacy must give way to school officials’ power to make reasonable searches to maintain order. In this case, they say, students’ right of free speech must give way to reasonable limits to guard against disruption.

Speech Defended

Fraser’s attorney, Jeffrey T. Haley of Seattle, argues that the speech is not even indecent--let alone obscene--and that Fraser’s use of sexual metaphor in a student political assembly should not have been punished by school officials.

“Restrictions within the classroom are fine,” Haley said. “There’s nothing wrong with enforcing good grammar or requiring certain forms of address to teachers. But a voluntary student assembly is different. If students are to be punished for the kind of speech Matt made, they will get a very distorted view of free-speech rights. In our system, we can generally say what we want.”

The Student Press Law Center, citing the right of students to speak out against school administrators, backs Fraser in the case. So does the National Education Assn., which concludes that the speech presented no threat to teachers or administrators but was merely a non-disruptive expression of opinion on a subject he was fully entitled to discuss.

For his part, Fraser retains the suspicion that he was “singled out” for punishment by school authorities because he had criticized administrators in editorials in the student newspaper and in confrontations in student gatherings.

“They thought I was a troublemaker,” he said. “I think they were happy to finally have an opportunity to suspend me.”

Support, Protest

There was divided feeling at the high school over the incident. Following Fraser’s suspension, some students put up posters and placards in his support--some of them containing sexual references. But later, when as the result of a court order he gave the graduation address, some in the audience left in protest.

The theme of his graduation talk was the importance of standing up for one’s rights. But in Fraser’s view, his suspension had a “chilling effect,” as he puts it, on the willingness of students to speak out against authority.

“It’s too bad,” he said. But, he added with a smile: “They don’t recognize how much fun it can be.”