Fraser (p. 1523)

Fraser concerns “lewd, indecent [and] offensive” speech before a captive audience in a school assembly. (p. 1523) Court distinguishes Tinker’s political, anti-war, message. (P. 1523, 1525) But the "lewd" speech in this case was used as part of a speech nominating a candidate for office in student government. So is it sexual speech or political speech?

            Page 1524: “The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”  (Notice also the Court’s approval of governmental inculcation of values and attitudes). Id.

            If you read that statement broadly Tinker is reversed (armbands were deemed “inappropriate” in the classrooms). Narrowly – relates to speech that is part of the school curriculum or only applies to “lewd” and “vulgar” speech.

            But also notice that the Fraser Court emphasized that Mr. Fraser’s speech was disruptive (P. 1523) and “could well be seriously damaging to its less mature audience.”  (edited from casebook) And not a restriction of any political viewpoint.

                                    Page 1524 (plus some edited): “Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint.  The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school's basic educational mission.”

Suppose Fraser had given the same speech in the schoolyard during recess?  In other words, how important was it in Fraser that the speech was part of a school assembly? P. 1525 (Stevens)

See also Brennan’s concurrence at p. 1525.

            Notice the Court emphasizes the role of public schools in inculcating the “shared values” of society.  In a society that values freedom of thought and freedom of belief, is this an appropriate role for government?  

            Whose values are those to be inculcated into the hearts and minds of all our children? Are any values “shared” in today’s divided nation? Is this where school choice may have a role?