755 F.2d 1356 (9th Cir. 1985), 83-3987, Fraser v. Bethel School Dist. No. 403

Docket Nº:83-3987, 83-4142.
Citation:755 F.2d 1356
Party Name:Matthew N. FRASER, a minor, and E.L. Fraser, as his Guardian Ad Litem, Plaintiffs-Appellees, v. BETHEL SCHOOL DISTRICT NO. 403, Christy B. Ingle; David C. Rich; J. Bruce Alexander; and Gerald E. Hosman, Defendants-Appellants.
Case Date:March 04, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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755 F.2d 1356 (9th Cir. 1985)

Matthew N. FRASER, a minor, and E.L. Fraser, as his Guardian

Ad Litem, Plaintiffs-Appellees,


BETHEL SCHOOL DISTRICT NO. 403, Christy B. Ingle; David C.

Rich; J. Bruce Alexander; and Gerald E. Hosman,


Nos. 83-3987, 83-4142.

United States Court of Appeals, Ninth Circuit

March 4, 1985

Argued and Submitted March 7, 1984.

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Jeffrey T. Haley, Simburg, Ketter, Haley, Sheppard & Purdy, Seattle, Wash., for plaintiffs-appellees.

William A. Coats, Clifford Foster, Jr., Kane, Vandeberg, Hartinger & Walker, Tacoma, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, GOODWIN and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

Bethel School District appeals a judgment for declaratory and injunctive relief, damages, and $12,750 costs and attorney's fees in this civil rights action brought under 42 U.S.C. Sec. 1983 by a student who claimed that the district had abridged his freedom of speech as protected by the First and Fourteenth Amendments. We affirm.


On April 26, 1983, appellee Matthew N. Fraser, then a seventeen-year-old senior at Bethel High School in Tacoma, Washington, nominated a friend and classmate for school office at a student-run assembly called for that purpose. The following is the entire text of Fraser's nominating speech:

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 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.

So vote for Jeff for ASB vice-president--he'll never come between you and the best our high school can be.

The day after he delivered the speech, Fraser was asked to report to the assistant principal's office and to produce a copy of the text of his speech. At the meeting, Fraser was given notice that he was being charged with violating the school's disruptive conduct rule. 1 After he was given an opportunity to explain his conduct, he was suspended for three days. Fraser, who was a member of the Honor Society and the debate team and the recipient of the "Top Speaker" award in statewide debate championships for two consecutive years, was also informed that his name would be removed from a previously approved list of candidates on the ballot for graduation speaker. Even though his name was stricken from the ballot, he was elected a graduation speaker by his classmates on a write-in vote, receiving the second highest number of votes cast. The District, nevertheless, continued to deny him permission to speak.

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Fraser initiated a grievance of the disciplinary action by making a submission to the Superintendent of the Bethel School District. After the grievance was denied, Fraser, joined by his father as guardian ad litem, filed this civil rights action. After an evidentiary hearing at which the school principal, two assistant principals, several teachers and Fraser all testified, Judge Tanner issued a declaratory judgment that the School District violated Fraser's rights under the First and Fourteenth Amendments under the United States Constitution and the Civil Rights Act by subjecting him to a three-day suspension and removing his name from the list of candidates for the graduation speaker, and that the punishment imposed upon Fraser was null and void. Judge Tanner also enjoined the District from refusing to allow Fraser to participate in Bethel High School's commencement exercises as a graduation speaker and awarded Fraser $278 as damages and $12,750 as costs and attorney's fees. The District invokes our jurisdiction to hear its appeal under 28 U.S.C. Sec. 1291.

Before addressing the District's arguments on appeal, we will review a few basic principles of First Amendment jurisprudence. It is well established that high school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). It is also well established, however, that a student's First Amendment rights are not absolute; the limits of a student's right to express himself must be defined in light of the special characteristics of the school environment. Id. at 506, 89 S.Ct. at 736. As our Court said in Nicholson v. Board of Education, 682 F.2d 858 (9th Cir.1982), "In the high school setting, school officials and teachers must be accorded wide latitude over decisions affecting the manner in which they educate students." Id. at 863. The discretion of school authorities in managing school affairs is necessarily limited, however, by "the imperatives of the First Amendment." Board of Education, Island Trees Union Free School District v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2807, 73 L.Ed.2d 435 (1982) (plurality opinion). Under Tinker and its progeny, "school officials must bear the burden of demonstrating 'a reasonable basis for interference with student speech, and ... courts will not rest content with officials' bare allegation that such a basis existed.' " Trachtman v. Anker, 563 F.2d 512, 517 (2d Cir.1977) quoting Eisner v. Stamford Board of Education, 440 F.2d 803, 810 (2d Cir.1971). See also, Scoville v. Board of Education, 425 F.2d 10, 13 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). Under our Constitution, it is the role of the judicial branch of government to resolve First Amendment controversies between students and public school officials such as the one between Matthew Fraser and the Bethel School District. A celebrated case in point is West Virginia v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), where the Supreme Court was called upon to decide whether a public school student could be compelled to salute the flag. Ruling in favor of the student, the Court, speaking through Justice Jackson, said,

"The Fourteenth Amendment, as now applied to the states, protects the citizen against the state itself and all of its creatures--Boards of Education not excepted. These have, of course, important delicate and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights."

Id. at 637, 63 S.Ct. at 1185.

We must address three basic arguments made by the District in support of its claim on appeal that the disciplinary action did not abridge Fraser's constitutional rights: (1) The District may discipline Fraser because the nominating speech had a disruptive effect on the educational process of the school; (2) the District's interest in maintaining a level of civility at the school justified its disciplinary action against Fraser for using language which school officials consider to be indecent; and (3) the District

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may discipline Fraser for using language considered to be objectionable because the speech was made at a school-sponsored function and was an extension of the school program. We will consider each argument in turn. 2


We agree with the District that the First Amendment does not prohibit school officials from disciplining a student who materially disrupts the educational process. As the Supreme Court said in Tinker, student speech or conduct is "not immunized by the constitutional guarantee of freedom of speech" if it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." 393 U.S. at 513, 89 S.Ct. at 740.

Tinker involved three high school students who were suspended for continuing to wear black armbands as a symbolic protest against the war in Vietnam after being asked to remove them. The Supreme Court held that the suspension violated the students' First Amendment rights because the school district failed to establish that the black armbands had a disruptive effect on the operations of the school or that the school officials had reason to anticipate that the armbands would cause a disruption. The Tinker Court ruled that the students' constitutional right to protest the war by wearing black armbands could not be infringed because there were no "facts which might reasonably have led school authorities to forecast substantial disruption or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred." Id. at 514, 89 S.Ct. at 740.

Just as in Tinker, the Bethel School District has failed to carry its burden of demonstrating that Fraser's use of sexual innuendo in the nominating speech substantially disrupted or materially interfered in any way with the educational process. In support of its contention that the speech was disruptive, the District cites the testimony of Gary McCutcheon, a school counselor who testified that some students at the assembly reacted to Fraser's speech with "hooting and yelling." Appellant's Brief at 3. Mr. McCutcheon testified as follows:

Q: Let's first go with what did you hear from the student body?

A: Not too dissimilar to what Mrs. Hicks just reported, the students were pockets of high volume conversations, hooting, yelling, which is not atypical to a high school auditorium assembly and the auditory, the sounds were not too dissimilar to any auditorium sounds I have heard over the many assemblies I have been at Bethel High School.

Q: Were there physical activities as well?

A: I think of particular interest might be perhaps was something I hadn't seen before. I had seen...

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