arm bands, which constituted symbolic speech, in violation of a school rule prohibiting arm bands. The Supreme Court held the political anti-war message of the black arm bands to be protected speech for which students could not be suspended. In Tinker, the school sought to suppress not the form of the message, but the message itself.
Under Tinker, a school must show that engaging in forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. Id. at 509, 89 S. Ct. at 738. A school may regulate conduct that materially disrupts classwork or involves substantial disorder or invasion of rights of others. Id. at 509, 89 S. Ct. at 738. The Tinker Court stated that the disruption must be more than hypothetical: there must be at least a reasonable forecast of disruption. Id. at 514, 89 S. Ct. at 740. The defendants dispute that Tinker reflects the current state of the law. Even if Tinker were the appropriate test, however, the school met the Tinker requirements.
The defendants argue that the Tinker standard of a reasonable forecast of material and substantial interference with discipline is no longer the only circumstance in which a school may regulate student expression. Defendants assert that schools may regulate a student's speech in its role as instructor of the boundaries of socially acceptable behavior. It seems clear that, when schools seek to regulate the form of the message rather than the message, they may do so. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986).
In Fraser, a fourteen-year-old public high school student delivered a speech in a school assembly. The language of the speech was an extended sexual metaphor, although no blatantly sexual words were used. The student received prior notice from teachers who reviewed the speech and found it inappropriate, but none of them suggested that it would violate a school disciplinary rule. After giving the speech in a school-sponsored assembly, the student was suspended for a few days. The Supreme Court found that the speech was not protected under the First Amendment.
The Court distinguished the sexually suggestive message in Fraser from the nondisruptive expression of a political viewpoint in Tinker. Id. at 680, 106 S. Ct. at 3163.
The Fraser Court enunciated a balancing test: the freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Id. at 681, 106 S. Ct. at 3163. Public school students have fewer rights in school than do adults in other settings. Id. at 682, 106 S. Ct. at 3159; see also Poling v. Murphy, 872 F.2d 757, 762 (6th Cir. 1989), cert. denied, 493 U.S. 1021, 110 S. Ct. 723, 107 L. Ed. 2d 742 (1990) ("Limitations on speech that would be unconstitutional outside the schoolhouse are not necessarily unconstitutional within it."); cf. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562, 567, 98 L. Ed. 2d 592 (Schools "need not tolerate student speech that is inconsistent with its 'basic educational miss ion, even though the government could not censor similar speech outside the school.") (citing Fraser). The Fraser Court found that "it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse." Id. at 683, 106 S. Ct. at 3164. "The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board." Id. at 683, 106 S. Ct. at 3164.
The Fraser Court upheld the student's suspension on the basis of the school's responsibility to teach students socially appropriate behavior and to disassociate the school from inappropriate behavior: "We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech." Id. at 685, 106 S. Ct. at 3165; see also id. at 682-83, 106 S. Ct. at 3164 (citing Thomas v. Board of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1057 (2d Cir. 1979), cert. denied, 444 U.S. 1081, 100 S. Ct. 1034, 62 L. Ed. 2d 765 (1980) (Newman, J., concurring)) (First Amendment "gives a high school student the classroom right to wear Tinker's armband but not Cohen's jacket," which bore the message "Fuck the Draft").
Speech need not be sexual to be prohibited by school officials; speech that is merely lewd, indecent, or offensive is subject to limitation. "The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech . . . ." Id. at 683, 106 S. Ct. at 3164; see also id. at 3169 (Steven, J., dissenting) (even if audience is not offended by speech, or speaker honestly believed speech was inoffensive, speaker say not have constitutional right to deliver it); Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986) (dismissal of college professor for using terms such as "bullshit," "hell," "damn," "Goddamn," and "sucks" in the classroom); Thomas, 607 F.2d 1043 (school authorities may regulate indecent language because its circulation on school grounds undermines the responsibility to promote standards of decency).
Even while disagreeing with the Fraser result, Justice Stevens, quoting from the movie "Gone with the Wind," wrote in his dissenting opinion:
"Frankly, my dear, I don't give a damn."
When I was a high school student, the use of those words in a public forum shocked the Nation. Today Clark Gable's four-letter expletive is less offensive than it was then. Nevertheless, I assume that high school administrators may prohibit the use of that word in classroom discussion and even in extracurricular activities that are sponsored by the school and held on school premises.
Id. at 691, 106 S. Ct. at 3168 (Stevens, J., dissenting). Schools thus may limit usage of the word "suck," which in today's vernacular is more offensive than "damn."
The Supreme Court has given great deference to school boards, as in Fraser. Recent cases have evidenced a concern for values and decency in addition to school order. This Court, too, believes that school boards, school administrators, principals, and teachers must be permitted to govern schools attended by children.
The school's authority to control the presentation of the lesson must remain unfettered. See Poling, 872 F.2d at 762 ("Local school officials . . . must obviously be accorded wide latitude in choosing which pedagogical values to emphasize, and in choosing the means through which those values are to be promoted."); Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971) ("In prescribing general conduct within the school, the school authorities must have a 'wide latitude of discretion, subject only to the restriction of reasonableness.'") (citation omitted); cf. Fraser, 478 U.S. at 683, 106 S. Ct. at 3165 (school board should determine whether manner of speech is inappropriate for classroom); id. at 3169 (Stevens, J., dissenting) ("The school--not the student--must prescribe the rules of conduct in an educational institution."); Tinker, 393 U.S. at 506, 511, 89 S. Ct. at 746 (Constitution does not compel school officials "to surrender control of the American public school system to public school students"). The federal courts, ill-suited as they are to second guess decisions of school authorities, should interfere only in the most stringent circumstances. See Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270, 21 L. Ed. 2d 228 (1968). This is not such a case.
The Court finds that the school administration's determination that the word "suck" in the context of Kimberly's shirt is lewd, vulgar, or offensive is not merely a "prudish failure to distinguish the vigorous from the vulgar," Thomas, 607 F.2d at 1057 (Newman, J., concurring), but rather is a permissible decision by the school to regulate middle school children's language and channel their expression into socially appropriate speech. The word "suck" does have sexual connotations. Even its meaning of "disapproval" likely evolved from its sexual meaning only as recently as the 1970s.
First Amendment rights must be applied "in light of the special characteristics of the school environment." Tinker, 393 U.S. at 506, 89 S. Ct. at 736. In this case, the Blair Middle School environment consists of sixth, seventh, and eighth graders aged eleven to fifteen. This child may have been mature for her twelve years, but other students of that age, or younger, may not be equally precocious. Teachers and administrators must have the authority to do what they reasonably believe is in the best interest of their educational responsibilities, as we cannot abandon our schools to the whims or proclivities of children. The Court finds that Blair Middle School officials had an interest in protecting their young students from exposure to vulgar and offensive language.
The Court holds that, even if defendants were held to the Tinker standard, the defendants demonstrated a reasonable forecast of disruption. Under either Tinker, a content-based case, or Fraser, which, like this case, is content-neutral, the defendants did not violate Kimberly's First Amendment rights by suspending her for refusing to change her shirt.
The Court FINDS in favor of the defendants on the First Amendment claim and on the due process claim. The Court GRANTS Judgment in favor of the defendants and DENIES plaintiff's requests for relief. The Clerk is DIRECTED to send a copy of this Order to counsel for plaintiff and defendants.
IT IS SO ORDERED.
Robert G. Doumar
UNITED STATES DISTRICT JUDGE
At Norfolk, Virginia
September 3, 1992