BETHEL SCHOOL DISTRICT NO. 403, ET AL., PETITIONERS V. MATTHEW N.
FRASER, A MINOR, AND E. L. FRASER, GUARDIAN AD LITEM

   No. 84-1667

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States as Amicus Curiae Supporting Petitioners

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
       School officials acted reasonably in suspending
       respondent
       A. This Court's decisions do not hold that school
          officials may only proscribe speech that causes
          physical disruption or is legally obscene
       B. The special role of public schools, which this
          Court has recognized, shows that school officials
          may prohibit indecent speech because they are
          charged with inculcating basic values
       C. High school officials may regulate students'
          speech if they do not suppress expression of a
          particular viewpoint
       D. The conception of free speech urged here is
          consistent with the government's position in Bender
          v. Williamsport Area School District
       E. The school district reasonably enforced its
          rule in this case
   Conclusion

                          QUESTION PRESENTED

   Whether school officials violated a student's First Amendment
rights by disciplining him for delivering an indecent speech at a
school assembly, in the absence of a showing that the speech caused a
substantial physical disruption.

                     INTEREST OF THE UNITED STATES

   This case raises important questions concerning the ability of
school authorities to maintain minimum standards of decency and
civility in public schools.  While education is primarily the
responsibility of state and local governments the federal government
provides substantial amounts of money to support programs in public
schools.  See, e.g., Education Amendments of 1978, 20 U.S.C. 2701 et
seq.; Department of Education Organization Act, 20 U.S.C. (& Supp. I)
3401 et seq.  Those expenditures will be more fruitful to the extent
that the recipient schools are able to maintain an effective
educational environment, and we believe that the Ninth Circuit's
decision in this case improperly interferes with school officials'
efforts to do so.

                               STATEMENT

   1. Respondent, while a senior at Bethel High School in Tacoma,
Washington, gave a brief nominating speech on behalf of another
student before an assembly of the student body.  The speech contained
sexual innuendo, but no profane words.  /1/ The sexual innuendo
provoked some hooting, and three students were observed simulating
sexual behavior as a result of the speech.  /2/ The next day, a home
economics teacher testified, her students were more interested in
discussing respondent's speech than in their classwork, so she devoted
approximately ten minutes to a discussion of the speech (Pet. App.
A16).

   A number of teachers complained to the administration about the
speech (Pet. App. B5), and respondent was called into the assistant
principal's office the day after he delivered the speech and asked to
explain his conduct.  At that meeting, respondent was informed that he
had violated the school's disruptive conduct rule, which states (id.
at B4-B5 (citation omitted)):  "'Conduct which materially and
substantially interferes with the educational process is prohibited
including the use of obscene, profane language or gestures.'"
Respondent was suspended for three days and his name was removed from
the list of candidates for speaking at the school's graduation
ceremony (id. at A6).  /3/

   2. Petitioner filed a grievance with the school district
challenging the school's decision to discipline him.  The hearing
officer found that respondent had delivered his speech in a class
prior to the assembly and that he had been advised by two teachers
prior to the assembly that it was inappropriate (J.A. 101).  The
hearing officer concluded that the speech was "obscene" within the
meaning of the disruptive conduct rule (id. at 104) because under that
rule "obscene" has its "common and ordinary meaning," which includes
language that is "indecent" (id. at 103).  The hearing officer also
concluded that a three-day suspension was warranted because respondent
had been warned that the speech was inappropriate but nevertheless
delivered it (id. at 104).  /4/

   Respondent then sued the school district under 42 U.S.C. 1983,
seeking injunctive relief and damages.  The district court ordered
that any punishment imposed on respondent was null and void and
enjoined the school officials from refusing to permit respondent to
speak at his graduation exercises.  The court based its order on its
findings that respondent's speech was protected by the First Amendment
and that the high school's disruptive conduct rule is
unconstitutionally vague and overbroad (Pet. App. B7-B8).  /5/ The
court subsequently awarded respondent $278 as damages and $12,750 as
costs and attorney's fees (Pet. App. C4).  /6/

   3. The Ninth Circuit affirmed (Pet. App. A1-A65).  The majority
first noted (Pet. App. A7-A8), quoting Tinker v. Des Moines
Independent Community School District, 393 U.S. 503, 506 (1969), that
students do not "shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate." The court also noted 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" (Pet. App. A7).
Furthermore, the court stated that "'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"'" (Pet. App. A8 (citation
omitted)).

   The court then rejected the School District's argument, based on
the statement in Tinker that student speech 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), that respondent's speech had
materially disrupted the educational process.  Reviewing the facts de
novo (Pet. App. A10), the court concluded that the speech had not had
such an effect.  /7/

   The court next rejected the school district's argument that,
although the speech was not obscene, /8/ it was indecent and
therefore, under FCC v. Pacifica Foundation, 438 U.S. 726 (1978),
subject to regulation.  The court found Pacifica inapplicable to this
case because that case involved broadcasting into homes /9/ where
young children could be exposed to the program in question, George
Carlin's "Filthy Words" monologue.  Accordingly, the court "decline(d)
* * * to give public school officials power to regulate the speech of
high school students they consider to be indecent" and held that "the
First Amendment prohibited the District from punishing (respondent)
for making a speech that school officials considered to be 'indecent'"
(Pet. App. A32 (footnote omitted)).  /10/

   The court also rejected the School District's argument that "school
officials may control the language used to convey ideas at
school-sponsored events" (Pet. App. A33 (footnote omitted)).  The
court agreed that school officials had great control over the
curriculum, but stressed that respondent's speech was not part of the
curriculum, which it construed narrowly to mean classroom work.  The
court concluded that, because the assembly "was a voluntary activity
in which students were invited to give their own speeches," it "was
clearly not part of the school curriculum" (id. at A34).  /11/ This,
in the court's view, made the assembly an "open forum" (id. at A41).
The court concluded that since respondent's speech "was neither
obscene nor disruptive, the First Amendment protects him from
punishment by school officials" (id. at A42).

   In a footnote, (Pet. App. A43 n.12), the court affirmed the
district court's ruling "that the school's misconduct rule is
constitutionally infirm, because on its face it permits a student to
be disciplined for using speech considered to be 'indecent' even when
engaged in an extracurricular activity."

   Judge Wright dissented (Pet. App. A44-A65).  He found respondent's
speech "crude and sexually suggestive" and argued that the majority
had usurped "the authority of school officials to maintain and enforce
minimum standards of decency in public schools" (id. at A44).  Because
schools "instill citizenship, discipline, and acceptable morals,"
Judge Wright noted, school authorities are entitled to "wide latitude"
in condemning unacceptable language (id. at A53-A55).  In his view,
the school officials were fully justified under Pacifica in
disciplining respondent, since his speech was inappropriate for a
school assembly.  Judge Wright would have held that "school
authorities may prohibit indecent and vulgar speech regardless of
whether it satisfies Tinker's 'substantial disruption' standard" (Pet.
App. A60).  /12/ Judge Wright also criticized the majority for its
"cursory affirmance of the district court's holding that Bethel High
School's disruptive conduct rule is unconstitutionally vague and
overbroad," arguing that "(s)chool district rules are not held to the
same due process standards for vagueness and overbreadth as criminal
statutes" (id. at A63).

                          SUMMARY OF ARGUMENT

   It is settled that students' speech is protected by the First
Amendment.  It is also settled, however, that students' First
Amendment rights must be interpreted in light of the special
characteristics of the school environment and that school officials
may interfere with students' speech if they have a reasonable basis
for doing so.  While the court of appeals stated that the special
characteristics of the school environment were relevant, it did not
adequately take those characteristics into account in concluding that
a student may deliver any speech at a school assembly so long as the
speech is not physically disruptive or legally obscene.  Contrary to
the court of appeals' analysis, this Court's decision in Tinker v. Des
Moines Independent Community School District, 393 U.S. 503 (1969),
does not limit school officials to prohibiting only speech that has a
physically disruptive effect.

   Proper analysis of the school environment in accordance with this
Court's prior decisions leads to the conclusion that school officials
have a reasonable basis for prohibiting the use of indecent language
at school assemblies.  Public schools have long been viewed as a means
of inculcating basic values, including standards of civility and
decency in speech.  The authority of school officials to condemn
indecent speech should not be less than their authority to condemn the
use of racial epithets or religious slurs, particularly in connection
with regular school activities, or to require the use of standard
respectful forms of address in the classroom.  The conclusion that
public school officials may reasonably prohibit indecent speech is
reinforced by the fact that high school students do not have the full
constitutional rights of adults, particularly in matters involving
sexually suggestive material.  Regulation of student speech in the
high school environment should be permitted if officials have a
reasonable basis for the regulation grounded in the maintenance of an
atmosphere of civility or the transmission of basic societal values,
so long as the regulations do not, as in Tinker, suppress student
expression of a particular political viewpoint.

   The school officials reasonably concluded in this case that
respondent's speech was indecent and that it violated the school's
disruptive conduct rule.  That rule, according to its plain meaning,
prohibits indecent speech.  School authorities have interpreted it
that way, and it is their interpretation that controls.  Since school
officials may prohibit indecent speech, the rule is not
constitutionally infirm.  Nor was it improperly applied in this case.
School authorities acted well within the scope of their discretion in
determining that respondent violated the rule by delivering his speech
to the assembled student body.  Contrary to the court of appeals'
conclusion, that assembly, while not a formal part of the curriculum,
was not an open forum over which school officials had no control.
Rather, students were assembled for the limited purpose of listening
to speeches regarding the associated student body, an organization
which, under state law, is regulated by local school officials.
Students should not have to listen to indecent speech at such an
assembly any more than they should have to endure racial epithets or
religious slurs.

                               ARGUMENT

      SCHOOL OFFICIALS ACTED REASONABLY IN SUSPENDING RESPONDENT

 A. This Court's Decisions Do Not Hold That School Officials May Only
Proscribe Speech That Causes Physical Disruption Or Is Legally Obscene

   Although the Ninth Circuit correctly recognized certain basic
principles that must govern application of the First Amendment in a
school setting, it improperly adopted a rigid rule of decision that is
neither compelled nor supported by this Court's decisions.  The court
of appeals held that school authorities cannot punish a high school
student's speech unless it is obscene within the meaning of Miller v.
California, 413 U.S. 15 (1974), or creates a physical disruption (Pet.
App. A42).  The court below relied primarily on Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969), and FCC v.
Pacifica Foundation, 438 U.S. 726 (1978), to support this holding.
However, these cases in particular, and this Court's decisions in
general, do not support the Ninth Circuit's basis for decision.

   1. It is common ground that students "do not shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate" (Tinker, 393 U.S. at 506).  It is also
well-established, as the court of appeals noted (Pet. App. A7), that
those rights "must be construed 'in light of the special
characteristics of the school environment.'" Board of Education v.
Pico, 457 U.S. 853, 868 (1982) (plurality opinion), quoting Tinker,
393 U.S. at 506.  The court of appeals also recognized, citing Eisner
v. Stamford Board of Education, 440 F.2d 803, 810 (2d Cir. 1971), that
school officials must demonstrate a "reasonable basis" for
interference with student speech (Pet. App. A8), and that "'school
officials and teachers must be accorded wide latitude over decisions
affecting the manner in which they educate students'" (Pet. App. A7,
quoting Nicholson v. Board of Education, 682 F.2d 858, 863 (9th Cir.
1982)).  If the Ninth Circuit had applied a standard based on these
principles it is unlikely that we would have quarreled with its
decision.  Such a standard acknowledges that students have First
Amendment rights while also permitting school officials to promulgate
and enforce "rules against conduct that would be perfectly permissible
if undertaken by an adult." New Jersey v. T.L.O., No. 83-712 (Jan. 15,
1985), slip op. 13.

   While the court of appeals stated that analysis of the special
characteristics of the school environment is required, it did not in
fact evaluate those characteristics.  Rather than giving weight to
school officials' conclusions as to what rules are reasonable in the
school environment, the court applied the sort of heightened scrutiny
that is appropriate for review of government regulation of adult
speech in a public forum.  Nothing in this Court's decisions, however,
bars school officials from promulgating and enforcing rules
prohibiting indecent speech, or otherwise applying reasonable
regulations to speech in the high school context, so long as the
regulation is not a means for suppressing student expression of a
particular political viewpoint.

   2. The essential error of the court of appeals was to view the
authority of school officials as being strictly limited to avoiding
physical disruption of classrooms.  The court of appeals interpreted
Tinker to require an actual threat of physical disruption before any
restriction may be imposed on a student's speech.  That is a
misreading of the Court's opinion.

   In Tinker the Court interpreted the school's actions as censoring
expression of a political viewpoint by banning the wearing of black
armbands to protest the Vietnam war.  The Court equated prohibition of
the armbands with a regulation "forbidding discussion of the Vietnam
conflict, or the expression by an student of opposition to it anywhere
on school property" (393 U.S. at 513).  It was relevant to the Court's
decision "that the school authorities did not purport to prohibit the
wearing of all symbols of political or controversial significance"
(id. at 510), and the Court concluded that "a particular symbol * * *
was singled out for prohibition" (id. at 510-511).  Thus the Court in
Tinker was confronted with a situation, not present on the facts of
this case, where school officials acted with the apparent purpose and
effect of eliminating one particular political viewpoint while
allowing similar expression of other viewpoints.  Indeed the Court's
opinion expressly indicated that it did not purport to deal with
situations involving school rules setting standards of decency and
civility:  "The problem posed by the present case does not relate to
regulation of the length of skirts or the type of clothing, to hair
style, or deportment" (id. at 507-508 (emphasis added)).

   Moroever, the Tinker Court did not impose on school officials a
standard as restrictive as that applied by the Ninth Circuit.  The
Court stated in Tinker that a student may express opinions "if he does
so without 'materially and substantially interfer(ing) with the
requirements of appropriate discipline in the operation of the school'
and without colliding with the rights of others" (393 U.S. at 513
(brackets in original), quoting Burnside v. Byars, 363 F.2d 744, 749
(5th Cir. 1966)).  The Court stressed the question of whether the
speech in Tinker had disrupted classes because the district court in
that case had upheld the school district's ban on the wearing of such
armbands on the basis of a "fear of a disturbance from the wearing of
the armbands" (393 U.S. at 508).  It was in the context of addressing
the "fear of disturbance" argument that the Court stated that conduct
which "materially disrupts classwork or involves substantial disorder
or invasion of the rights of others" is not protected by the First
Amendment (id. at 513).  But nothing in the Court's decision implies
that school officials may only enforce rules proscribing actual
disruption of classroom activities or that they cannot enforce rules
establishing reasonable standards of civility and decency.

   In finding a "material disruption" standard to be the exclusive
standard for judging school officials' interference with student
speech, the court of appeals held that "the rationales of Pacifica
have no applicability" (Pet. App. A29).  To be sure, the facts of
Pacifica are distinguishable.  As the court of appeals stressed, it
involved broadcasting into homes where young children would be exposed
to the indecent, but not obscene, broadcast in question.  However,
while attendance at a school assembly is in some ways different than
sitting in "'the sanctuary of the home'" (Cohen v. California, 403
U.S. 15, 21 (1971) (citation omitted)), it is also true that the radio
broadcast in Pacifica could be shut out by the listener, who would
lose only the opportunity to hear the broadcast.  If a student
absented himself from the assembly where respondent recited his
speech, in contrast, the student would lose the value of participation
in an important student function (see pages 25-27, infra).  In
addition, while it is true, as the court of appeals stated, that high
school students are not "impressionable young children" but are
instead "young adults" (Pet. App. A29), high school students are not
fully adult either.  Recognizing that Pacifica presented a somewhat
different factual context is not the same as concluding that it has no
applicability to this case.  Its relevance lies in its recognition
that in some cases, particularly those involving minors, it is
appropriate to regulate speech that is indecent but not obscene (see
438 U.S. at 732;  id. at 756 (Powell, J., concurring in part and in
judgment)).

   Thus, contrary to the court of appeals's decision, Tinker and
Pacifica do not mandate its conclusion (Pet. App. A42) that school
officials may only prohibit speech that is legally obscene or
physically disruptive.  In Tinker, the Court determined that a
material disruption of classroom activities would not be protected by
the First Amendment, but it did not hold that school officials are
barred from regulating speech in the absence of a physical disruption
when the regulation does not prohibit expression of a particular
viewpoint.  Similarly, in Pacifica the Court held that indecent speech
could be regulated under the facts of that case, but it did not hold
that indecent language could never be prohibited in other cases.  The
court of appeals erred by not considering whether the special
characteristics of the school environment that were not relevant in
Tinker or addressed in Pacifica permit reasonable regulation of
indecent student speech.

 B. The Special Role Of Public Schools, Which This Court Has
Recognized, Shows That School Officials May Prohibit Indecent Speech
Because They Are Charged With Inculcating Basic Values

   This Court recently stated in New Jersey v. T.L.O., supra, that
school officials may prohibit conduct that would be perfectly
permissible if undertaken by an adult if such regulation is
reasonable.  /13/ Proper analysis of the special characteristics of
the school environment leads to the conclusion that school officials
not only may prohibit speech that materially interferes with classroom
activities but also may prohibit indecent speech and preserve basic
standards of civility in the school environment.  As Judge Newman
stated (Thomas v. Board of Education, 607 F.2d 1043, 1057 (2d Cir.
1979) (concurring), cert. denied, 444 U.S. 1081 (1980), "(s)chool
authorities can regulate indecent language because its circulation on
school grounds undermines their responsibility to try to promote
standards of decency and civility among school children."

   1. An analysis of the special characteristics of the school
environment relating to the use of indecent language by students
begins with the understanding that public education in this country
has traditionally been viewed not only as a means of teaching the
skills needed to function in society, but also as a way of
supplementing the family's role in the transmission of the society's
basic values from one generation to the next.  See Diamond, The First
Amendment and Public Schools:  The Case Against Judicial Intervention,
59 Tex. L. Rev. 477, 496-505 (1981).  This concept of education as an
institution to inculcate basic values was current in the earliest days
of the Republic.  Thus one writer stated that "education * * * will be
immensely deficient, unless it be professedly extended to (students')
morality, as well as their literature." Dogget, A Discourse on
Education (1796), in Essays on Education in the Early Republic 151 (F.
Rudolph ed. 1965) (hereinafter cited as Essays).  Noah Webster
expressed a similar view:  "Education, in a great measure, forms the
moral characters of men, and morals are the basis of government.
Education, should therefore be the first care of a legislature * * *."
Webster, On the Education of Youth in America (1790) (footnote
omitted), in Essays 64.  Benjamin Rush, a signer of the Declaration of
Independence, wrote an essay on public schools offering the opinion
that "society owes a great deal of its order and happiness to the
deficiencies of parental government being supplied by those habits of
obedience and subordination which are contracted at schools." Rush, A
Plan for the Establishment of Public Schools and the Diffusion of
Knowledge in Pennsylvania;  to Which are Added Thoughts Upon the Mode
of Education, Proper in a Republic (1786), in Essays 16.

   Nineteenth Century reformers relied on the concept of education as
a means of inculcating social and moral values as one of the principal
arguments supporting the establishment of universal public elementary
education.  Horace Mann, extolling the importance of "moral education"
and the "reformatory and elevating influence" of properly administered
public schools, wrote that "the common school * * * may become the
most effective and benignant of all the forces of civilization." Mann,
Report of the Massachusetts Board of Education (1848), in An American
Primer 341, 343, 351 (D. Boorstin ed. 1966).  Mann and other
proponents of a public school system argued that education was a
proper expense for the entire society to bear since "public education
must prepare pupils for citizenship in the Republic * * *.  It must
inculcate the habits and manners of civility as values in themselves
conducive to happiness and as indispensable to the practice of
self-government in the community and the nation." C. Beard & M. Beard,
New Basic History of the United States 228 (rev. ed. 1968).  Horace
Mann's concept reflected the practice of the time:  "The average
schoolma'am of that day was no less concerned with molding character
than with molding mind, and to this purpose, too, the McGuffey
Readers, with their pious axioms of conduct and their moral tales,
contributed powerfully." 2 S. Morison & H. Commager, The Growth of the
American Republic 306 (4th rev. ed. 1950).

   That the public schools properly remain concerned with inculcating
moral values as well as with imparting knowledge has been recognized
by recent decisions of this Court.  Public schools serve to "awaken()
the child to cultural values" (Brown v. Board of Education, 347 U.S.
483, 493 (1954)) and to "preserv(e) * * * the values on which our
society rests." Ambach v. Norwick, 441 U.S. 68, 76 (1979).  The Court
recently agreed that "local school boards must be permitted 'to
establish and apply their curriculum in such a way as to transmit
community values,' and that 'there is a legitimate and substantial
community interest in promoting respect for authority and traditional
values be they social, moral, or political.'" Board of Education v.
Pico, 457 U.S. 853, 864 (1982) (plurality opinion) (citation omitted).
 This function of public schools is also recognized in the statutes of
the Washington State school system, which admonish public school
teachers "to impress on the minds of their pupils the principles of
morality, truth, justice, temperance, humanity and patriotism (and) to
teach them to avoid idleness, profanity and falsehood." Wash. Rev.
Code Ann. Section 28A.67.110 (1982).

   The point of this brief excursion into the history of public
education is that public schools bear a different relationship to
their students than any other level of government in our society bears
to adult citizens.  By focusing narrowly on the question whether
behavior actually disrupts classwork, and ignoring whether behavior
disrupts school officials' efforts to inculcate basic standards of
civility and decency, the court of appeals did not properly consider
the special characteristics of the school environment.  Indeed, even
assuming, as the court of appeals did, that only "disruptive" student
speech may be regulated, an understanding of the role of public
schools in our society shows that indecent speech disrupts the work of
the school.

   2. Another special characteristic of the school environment that
the court of appeals ignored is that, at the high school level, school
officials regulate the behavior of minors rather than adults.  While
children have constitutional rights, "the constitutional rights of
children cannot be equated with those of adults." Bellotti v. Baird,
443 U.S. 622, 634 (1979).  The special constitutional status of
children limits their First Amendment rights, particularly where
sexually suggestive material is involved.  Thus in Ginsberg v. New
York, 390 U.S. 629 (1968), the Court sustained a New York statute
forbidding the sale to minors of sexually related material that was
conceded not to be obscene and thus could not constitutionally have
been prohibited for sale to adults.  The Court "recognized that even
where there is an invasion of protected freedoms, 'the power of the
state to control the conduct of children reaches beyond the scope of
its authority over adults'" (id. at 638, quoting Prince v.
Massachusetts, 321 U.S. 158, 170 (1944)).  And in Pico, while the
Court determined that it was not clear why school officials had
removed certain books from a high school library (see 457 U.S. at 883
(White, J., concurring in judgment)), the Court assumed that school
officials properly could remove books if they did so because the books
were "pervasively vulgar" (id. at 871) (plurality opinion)).  Indeed,
the plurality noted that the committee charged with review of the
books in question "was instructed to make its recommendations based
upon criteria that appear on their face to be permissible -- the
books' 'educational suitability,' 'good taste,' 'relevance,' and
'appropriateness to age and grade level'" (id. at 873 (citation
omitted)).  /14/

   In other areas of constitutional analysis as well, this Court has
recognized that regulation of the conduct of minors in schools demands
special deference to school authorities.  As mentioned above, in New
Jersey v. T.L.O., supra, the Court molded the requirements of the
Fourth Amendment to fit the high school environment.  The Court's
crafting of procedural due process requirements for the school setting
also has proceeded with reference to the needs of school officials for
maintaining discipline.  In Goss v. Lopez, 419 U.S. 565 (1975), the
Court approached the question of what process is due a high school
student facing suspension mindful of the admonition that "'(j)udicial
interposition in the operation of the public school system of the
Nation raises problems requiring care and restraint. . . .  By and
large, public education in our Nation is committed to the control of
state and local authorities'" (id. at 578, quoting Epperson v.
Arkansas, 393 U.S. 97, 104 (1968)).  More specifically, the Court
sought to avoid over-formalizing the suspension process and creating
an adversary atmosphere in order to assure that suspension would not
grow "too costly as a regular disciplinary tool" and to preserve "its
effectiveness as part of the teaching process" (id. at 583).  /15/ In
short, the constitutional right to due process was defined in Goss, as
was the Fourth Amendment right in T.L.O., so as not to interfere with
the needs of discipline in the high school setting.

 C. High School Officials May Regulate Students' Speech If They Do Not
Suppress Expression Of A Particular Viewpoint

   School officials are justified in insisting that all communications
(whatever the content of their ideas) and interactions be conducted in
ways marked by mutual respect and civility.  Surely a student
nominating speech which used racial epithets or religious slurs should
be liable to discipline with or without the showing of the kind of
atmospheric reverberations which respondent's speech was shown to have
occasioned here.  Indeed, we submit that a ban on such slurs and
epithets in the more formal context of classroom discussion or even
the rough and tumble of an athletic contest would seem indispensable
to most school authorities and should be recognized as proper by this
Court.  Similarly, and more affirmatively, if a school insisted that
teachers be addressed as Mr. or Ms. and that some suitable form of
address be used towards students themselves during class discussion,
this too should be seen as a normal and constitutionally proper
exercise of the school's civilizing mission.

   The inculcation of attitudes of mutual respect between individuals,
between racial and ethnic groups, and between the sexes is not only a
valuable educational goal in itself, but also a precondition for the
kind of rational exchange of ideas which is at the heart of what the
First Amendment seeks to protect in the school context.  In this
broader perspective, sexually suggestive speech is not only contrary
to ideas of decency but may contribute to an atmosphere which some
students find demeaning or distracting, and thus an impediment to
their studies.  /16/ Indeed, it has become accepted in the courts of
appeals that an employer unlawfully discriminates against some of his
employees under Title VII if he creates a workplace in which highly
offensive sexual remarks are commonplace.  See, e.g., Katz v. Dole,
709 F.2d 251, 254-255 (4th Cir. 1983);  Bundy v. Jackson, 641 F.2d
934, 943-944 (D.C. Cir. 1981).  It would be remarkable if the kinds of
limits which an employer may be required to institute to maintain a
proper atmosphere in an adult workplace, school administrators were
prevented from enforcing in a high school.

   Thus, a proper understanding of the role of public schools and the
constitutional status of high school students requires that school
officials be permitted some regulation of speech based on its content.
 Regulation of student speech in the high school environment should be
permitted if officials have a reasonable basis for the regulation
grounded in the maintenance of an atmosphere of civility or the
transmission of basic societal values, so long as the regulations are
not used to suppress student expression of a particular political
viewpoint.

   Regulation on the basis of content is, of course, the exception
rather than the rule (see Pacifica, 438 U.S. at 761 & n.3 (Powell, J.,
concurring in part and in judgment)).  And, as the court of appeals
noted, respondent was punished for "the language and verbal imagery he
used" (Pet. App. A42), regulation which at least to some extent
affects the content of speech.  But as we have noted, and as the Court
recognized in Pacifica (438 at 744-748 (Stevens, J.);  id. at 757-759
(Powell, J., concurring in part and in judgment);  id. at 768 n.3
(Brennan, J., dissenting)), some degree of content-based regulation is
permissible with respect to indecent speech aimed at minors.  In this
respect, it is important to keep in mind that a prohibition on
indecent language does not restrict the "marketplace of ideas" to any
significant extent (see id. at 745-746 (Stevens, J.)).  Furthermore,
restrictions on the use of indecent language are "viewpoint neutral"
since most viewpoints can be expressed without the use of vulgar
language.  /17/ The only sense in which a restriction on the use of
indecent language at school is not viewpoint neutral is that the
restriction shows that school officials disapprove of the use of such
language.  But in our view school officials may reasonably conclude --
indeed, they ought to conclude -- that it is their duty to teach high
school students that indecent language is not an acceptable part of
civilized public dialogue.

   That school officials must be permitted to prohibit indecent speech
is seen most clearly by considering the effect of the Ninth Circuit's
ruling in cases involving speech that is not obscene under the
standards set out in Miller v. California, 413 U.S. 15, 24 (1973).
The "Filthy Words" monologue at issue in Pacifica of course did not
meet the Miller standards (see 438 U.S. at 756 (Powell, J.)).  Yet,
that monolgue (the text of which is set out in 438 U.S. at 751-755) is
obviously inappropriate for delivery at a school assembly.  Under the
Ninth Circuit's holding, however, a student could not be punished for
delivering such a speech to assembled high school students in the
absence of a more serious physical disturbance than the one that
accompanied and followed respondent's speech.  Similarly, since
Cohen's jacket was not legally obscene (see 403 U.S. at 20), any
student would be free to wear such a jacket in school, under the Ninth
Circuit's decision, as long as a physical disturbance did not result.
Such a result obviously impedes school authorities' proper efforts to
maintain standards of decency and civility.  A proper understanding of
the role of high schools leads to the conclusion, as Judge Newman
stated, that "the First Amendment gives a high school student the
classroom right to wear Tinker's armband, but not Cohen's jacket" (607
F.2d at 1057 (concurring)).

 D. The Conception Of Free Speech Urged Here Is Consistent With The
Government's Position In Bender v. Williamsport Area School District

   We recently argued, in Bender v. Willaimsport Area School District,
No. 84-773 (argued Oct. 12, 1985), that the Establishment Clause does
not prevent school officials from permitting a voluntary student
religious group from meeting on school property during an activities
period.  In that connection, we recognized that high school students
have free speech rights (U.S. Amicus Br. at 20-21).  We argued that
high school students are essentially no different than the college
students involved in Widmar v. Vincent, 454 U.S. 263 (1981), in terms
of their ability to understand that permission to meet did not amount
to endorsement of religion by school officials;  and that the Equal
Access Act, Pub. L. No. 98-377, Tit. VIII, 98 Stat. 1302 et seq.,
represents Congress' considered conclusion to that effect.  This
conclusion is wholly consistent with the position we urge here.

   First, our principal contention in Bender was that the
Establishment Clause does not require school administrators to
discriminate against religious speech in contexts where a wide variety
of forms of speech are permitted.  This case, of course, does not
involve the Establishment Clause.  Second, we argued in Bender that
the Equal Access Act precluded such discrimination where a secondary
school maintains a limited open forum under certain defined
circumstances.  The assembly involved in this case was not that type
of forum (see pages 25-27, infra).  Third, a ban on all religious
speech responds to concerns which are quite different from those which
might motivate a school to ban indecent speech or racial epithets.
The latter ban goes far more to tone and style than to content.
Finally, the principal argument confronted by petitioners in Bender
was the fear that they, unlike the college students in Widmar, would
not be able to discern the difference between official endorsement and
mere permission.  The Equal Access Act traverses that factual
assumption.  The fact that high school students are mature enough to
discern that schools are not officially endorsing religion when they
permit a voluntary student religious group to meet does not mean that
these students are not in need of the school's guidance in matters of
civility and decency.

   E. The School District Reasonably Enforced Its Rule In This Case

   The actions taken by the Bethel School District in this case were
reasonable.  First, its disruptive conduct rule prohibited the use of
indecent language, which, as we have shown, is permissible, and the
rule is not unconstitutional.  Second, school officials reasonably
applied the rule to punish respondent.

   1. The School District's rule prohibits "the use of obscene,
profane language or gestures." As the hearing officer concluded (J.A.
103), school officials intended this rule to be interpreted according
to the plain meaning of the words, not according to the definition of
"obscene" developed by this Court.  /18/ "Obscene" means "offensive to
modesty or decency;  indecent, lewd." Random House Dictionary of the
English Language 994 (1966).  Thus, the rule prohibits indecent
language.

   It is clear that the school officials' interpretation of the
meaning of the rule controls and that the rule is not open to
interpretation by the federal courts.  At this Court noted in Wood v.
Strickland, 420 U.S. 308, 326 (1975), 42 U.S.C. 1983 "does not extend
the right to relitigate in federal court * * * the proper construction
of school regulations." That conclusion was repeated in Board of
Education v. McCluskey, 458 U.S. 966, 970 (1982) (per curiam), where
the Court held that a court of appeals erred in determining, contrary
to the conclusion of school officials, that a school rule prohibiting
students from being under the influence of "drugs" on school property
was a proper basis for suspending a student who was drunk at school.
The Court held that it was up to the school board, not the federal
courts, to determine whether "drugs" included alcohol.  Therefore, the
school district's determination that "obscene" means "indecent" is not
open to question.  Furthermore, school officials determined that the
use of indecent language by itself is disruptive of the educational
process, by including the use of indecent language in its "disruptive
conduct" rule.  As we have shown, that conclusion is reasonable.

   The court of appeals in this case appeared to accept the school
district's interpretation of its rule as prohibiting the use of
indecent language, holding that "the school's misconduct rule is
constitutionally infirm, because on its face it permits a student to
be disciplined for using speech considered to be 'indecent'" (Pet.
App. A43 n.12).  It was on the basis of its conclusion that the First
Amendment barred the school district from prohibiting indecent speech
at a school assembly that the court of appeals determined that the
rule is unconstitutional.  There is no reason to invalidate the rule,
even under the court of appeals' approach, once it is understood that
school officials may prohibit the use of indecent language.

   2. Nor is there any basis for challenging the application of the
rule to respondent.  It is the function of school officials rather
than federal courts to determine what type of speech violates the
appropriate standard of decency.  Indeed, that kind of determination
is part of the ordinary daily business of classroom teachers as well
as school superintendents.  As noted above, this Court has "long
recognized that local school boards have broad discretion in the
management of school affairs" and that "federal courts should not
ordinarily 'intervene in the resolution of conflicts which arise in
the daily operation of school systems.'" Pico, 457 U.S. at 863-864
(1982) (plurality opinion)), quoting Epperson v. Arkansas, 393 U.S.
97, 104 (1968).  Whether respondent's speech violated the school's
disruptive conduct rule is a matter best left to school officials, who
are most familiar with the appropriate standard of decency to be
applied.  They determined that the speech was "indecent, lewd, and
offensive to the modesty and decency of many of the students and
faculty in attendance at the assembly" (J.A. 103).  Since that
conclusion is quite reasonable, there is no warrant for reevaluation
of the school officials' determination.

   The court of appeals was troubled (Pet. App. A30-A31) that
decisions of school authorities as to what constitutes indecent speech
will inevitably vary from one community to another.  However, in
concluding that the First Amendment precludes enforcement of community
standards of decency in the schools because other communities may have
different standards (ibid.), the court of appeals misunderstood the
nature of public schools.  This Court has recognized that "local
sharing of responsibility for public education" is a vital part of the
American tradition, allowing parents, through their local school
board, "(d)irect control over decisions vitally affecting the
education of (their) children." San Antonio Independent School
District v. Rodriguez, 411 U.S. 1, 49 (1973), quoting Wright v.
Council of Emporia, 407 U.S. 451, 469 (1972).  As the Court also
recognized, a consequence of local control is that "(e)ach locality is
free to tailor local programs to local needs" (411 U.S. at 50).  The
fact that, under this system, different schools may adopt different
standards of civility and decency is a sign of the strength and
vitality of the system;  it is not a reason to conclude that school
officials are confined to standards representing the lowest common
denominator.

   Finally, the court of appeals emphasized that respondent's speech
was delivered at a school assembly rather than in a classroom.  In the
court's view, the fact that the assembly was an "extra-curricular
activity" (Pet. App. A38) in the sense that it was not a classroom
activity is highly significant.  But the facts in the record, which
the court below reviewed de novo, do not support the court of appeals'
treatment of the assembly as something apart from the school's formal
activities and its characterization of the assembly as an open forum.

   While not a formal part of the curriculum, the assembly at which
respondent delivered his nominating speech was an exercise in which
the regular life of the school was formally implicated.  Under
Washington law, the associated student body is a "formal organization
of the students of the school formed with the approval of and
regulation by the board of directors of the school district." Wash.
Rev. Code Ann. Section 28A.58.115 (Supp. 1986).  Two characteristics
of the assembly at which Fraser spoke are clear from this statutory
authorization.

   First, the student government process is subject by statute to
regulation by the governing body of the school just as the school
curriculum is.  Thus, the statute confirms what common sense suggests.
 While school officials' authority to maintain standards of decency
may not extend beyond school property or school functions, their
authority clearly extends beyond individual classrooms to the hallways
and assembly rooms of their schools.

   Second, the Washington state statute creates a "formal organization
of the students." Thus the assembly was part of the regular, general
processes of the school in which students could expect to be able to
participate.  The court below made much of the fact that students who
did not wish to attend the assembly and be subject to the offense of
Fraser's remarks could instead attend a study hall.  But the court's
proposed solution has the defect of requiring students to forego the
opportunity to participate in a function that the school and
Washington state law have provided for their benefit.  Students
wishing to participate in the regular, general processes of the school
had to subject themselves to respondent's distasteful remarks.  It is
our position that a student should no more have to accept this as a
feature of his school activities than he should have to endure racial
epithets or religious slurs.

   The court of appeals' treatment of the school assembly as the
equivalent of an "open forum" highlights the court's willingness to
substitute its own judgment about how a school should function for
that of school administrators.  The court of appeals recognized that
the assembly was part of the educational process in that it gave
"students an opportunity to gain practical experience in the
democratic process" (Pet. App. A41).  Having recognized the didactic
function of the assembly, the court of appeals nonetheless insisted on
enforcing its view of how the assembly could be made a learning
experience for the students.  To the contrary, it follows from the
court's characterization of the function of the assembly that school
officials could properly insist on the maintenance of standards of
decency and civility, not that they were required to abdicate their
duty to teach such standards.  Indeed, school officials might conclude
that the opportunity to each appropriate standards of decency and
civility is greatest at assemblies and that, conversely, respondent's
ability to undermine the school's responsibility to inculcate such
values is greatest at an assembly of the entire student body.

   Thus, the assembly was not an "open forum," as the court of appeals
stated (Pet. App. A41), or even a "limited open forum" of the sort
described in the Equal Access Act, Pub. L. No. 98-377, Section 802(b),
98 Stat. 1302 (to be codified at 20 U.S.C. 4071(b));  pages 22-23,
supra.  The assembly was not open to different groups, but was
provided for the express purpose of permitting speeches by candidates
for the associated student body and by students nominating candidates.
 There is no basis for the court of appeals' treatment of the assembly
as beyond the ordinary control of school authorities over school
functions.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   CAROLYN B. KUHL

      Deputy Solicitor General

   CHRISTOPHER J. WRIGHT

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   ROBERT V. ZENER

      Attorneys

   DECEMBER 1985

   /1/ Respondent stated (Pet. App. A2-A3 (citation omitted)):

         "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 to the
      climax, for each and every one of you.

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

   /2/ A school counselor testified that he "had seen one student on
the side of the bleachers where (he) was sitting actually simulate
masturbation and two students on the opposite bleachers were
simulating the sexual intercourse movement with hips" (Pet. App. A13).

   /3/ Respondent nevertheless was elected to speak at graduation as a
write-in candidate (Pet. App. A5).

   /4/ The hearing officer's decision was based on a written record.
The officer noted that respondent was advised that the District would
provide an oral hearing if requested, but respondent did not request a
hearing.  J.A. 100.  Respondent does not claim that the procedures
followed by the District violated his right to due process.

   /5/ The district court also found that the suspension violated the
state administrative code and that the removal of respondent's name
from the list of candidates for graduation speaker violated due
process (Pet. App. B9).  We do not address the state law issue.  The
due process question is moot since respondent had been elected as a
write-in candidate, the district court enjoined the school district
from prohibiting him to speak, and he spoke without incident at the
graduation ceremony (Pet. App. A43 n.13).  The court of appeals
vacated the injunction prohibiting respondent from speaking at his
graduation as moot (Pet. App. A43).

   /6/ This case might be moot but for the damage award.

   /7/ The court noted that "(t)he administration had no difficulty in
maintaining order during the assembly and (respondent's) speech did
not delay the assembly program" (Pet. App. A15).  While the students'
reaction to respondent's speech "may fairly be characterized as
boisterous," the court concluded that it "was hardly disruptive of the
educational process" (Pet. App. A17).  Nor, in the view of the court
of appeals, did the ten minute discussion in the home economics class
the day after the speech amount to a material disruption (Pet. App.
A16-A17).

   /8/ The court noted (Pet. App. A23 n.5) that respondent's speech
could not be considered obscene under the standard of Miller v.
California, 413 U.S. 15, 24 (1973), so that it was not excluded from
the protection of the First Amendment under Roth v. United States, 354
U.S. 476 (1957), as the School District conceded.

   /9/ The court noted (Pet. App. A28 n.8) that, in Cohen v.
California, 403 U.S. 15 (1971), this Court had emphasized the
difference between the sanctuary of the home and public areas in
holding that a state could not criminally punish a person for wearing
a jacket bearing the words "Fuck the Draft" in a courthouse.

   /10/ The court added:  "We fear that if school officials had the
unbridled discretion to apply a standard as subjective and elusive as
'indecency' in controlling the speech of high school students, it
would increase the risk of cementing white, middleclass standards for
determining what is acceptable and proper speech and behavior in our
public schools" (Pet. App. A30).

   /11/ The court noted that attendance at the assembly was not
compulsory since students could choose to go to study hall instead
(Pet. App. A34).

   /12/ Judge Wright added that he thought that the majority took a
constrained view of what constitutes disruption (Pet. App. A60).

   /13/ In New Jersey v. T.L.O., supra, the Court considered the
Fourth Amendment rights of high school students in light of the
special characteristics of the school environment.  The Court
concluded that "(i)t is evident that the school setting requires some
easing of the restrictions to which searches by public authorities are
ordinarily subject" (slip op. 13).  In particular, the Court held that
school officials need not obtain a warrant before searching a student
and that searches of students need not be based on probable cause to
believe that the student had violated the law (id. at 13-15).
Therefore, a school official was justified in searching the purse of a
student suspected of smoking in the school lavatory in violation of a
school rule, even though smoking by adults is not illegal.

   /14/ The courts of appeals have recognized that school authorities
may restrict student's First Amendment rights in ways that would not
be permissible by government officials dealing with adults outside the
school context.  For example, in Seyfreid v. Walton, 668 F.2d 214, 220
(1981), the Third Circuit sustained a school superintendent's decision
to cancel a school play which he found to be "vulgar and inappropriate
because of sharp sexual overtones." Similarly, the Second Circuit
sustained a school's decision to prohibit the distribution by a
student newspaper of a questionnaire inquiring into students' sexual
habits.  Trachtman v. Anker, 563 F.2d 512 (1977), cert. denied 435
U.S. 925 (1978).

   /15/ In Goss the Court held that a high school student facing a
suspension for not more than ten days must be given oral or written
notice of the charges against him, an explanation of the evidence
school authorities have, and an opportunity to present his side of the
story (419 U.S. at 581).  No delay is required between notice of the
suspension and the student's opportunity to explain himself, and the
Court defined several situations in which notice and hearing before
the suspension may not be required (id. at 582).

   /16/ As Judge Wright observed in dissent in the court below,
evidence was introduced in this case to show that respondent's speech
was sexually harassing and demeaning to female students (Pet. App.
A62).

   /17/ We are not unmindful of Justice Harlan's warning in Cohen v.
California, supra, that "we cannot indulge the facile assumption that
one can forbid particular words without also running a substantial
risk of suppressing ideas in the process" (403 U.S. at 26).  While we
accept the force of this observation in a public forum context, it
certainly must be open to school officials to guide and even to
control students' choice of words.  To hold otherwise would undercut
not only the imposition of standards of decency and civility but even,
carried to extreme, an English teacher's efforts to require that the
rules of grammar be followed.

   /18/ In Miller v. California, 413 U.S. 15, 18-19 n.2 (1973), the
Court noted that its definition of "obscene" is different than the
dictionary meaning.