dissenting:
The court holds today that school authorities are powerless to discipline a student who makes a crude and sexually suggestive speech during a school assembly. It further holds that the authorities had no choice but to allow the same student to address an audience of children, parents, and distinguished community members in the school commencement exercises.
I dissent because the majority improperly usurps the authority of school officials to maintain and enforce minimum standards of decency in public schools. The court ignores the “delicate accommodation” necessary to insure that First Amendment freedoms coexist with institutional needs. Thomas v. Board of Education, 607 F.2d 1043, 1049 (2d Cir.1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980), on remand, 505 F.Supp. 102 (N.D. N.Y.1981). Further, it misunderstands and misapplies Tinker’s “substantial disruption” standard in the context of indecent expression.
The facts are recounted in the majority’s opinion. I add a few details to bring the majority’s mistakes into sharper focus.
Fraser was a 17-year-old senior at Bethel High School when the incidents underlying this action occurred. The school is in Span-away, Washington, a suburban community close to Tacoma. The community also is home to Pacific Lutheran University, a small, private university. Bethel High School is the only senior high school within the jurisdiction of defendant Bethel School District No. 403. The events occurring there understandably engage the full attention of the local school board.
Fraser gave his speech during an assembly in the school auditorium. It was held during school hours and was attended by over 600 students and teachers. Attendance at the assembly was mandatory unless students preferred to study in the study hall. The assembly and the student elections associated with it were part of the official school curriculum, designed to teach rhetoric and leadership.
Fraser’s speech used deliberate sexual innuendo in an effort to shock and excite his audience. It received its intended response. Students reacted with hooting and yelling. One student was observed simulating masturbation. Others simulated intercourse. Teachers noted that some students were shocked and embarrassed.
The following day, several teachers complained to the principal that the speech was inappropriate in a school assembly. Several also complained that their classes were disrupted the day following the speech because of heated student reaction.
This court should begin with a presumption against judicial involvement in the schools. “[Cjourts should not ‘intervene in the resolution of conflicts which arise in the daily.operation of school systems’ unless ‘basic constitutional values’ are ‘directly and sharply implicate^]’ in those conflicts.” Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 868, 102 S.Ct. 2799, 2808, 73 L.Ed.2d 435 (1982) (quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968)). See also Nicholson v. Board of Education, 682 F.2d 858, 863 (9th Cir.1982).
Of course, neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Nevertheless, courts have largely recognized that schools are different from other public forums. Speech that would be protected on the street corner does not automatically deserve protection in the classroom or auditorium. Bender v. Williamsport Area School District, 741 F.2d 538, 560 (3rd Cir.1984) (free speech right of students dra*1367matically different than the right to communicate in a traditional public forum).
As one commentator notes, “[t]he school environment is unique due to its physically confining nature, the immaturity of its population, and the special demands and needs of the educational purpose.” Haskell, Student Expression in the Public Schools: Tinker Distinguished, 59 Geo.LJ. 37, 57-58 (1970). See also Diamond, The First Amendment and Public Schools: The Case Against Judicial Intervention, 59 Tex.L. Rev. 477, 496-510 (1981). The factors that make schools unique for First Amendment purposes are all relevant here. The majority erred in failing to address them.
The first difference is the physically confining nature of schools. The Supreme Court has noted on several occasions that government may protect a captive audience from being unwilling auditors of offensive speech, at least in those places that we consider sanctuaries. Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 748-49 & n. 27, 98 S.Ct. 3026, 3039-40 & n. 27, 57 L.Ed.2d 1073 (1978); id. at 759, 98 S.Ct. at 3045 (Powell, J., concurring); Rowan v. United States Post Office Dept., 397 U.S. 728, 736-38, 90 S.Ct. 1484, 1490-91, 25 L.Ed.2d 736 (1970). The captive audience problems were magnified here, because school rules required students to attend the assembly or study halls. Students had no ability to walk away from the offending speech. Cf. Erz-noznik v. Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975). Nor did they have any indication that speeches containing sexual innuendo would take place.
Second, it is constitutionally significant that Fraser’s speech was made by a minor to other minors. While children clearly have some First Amendment rights, these rights differ in important respects from the rights enjoyed by adults. See generally,Garvey, Children and the First Amendment, 57 Tex.L.Rev. 321 (1979). As the Supreme Court noted, “ ‘[t]he world of children is not strictly part of the adult realm of free expression. The factor of immaturity, and perhaps other considerations, impose different rules.’ ” Ginsberg v. New York, 390 U.S. 629, 638 n. 6, 88 S.Ct. 1274, 1280 n. 6, 20 L.Ed.2d 195 (1968) (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 938, 939 (1963)). At home, parents are allowed to impose considerable restraints on their children’s rights to “free expression.” At school, the school authorities stand in loco parentis to enforce minimum standards of expression. See New Jersey v. T.L.O., — U.S. -, 105 S.Ct. 733, 741, 83 L.Ed.2d 720 (1985) (reasonableness standard governs school searches).
Similarly, schools may act to protect the children from obscene or indecent language. The courts have consistently held that greater limits may be imposed on expression aimed at children than would be allowable for communication aimed at adults. F.C.C. v. Pacifica Foundation, 438 U.S. at 749, 98 S.Ct. at 3040; Ginsberg v. New York, 390 U.S. at 638-40, 88 S.Ct. at 1279-81. Here, Fraser’s audience was primarily composed of minors. The school authorities had a substantial interest in protecting them from expression which could be shocking, embarrassing or detrimental at their stage of development. The school authorities were in the better position to determine whether the speech was harmful to other minors. Here, they concluded that Fraser’s speech was disruptive and harmful. We should not lightly question that judgment.
Finally, schools perform a special function in our society. They are entrusted with the difficult task of educating children and preparing them for full participation in adult society. In addition to transmitting necessary information and techniques of learning to the students, we expect schools to instill citizenship, discipline, and acceptable morals. In short, we expect schools to inculcate society’s values and help children become fully adjusted adults. See Board of Education v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982) *1368(Brennan, J. for the plurality); Diamond, supra at 498-99.
As the Supreme Court recently noted, Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather they act in furtherance of publicly mandated educational and disciplinary policies.
New Jersey v. T.L.O., 105 S.Ct. at 741.
Given the special nature of the high school environment, school authorities have a right and a duty to condemn language that falls below the minimum standards of decency expected in the local community. “[Wjhether a school condemns or tolerates indecent language within its sphere of authority will have significance for the future of that school and of its students.” Thomas v. Board of Education, 607 F.2d at 1057 (Newman, J., concurring).
In determining where school authorities may draw the line [regarding obscenity, vulgarity and indecency], courts must consider not only the fact that teen-age children are involved, but also the fact that the school is a special-purpose environment existing under peculiar sociological conditions____ It follows that a substantial degree of social propriety is called for in the operation of an effective educational system. It might even be said ... that discouragement of the use of obscene or profane language is a function of the school.
Haskell, supra at 56 (emphasis added).
In addition to the important function of schools in transmitting our culture’s values, we must consider the tradition of judicial deference to the discretion of local school authorities in the management of school affairs. See generally, Board of Education v. Pico, 457 U.S. at 863-64, 102 S.Ct. at 2806-07; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16 (1973).
To the extent that schools are expected to transmit society’s values, local school boards are in the better position to determine what these values are. See Diamond, supra at 509. Specifically, the community should have great leeway to define for itself the standards of decency expected in its schools. See Haskell, supra at 58.
School officials have wide latitude to balance free speech rights against the school’s interest in avoiding endorsement of certain expression. Seyfried v. Walton, 668 F.2d 214, 216 (3rd Cir.1981) (officials may censor school play). The assembly at which Fraser spoke was conducted during school hours, on school property, and students were required to attend the assembly or a study hall. As a matter of state law, the “associated student body” election for which Fraser’s campaign speech was given was 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. § 28A.58.115. The school assembly, therefore, was a school district sponsored function that implied district endorsement of the students’ activities.
The majority assumes that indecent language in a school can be prohibited only if it is legally obscene or likely to cause a “substantial disruption” under Tinker. Nothing in Tinker, however, “suggests that school regulation of indecent language must satisfy the criterion of a predictable disruption.” Thomas v. Board of Education, 607 F.2d at 1055 (Newman, J., concurring). See also Haskell, supra at 49. (Tinker inapplicable to obscene and profane speech.)
Tinker concerned regulation of pure political speech. The speech there, black arm bands to protest the Vietnam war, concerned a political matter towards which we expect our schools to remain neutral. In that context, the Court held that the school could only regulate this expression if it could predict “substantial disruption” of the educational environment. Tinker, 393 U.S. at 514, 89 S.Ct. at 740.
This rationale is inapplicable to a school regulation which prescribes only the indecent manner in which an idea is expressed. Thomas v. Board of Education, 607 F.2d *1369at 1055-57 (Newman, J., concurring). The Supreme Court has indicated on several occasions that government may regulate the time and place where ideas are expressed in an indecent or offensive manner. In Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the Court held that a state could not permissibly convict an adult simply for using a four-letter word. It indicated, however, that indecent speech could be prohibited in certain times and places. Id. at 19, 22, 91 S.Ct. at 1785, 1787.
The Court extended this rationale in F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), when it held that the FCC could limit the broadcast of offensive language to times when children would be unlikely to be exposed to it. Justice Stevens, writing for the plurality, noted that government had less authority to regulate “a point of view” than to regulate “the way in which it is expressed.” Id. at 746 n. 22, 98 S.Ct. at 3038 n. 22. He stated:
A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.
Id. at 743 n. 18, 98 S.Ct. at 3037 n. 18.
The Pacifica plurality relied on a nuisance rationale to hold that the F.C.C. could regulate the time and context of offensive broadcasts. Id. at 750, 98 S.Ct. at 3041. It noted that indecent speech “ ‘may be merely the right thing in the wrong place, — like a pig in the parlor instead of the barnyard.’ ” Id. (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926)).
Finally, the Court made a similar distinction between ideas and the manner in which they are expressed in Board of Education v. Pico, 457 U.S. at 871, 102 S.Ct. at 2810. In Pico, the Court held that whether a school district could remove books from its library depends upon the motivation involved. It stated, “[i]f petitioners intended ... to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioner’s decision, then petitioners have exercised their discretion in violation of the Constitution.” Id. The Court noted, however, that it would be constitutional to remove books because they were “pervasively vulgar” or they were not educationally suitable. Id.; see also id. at 880, 102 S.Ct. at 2815 (Blackmun, J., concurring).
If indecent language may be regulated anywhere, it surely may be regulated in the schools. I would hold that school authorities may prohibit indecent and vulgar speech regardless of whether it satisfies Tinker’s “substantial disruption” standard.
Even if the Tinker standard applies, the majority errs in taking an overly constrained view of what constitutes “substantial disruption.” This standard is flexible, Karp v. Becken, 477 F.2d 171, 174 (9th Cir.1973), and should be viewed in light of the delicate environment necessary to sustain learning. Id. at 175. “[BJecause of the state’s interest in education, the level of disturbance to justify official intervention is relatively lower in a public school than it might be on a street corner.” Id.; see Thomas v. Board of Education, 607 F.2d at 1053 n. 18.
Courts should not be eager to substitute their judgment regarding what is disruptive for that of the school authorities. Substantial disruption to the educational environment may result from speech or conduct that appears harmless to the outside observer.
“[T]he proper functioning of the school is not, except at its gross extremes, an objectively ascertainable phenomenon.” Diamond, supra at 497. A speech which causes great distraction, excitement or embarrassment among the students may disrupt the educational process as greatly as one which results in fist-fights.
The sensitive nature of the learning process calls for great deference by courts to the judgment of teachers and administration. “[I]n the public school context, per*1370haps no one, but certainly not the judiciary, can readily ascertain the mental or emotional state that is necessary, appropriate, or desirable for learning to take place.” Id. at 486.
Here, the school authorities found that Fraser’s speech greatly impeded the daily business of education. They produced testimony substantiating their claim that Fraser’s speech was sexually harassing and demeaning to female students. They concluded that the speech was both disruptive and potentially harmful to the learning process. We should not be quick to second-guess that judgment.
I disagree further with the majority’s cursory affirmance of the district court’s holding that Bethel High School’s disruptive conduct rule is unconstitutionally vague and overbroad. School district rules are not held to the same due process standards for vagueness and overbreadth as criminal statutes. Black Coalition v. Portland School District No. 1, 484 F.2d 1040, 1044 (9th Cir.1973); Esteban v. Central Missouri State College, 415 F.2d 1077, 1087-89 (8th Cir.1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970).
Bethel High School’s disruptive conduct rule was drafted specifically for the school environment. “Given this ‘particular context,’ the ordinance gives ‘fair notice to those to whom [it] is directed.’ ” Grayned v. City of Rockford, 408 U.S. 104, 112, 92 S.Ct. 2294, 2301, 33 L.Ed.2d 222 (1972).
Because school conduct rules cannot be drawn with the same precision as criminal statutes, some discretion must be left to school officials to decide what actions should be sanctioned. Murray v. West Baton Rouge Parish School Board, 472 F.2d 438, 442 (5th Cir.1973).
As the Supreme Court recognized in New Jersey v. T.L.O., school disciplinary rules must be flexible to enable school officials to maintain an environment in which learning can take place.
[T]he preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult. ‘Events calling for discipline are frequent occurrences and sometimes require immediate, effective action.’ ... Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures____
105 S.Ct. at 742-43 (citations omitted).
The discretion accorded school officials is limited when the school’s disruptive conduct rule is used to infringe First Amendment rights. Hall v. Board of School Commissioners, 681 F.2d 965, 968 (5th Cir. 1982); Murray, 472 F.2d at 442. Here, however, Fraser’s speech was not constitutionally protected. This court should defer to the school board’s proper exercise of discretion.
Under the standards enunciated in Black Coalition, Bethel High School’s disruptive conduct rule is neither vague nor over-broad. I would reverse the declaratory judgment and the award of attorney’s fees and costs.