author: Justice O’Connor Justice Blackmun, Justice Brennan,

text:
    RANDALL et al. v. LOFTSGAARDEN et al.
    No. 85-519.
    Argued April 2, 1986
    Decided July 2, 1986

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 667. Brennan, J., filed a dissenting opinion, post, p. 670.

      Robert Arthur Brunig argued the cause for petitioners. With him on the brief were Terence M. Fruth and Ted S. Meikle.

      Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Acting Assistant Attorney General Olsen, Albert G. Lauber, Jr., Ann Belanger Durney, Teresa E. McLaughlin, Daniel L. Goelzer, Paul Gonson, Jacob H. Stillman, Richard A. Kirby, and Martha H. McNeely.

      John M. Friedman, Jr., argued the cause and filed a brief for respondents.

        Lowell E. Sachnoff and William Gleeson filed a brief for Hon Industries, Inc., as amicus curiae urging reversal.

        Edward Brodsky and Thomas H. Sear filed a brief for Envitex Realty Corp. as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

The question presented is whether the recovery available to a defrauded tax shelter investor, entitled under § 12(2) of the Securities Act of 1933 or § 10(b) of the Securities Exchange Act of 1934 to rescind the fraudulent transaction or obtain rescissory damages, must be reduced by any tax benefits the investor has received from the tax shelter investment.

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In 1973, petitioners purchased interests m Alotel Associates (Associates), a limited partnership organized by respondent B. J. Loftsgaarden to build and operate a motel in Rochester, Minnesota. Loftsgaarden was the president and sole shareholder of respondent Alotel, Inc. (Alotel), which, together with Loftsgaarden, was to be a general partner in the venture.

Loftsgaarden marketed this $3.5 million project as a “tax shelter,” which would result in “ ‘significantly greater returns for persons in relatively high income tax brackets.’ ” Austin v. Loftsgaarden, 675 F. 2d 168, 173 (CA8 1982) (Austin I). As a partnership, Associates would not be taxed as an entity. Rather, its taxable income and losses would pass through to the limited partners, who would then be entitled to claim their individual shares of the partnership’s deductible losses to the extent of their adjusted basis in their partnership interests. 26 U. S. C. § 704(d). Especially attractive from the high-income investor’s perspective was the fact that “in a real estate investment such as the one contemplated by Loftsgaarden, the limited partner’s basis is not restricted to the amount of his actual investment (the amount ‘at risk’); rather, it may be increased by the partner’s proportional share of any nonrecourse loans made to the partnership.” 675 F. 2d, at 173. See 26 U. S. C. § 465(c)(3)(D). Consequently, the individual limited partner may be able to claim deductible partnership losses in amounts greatly in excess of the funds invested, and offset those losses against other income.

The initial offering memorandum indicated that Associates would employ financing techniques designed to provide large and immediate tax savings to the limited partners: a non-recourse loan would finance the bulk of the project, and rapid depreciation methods would be used to throw off large initial losses. Nonetheless, the initial offering was unsuccessful, and Loftsgaarden revised the plan and the offering memorandum to propose that Associates would rent land instead of purchasing it, thereby incurring another deductible expense. Petitioners subscribed to the second offering, investing from $35,000 to $52,500 each. Associates soon began to experience financial difficulties, and in February 1975 Lofts-gaarden asked the limited partners to make additional loans to Associates; they complied, but initiated an investigation into the partnership. Associates eventually defaulted on its obligations, and in 1978 the motel was foreclosed on by its creditors.

Petitioners brought suit in the District Court in 1976, alleging securities fraud and raising federal claims under § 12(2) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U. S. C. § 77Z(2), § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j(b), and SEC Rule 10b-5, 17 CFR 240.10b-5 (1985), as well as pendent state law claims. The jury found that respondents had knowingly made material misrepresentations and omissions in the revised offering memorandum, and that petitioners had reasonably relied on these material misstatements, which caused their damages. Among other misstatements, respondents had mischaracter-ized the financing available, the terms of the land lease, and the manner and extent of their compensation for services rendered. These findings made respondents liable under § 10(b), Rule 10b-5, and state law. The District Court also accepted the jury’s advisory verdict that respondents were liable under §12(2) for knowingly making material misrepresentations and omissions in the offering memorandum which induced their purchases. App. to Pet. for Cert. E-l.

Finding that petitioners’ investments were worthless by the time they discovered the fraud in 1975, the District Court held that the remedy of rescission was proper under § 12(2), which provides that an investor harmed by prospectus fraud may sue “to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.” 15 U. S. C. § 771(2). Rescission was permissible, the court ruled, notwithstanding that petitioners had not made a tender of their securities to respondents until shortly before trial. App. to Pet. for Cert. E-15. Accordingly, the District Court entered judgment for petitioners in the amount of the consideration paid for the limited partnership units, together with prejudgment interest; it also noted that each of the counts found by the jury would independently support respondents’ liability, but that “each plaintiff is entitled only to a single recovery.” Id., at E-16. The District Court rejected respondents’ contention that petitioners’ recovery should be offset by tax benefits received, concluding that “[ajbsent [respondents’] fraud, which induced their purchases, [petitioners] would probably have made other investments which produced temporary tax savings, but without the total loss of their investment.” Id., at F-9 — F-10.

A panel of the Court of Appeals for the Eighth Circuit sustained respondents’ liability under § 12(2) and § 10(b), but reversed the rescissory award and remanded for a new trial on that issue. The panel rejected respondents’ claim that petitioners were not entitled to rescission under § 12(2) because they had made no tender of their partnership interests until shortly before trial, 675 F. 2d, at 179, agreeing with the District Court’s “decision to apply what was essentially a rescissory measure of damages in this case.” Id., at 181. The panel held, however, that the District Court had erred in refusing to reduce “the damage award” by an amount equal to any tax benefits received by petitioners “on account of the investment.” Ibid.

In the panel’s view, an “actual damages principle,” applicable both to § 12(2) and § 10(b), required that an award of rescission or of rescissory damages be “ ‘reduced by any value received as a result of the fraudulent transaction.’” Id., at 181 (quoting Garnatz v. Stifel, Nicolaus & Co., 559 F. 2d 1357, 1361 (CA8 1977), cert. denied, 435 U. S. 951 (1978)). The panel observed that the benefits anticipated from a successful real estate tax shelter typically include tax savings to the limited partner in the early years, followed by income in later years, and reasoned that “unlike a corporate shareholder, . . . even if the enterprise fails to become profitable, the limited partner clearly may have something of value because of the investment’s unique tax treatment.” 675 F. 2d, at 182. In light of “the value of the tax deductions generated by such an investment,” the panel held that “the strictly compensatory nature of damages awardable in private securities fraud actions requires that such value be taken into account in determining whether and to what extent damages were inflicted upon plaintiffs.” Id., at 183. Finally, the panel rejected petitioners’ objection that “because there are tax consequences to any investment one makes, evidence of those consequences will now figure in every securities fraud case,” and asserted that its holding was limited to “cases involving investments that are expressly marketed and sold as tax shelters.” Ibid.

On remand, the District Court held a bench trial on the issue of tax benefits, and calculated each petitioner’s damages as the purchase price of his partnership interest plus simple interest, minus net tax benefits. App. to Pet. for Cert. C-5. Both petitioners and respondents appealed from the District Court’s judgment, and, after a second panel ruled on various subsidiary issues, the Court of Appeals reconsidered the case en banc. Austin v. Loftsgaarden, 768 F. 2d 949 (CA8 1985) (Austin II).

Relying in part on the law of the case, and noting that the Second Circuit had reached a similar result in Salcer v. Envicon Equities Corp., 744 F. 2d 935 (1984), vacated and remanded, post, p. 1015, the Court of Appeals adhered to the Austin I panel’s holding that an award of rescission or of re-scissory damages to a defrauded tax shelter investor should be reduced by any tax benefits actually received. This offset, moreover, was required whether the award stemmed from liability under § 10(b) or § 12(2). 768 F. 2d, at 953-954. As to § 10(b), the Court of Appeals relied on § 28(a) of the 1934 Act, which provides that “no person permitted to maintain a suit for damages under the provisions of this chapter shall recover, through satisfaction of judgment in one or more actions, a total amount in excess of his actual damages on account of the act complained of.” 15 U. S. C. §78bb(a). As to § 12(2), the court acknowledged that “the words ‘actual damages’ do not appear in the 1933 Act,” but suggested that the rescission remedy provided by §12(2) had been, and should be, construed as

“substantially equivalent to the damages permitted under section 28(a). Cf. Affiliated Ute Citizens v. United States, 406 U. S. 128, 155 (1972). ... The goal of rescission under section 12(2) is to return the parties to the status quo ante, ‘and hence a plaintiff can recover no more than his or her “net economic loss,” ’ i. e., ‘actual damages.’” 768 F. 2d, at 954 (quoting Salcer, supra, at 940).

Although the Court of Appeals recognized that “tax benefits received” are not “a form of income in a strict accounting sense,” 768 F. 2d, at 955, it nonetheless concluded, in light of its interpretation of § 28(a) and of the purposes of the rescission remedy, that tax benefits are “income received” within the meaning of § 12(2). 768 F. 2d, at 954-955.

The Court of Appeals then proceeded to engage in a detailed analysis of the manner in which petitioners’ rescissory damages should be determined. The court ruled that prejudgment interest should not have been based on the total consideration paid by each petitioner, but rather on the amount by which each was “ ‘out-of-pocket’ during each year of the investment.” Id., at 958. The court then determined that under its theory the tax consequences flowing from petitioners’ recovery of damages, as well as the tax benefits themselves, should be taken into account in determining damages. Accordingly, it doubled the total damages award, including prejudgment interest, to reflect the fact that each petitioner was in the 50% income tax bracket. Id., at 960-961. The combined effect of the Austin II court’s several rulings was this: under the rescissory approach originally employed by the District Court, petitioners would have been entitled to total recoveries ranging from $64,610 to $96,385, App. to Pet. for Cert. B-l — B-2; under the Court of Appeals’ final ruling, petitioners could recover only amounts ranging from $506 to $7,666. 768 F. 2d, at 961.

Two judges dissented from the Court of Appeals’ adherence to the panel’s holding in Austin I. In their view, tax benefits could not plausibly be viewed as “income received” within the meaning of § 12(2), and the effect of allowing a tax benefit offset was to provide “a windfall to the defendant— the fraudulent party.” 768 F. 2d, at 963 (Lay, C. J., dissenting). We granted certiorari because of the question’s importance to the administration of the federal tax and securities laws, and because the Courts of Appeals are divided in their treatment of tax benefits for purposes of calculating damages in federal securities fraud litigation. 474 U. S. 978 (1985). See Burgess v. Premier Corp., 727 F. 2d 826, 838 (CA9 1984) (refusing to reduce damages by tax benefits received in an action under § 10(b)). We now reverse.

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Section 12(2) specifies the conduct that gives rise to liability for prospectus fraud and expressly creates a private right of action in favor of the defrauded investor, who “may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.” 15 U. S. C. §77((2). Thus, § 12(2) prescribes the remedy of rescission except where the plaintiff no longer owns the security. See Wigand v. Flo-Tek, Inc., 609 F. 2d 1028, 1035 (CA2 1979). Even in the latter situation, we may assume that a rescissory measure of damages will be employed; the plaintiff is entitled to a return of the consideration paid, reduced by the amount realized when he sold the security and by any “income received” on the security. See H. R. Rep. No. 85, 73d Cong., 1st Sess., 9 (1933) (under §12, the buyer can “sue for recovery of his purchase price, or for damages not exceeding such price”); L. Loss, Fundamentals of Securities Regulation 1020 (1983) (hereinafter Loss) (“[W]hen the plaintiff in §12 no longer owns the security, damages are to be measured so as to result in the substantial equivalent of rescission”).

Petitioners contend that §12(2)’s “income received” language clearly excludes tax benefits received pursuant to a tax shelter investment because tax benefits are not “a form of income in a strict accounting sense,” Austin II, 768 F. 2d, at 955 (footnote omitted), and are not taxed as such. Accordingly, petitioners argue that tax benefits cannot offset a re-scissory award under § 12(2).

Here, as in other contexts, the starting point in construing a statute is the language of the statute itself. E. g., Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 477 (1977). Moreover, “if the language of a provision of the securities laws is sufficiently clear in its context and not at odds with the legislative history, it is unnecessary ‘to examine the additional considerations of “policy” . . . that may have influenced the lawmakers in their formulation of the statute.’” Aaron v. SEC, 446 U. S. 680, 695 (1980) (quoting Ernst & Ernst v. Hochfelder, 425 U. S. 185, 214, n. 33 (1976)). Section 12(2), we think, speaks with the clarity necessary to invoke this “plain language” canon: § 12(2)’s offset for “income received” on the security does not encompass the tax benefits received by defrauded investors by virtue of their ownership of the security, because such benefits cannot, under any reasonable definition, be termed “income.”

The tax benefits attributable to ownership of a security initially take the form of tax deductions or tax credits. These have no value in themselves; the economic benefit to the investor — the true “tax benefit” — arises because the investor may offset tax deductions against income received from other sources or use tax credits to reduce the taxes otherwise payable on account of such income. Unlike payments in cash or property received by virtue of ownership of a security — such as distributions or dividends on stock, interest on bonds, or a limited partner’s distributive share of the partnership’s capital gains or profits —the “receipt” of tax deductions or credits is not itself a taxable event, for the investor has received no money or other “income” within the meaning of the Internal Revenue Code. See 26 U. S. C. § 61. Thus, we would require compelling evidence before imputing to Congress an intent to describe the tax benefits an investor derives from tax deductions or credits attributable to ownership of a security as “income received thereon.”

This Court’s decision in United Housing Foundation, Inc. v. Forman, 421 U. S. 837 (1975), lends additional support to our conclusion that the economic value of tax deductions and tax credits in the hands of a particular investor is not “income received” on a security for purposes of § 12(2). In Forman, the Court rejected a claim that shares in certain housing projects must be deemed to be “securities” because of “the deductibility for tax purposes of the portion of the monthly rental charge applied to interest on the mortgage,” which was said to constitute “an expectation of ‘income.’” Id., at 854-855. To the contrary, the Court found “no basis in law for the view that the payment of interest, with its consequent deductibility for tax purposes, constitutes income or profits.” Id., at 855. In this case, we reject the analogous suggestion that the tax deductions petitioners were entitled to take by virtue of their partnership interests “constitute] income or profits.” Ibid.

Respondents have produced no specific evidence from the sparse legislative history of § 12(2) to establish that Congress intended tax benefits to be treated as “income received.” Instead, respondents urge that we look to the nature of the equitable remedy of rescission, which they say is exclusively “an effort to restore the status quo ante.” Brief for Respondents 27. Under this interpretation of rescission, respondents maintain, “‘any person demanding the rescission of a contract to which he is a party must restore or offer to restore to the other party whatever he may have received under the contract in the way of money, property, or other consideration or benefit.’” Ibid, (quoting 2 H. Black, Rescission of Contracts and Cancellation of Written Instruments §617, p. 1417 (1916)). Petitioners’ tax benefits, respondents argue, constitute such “consideration or benefit.”

Generalities such as these — which come to us unsupported by any instance in which a common law court treated tax benefits as consideration or property that must be returned or offset against the plaintiff’s recovery in rescission — fall far short of the showing required to overcome the plain language, of § 12(2). Moreover, even at common law, it is quite likely that tax benefits would be ignored for purposes of a rescis-sory remedy. Under the “direct product” rule, the party seeking rescission was required to credit the party against whom rescission was sought only with gains that were the “direct product” of the property the plaintiff had acquired under the transaction to be rescinded: “The phrase ‘direct product’ means that which is derived from the ownership or possession of the property without the intervention of an independent transaction by the possessor.” Restatement of Restitution § 157, Comment b (1937). We agree with amici, the United States and the Securities and Exchange Commission, that tax benefits, because they accrue only if the tax deductions or credits the investment throws off are combined with income generated by the investor or taxes owed on such income, would in all likelihood not have been deemed a “direct product” of the security at common law. See Brief for United States and SEC as Amici Curiae 13. Cf. Cereal Byproducts Co. v. Hall, 16 Ill. App. 2d 79, 147 N. E. 2d 383, aff’d, 15 Ill. 2d 313,155 N. E. 2d 14 (1958) (refusing to reduce damages for an accountant’s negligence in not discovering an embezzlement of plaintiff by the amount of the tax benefits plaintiff received by virtue of the theft). Respondents offer no reason to think that in enacting § 12(2) Congress intended to curtail the investor’s recovery by relaxing the limit on offsets imposed by the “direct product” rule.

Respondents’ view of the purposes served by § 12(2)’s rescission remedy is likewise flawed. Certainly a restoration of the plaintiff to his position prior to the fraud is one goal that will generally be served by §12(2), as by common law rescission or restitution. But the 1933 Act is intended to do more than ensure that defrauded investors will be compensated: the Act also “aim[s] ... to prevent further exploitation of the public by the sale of unsound, fraudulent, and worthless securities through misrepresentation [and] to place adequate and true information before the investor.” S. Rep. No. 47, 73d Cong., 1st Sess., 1 (1933). See also United States v. Naftalin, 441 U. S. 768, 775-776 (1979). We may therefore infer that Congress chose a rescissory remedy when it enacted § 12(2) in order to deter prospectus fraud and encourage full disclosure as well as to make investors whole. Indeed, by enabling the victims of prospectus fraud to demand rescission upon tender of the security, Congress shifted the risk of an intervening decline in the value of the security to defendants, whether or not that decline was actually caused by the fraud. See Thompson, The Measure of Recovery under Rule 10b — 5: A Restitution Alternative to Tort Damages, 37 Vand. L. Rev. 349, 369 (1984) (hereinafter Thompson); Loss, at 1133. Thus, rescission adds an additional measure of deterrence as compared to a purely compensatory measure of damages.

We also reject, as did the Court of Appeals, 768 F. 2d, at 958, respondents’ alternative contention that tax benefits constitute “a return of, or a reduction in, ‘consideration.’” Brief for Respondents 29-30. There is no indication that Congress intended the word “consideration” in § 12(2) to mean anything other than what the context would suggest — the money or property given by the investor in exchange for the security. And, in view of the express offset for “income received,” we think any implicit offset for a return of consideration must be confined to the clear case in which such money or property is returned to the investor. Here, the consideration given by petitioners in exchange for their partnership interests took the form of money, not tax deductions, and the fact that petitioners received tax deductions from which they were able to derive tax benefits therefore cannot constitute a return of that consideration. Accordingly, we hold that § 12(2) does not authorize an offset of tax benefits received by a defrauded investor against the investor’s re-scissory recovery, either as “income received” or as a return of “consideration,” and that this is so whether or not the security in question is classified as a tax shelter.

H-1 1 — I

We now consider whether § 28(a) should alter our conclusion that § 12(2) does not authorize a reduction in the plaintiff’s recovery in the amount of tax benefits received, and whether § 28(a) requires such an offset when a rescissory measure of damages is applied to a plaintiff’s § 10(b) claim. Respondents suggest that § 12(2) and § 28(a) should be construed in pari materia, arguing that the Court of Appeals correctly determined that § 28(a) stands for a broad principle that recovery under the federal securities laws is strictly limited to the defrauded investor’s “actual damages,” and hence that anything of economic value received by the victim of fraud as a result of the investment must be used to reduce the victim’s recovery. This principle, they say, requires us to construe § 12(2)’s express offset for “income received” on the security as encompassing any tax benefits received by petitioners.

The Court of Appeals relied on Globus v. Law Research Service, Inc., 418 F. 2d 1276 (CA2 1969), cert. denied, 397 U. S. 913 (1970), which read § 17(a) of the 1933 Act in pari materia with § 28(a) insofar as the latter provision is deemed to bar punitive damages. See 768 F. 2d, at 954. Assuming, arguendo, that Globus was correctly decided, it is clearly distinguishable, for any private right of action under § 17(a) would be an implied one, and § 17(a) makes no reference to damages, whether punitive or compensatory. See 418 F. 2d, at 1283-1284. By contrast, Congress addressed the matter of prospectus fraud with considerable specificity in § 12(2), which not only antedates § 28(a), but was also left untouched by Congress when it passed the 1934 Act. See Loss, at 1024. We therefore decline to read § 28(a) as mandating a limit on the rescission remedy created by Congress in the 1933 Act by enactment of § 12(2). To hold otherwise would be to effect a partial repeal of § 12(2) by implication, and “ ‘[i]t is, of course, a cardinal principle of statutory construction that repeals by implication are not favored.’” Radzanower v. Touche Ross & Co., 426 U. S. 148, 154 (1976) (quoting United States v. United Continental Tuna Corp., 425 U. S. 164, 168 (1976)). There is no “irreconcilable conflict” here between the two Acts, nor is this a case in which “ ‘the later act covers the whole situation of the earlier one and is clearly intended as a substitute.’” 426 U. S., at 154, quoting Posadas v. National City Bank, 296 U. S. 497, 503 (1936). Cf. Herman & MacLean v. Huddleston, 459 U. S. 375, 384 (1983) (adopting a “cumulative construction of the remedies under the 1933 and 1934 Acts”).

The issue whether and under what circumstances rescission or a rescissory measure of -damages is available under § 10(b) is an unsettled one. In Affiliated Ute Citizens v. United States, 406 U. S. 128, 155 (1972), which involved violations of § 10(b) and Rule 10b-5 by a buyer of securities, this Court held that ordinarily “the correct measure of damages under § 28 of the Act, 15 U. S. C. § 78bb(a), is the difference between the fair value of all that the [plaintiff] received and the fair value of what he would have received had there been no fraudulent conduct.” Courts have also generally applied this “out-of-pocket” measure of damages in § 10(b) cases involving fraud by a seller of securities, see, e. g., Harris v. American Investment Co., 523 F. 2d 220, 225 (CA8 1975), cert. denied, 423 U. S. 1054 (1976); Thompson, at 365. But there is authority for allowing the § 10(b) plaintiff, at least in some circumstances, to choose between “undoing the bargain (when events since the transaction have not made rescission impossible) or holding the defendant to the bargain by requiring him to pay [out-of-pocket] damages.” Loss, at 1133. See, e. g., Blackie v. Barrack, 524 F. 2d 891, 909 (CA9 1975) (“While out of pocket loss is the ordinary standard in a 10b-5 suit, it is within the discretion of the district judge in appropriate circumstances to apply a rescissory measure”), cert. denied, 429 U. S. 816 (1976).

Respondents do not dispute that rescission or a rescissory measure of damages may sometimes be appropriate under § 10(b), nor do they dispute that in this case a rescissory recovery is appropriate on petitioners’ § 10(b) claims as well as on their § 12(2) claims. Instead, they contend that § 28(a) strictly limits any such rescissory recovery to the plaintiff’s net economic harm. We shall therefore assume, arguendo, that a rescissory recovery may sometimes be proper on a § 10(b) claim, and that this is such a case.

In enacting § 28(a), Congress did not specify what was meant by “actual damages.” It is appropriate, therefore, to look to “the state of the law at the time the legislation was enacted” for guidance in defining the scope of this limitation. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U. S. 353, 378 (1982). When § 28(a) was enacted § 12(2) stood as a conspicuous example of a-rescissory remedy, and we have found that Congress did not intend that a recovery in rescission under § 12(2) be reduced by tax benefits received. Accordingly, we think § 28(a) should not be read to compel a different result where rescissory damages are obtained under § 10(b).

Even apart from the analogy furnished by §12(2), this Court has never interpreted § 28(a) as imposing a rigid requirement that every recovery on an express or implied right of action under the 1934 Act must be limited to the net economic harm suffered by the plaintiff. To be sure, this Court has noted that “Section 28(a) of the 1934 Act. . . limits recovery in any private damages action brought under the 1934 Act to ‘actual damages,’” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 734 (1975), and Affiliated Ute Citizens clearly interpreted § 28(a) as governing the measures of damages that are permissible under § 10(b). 406 U. S., at 155. But the Court in Affiliated Ute Citizens also indicated that “where the defendant received more than the seller’s actual loss . . . damages are the amount of the defendant’s profit.” Ibid. This alternative standard aims at preventing the unjust enrichment of a fraudulent buyer, and it clearly does more than simply make the plaintiff whole for the economic loss proximately caused by the buyer’s fraud. Indeed, the accepted rationale underlying this alternative is simply that “[i]t is more appropriate to give the defrauded party the benefit even of windfalls than to let the fraudulent party keep them.” Janigan v. Taylor, 344 F. 2d 781, 786 (CA1), cert. denied, 382 U. S. 879 (1965). See also Falk v. Hoffman, 233 N. Y. 199, 135 N. E. 243 (1922) (Cardozo, J.). Thus, the mere fact that the receipt of tax benefits, plus a full recovery under a rescissory measure of damages, may place a § 10(b) plaintiff in a better position than he would have been in absent the fraud, does not establish that the flexible limits of § 28(a) have been exceeded.

In any case, respondents’ contention that plaintiffs will receive undeserved “windfalls” absent an offset for tax benefits is greatly overstated. Even if tax benefits could properly be characterized as a windfall — which we doubt — the tax laws will serve to reduce, although not necessarily to eliminate, the extent of plaintiffs’ net economic gain as compared to the status quo ante. We are told that the “tax benefit rule” will apply in cases of rescission, thus making the recovery taxable as ordinary income. See Hillsboro National Bank v. Commissioner, 460 U. S. 370 (1983); Brief for United States and SEC as Amici Curiae 25. Any residual gains to plaintiffs thus emerge more as a function of the operation of the Internal Revenue Code’s complex provisions than of an unduly generous damages standard for defrauded investors.

Respondents also overlook the fact that Congress’ aim in enacting the 1934 Act was not confined solely to compensating defrauded investors. Congress intended to deter fraud and manipulative practices in the securities markets, and to ensure full disclosure of information material to investment decisions. Affiliated Ute Citizens, supra, at 151; see also Herman & MacLean, 459 U. S., at 386-387. This deterrent purpose is ill served by a too rigid insistence on limiting plaintiffs to recovery of their “net economic loss.” Salcer, 744 F. 2d, at 940. The effect of allowing a tax benefit offset would often be substantially to insulate those who commit securities frauds from any appreciable liability to defrauded investors. The resulting diminution in the incentives for tax shelter promoters to comply with the federal securities laws would seriously impair the deterrent value of private rights of action, which, we have emphasized, “provide ‘a most effective weapon in the enforcement’ of the securities laws and are a ‘necessary supplement to Commission action.’” Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U. S. 299, 310 (1985) (quoting J. I. Case Co. v. Borak, 377 U. S. 426, 432 (1964)).

The Court of Appeals’ elaborate method for calculating damages and interest so as to offset tax benefits supplies an additional reason for rejecting its tax benefit offset rule. We need not inquire whether evidence concerning tax benefits is ordinarily so speculative as to be beyond the jury’s province. Cf. Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490 (1980). It is enough that there are formidable difficulties in predicting the ultimate treatment of the investor’s claimed tax benefits, whether or not an audit has commenced, and that the burdens associated with reconstruction of the investor’s tax history for purposes of calculating interest are substantial. We think that § 28(a) cannot fairly be read to require such a full-scale inquiry into a defrauded investor’s dealings with the tax collector lest the investor escape with anything more than his “net economic loss.”

Respondents’ sole remaining contention is that a rule requiring the offset of tax benefits is required in view of “the economic reality of tax benefits produced by tax shelters.” Brief for Respondents 14. They maintain that since “tax benefits to the partner represent an important tangible economic advantage expected to be derived from his investment,” Salcer, supra, at 940, Congress must have intended that tax benefits would reduce the plaintiff’s allowable recovery under § 28(a). In support of their version of “economic reality,” respondents note that the return from a tax shelter investment may be analyzed as consisting of cash flow, tax benefits, and equity value, Brief for Respondents 11, and that some courts have held that investors may sue for fraud where a tax shelter investment has not produced promised tax benefits. See Sharp v. Coopers & Lybrand, 649 F. 2d 175 (CA3 1981), cert. denied, 455 U. S. 938 (1982).

We have already established that Congress did not design §12(2) to accommodate these arguments, and that § 28(a) does not place them on a surer footing. Respondents essentially ask us to treat tax benefits as a separate asset that is acquired when a limited partner purchases a share in a tax shelter partnership. But the legal form of the transaction does not reflect this treatment. Petitioners purchased securities, thereby acquiring freely alienable rights to any income that accrued to them by virtue of their ownership. They did not, however, also acquire a separate, freely transferable bundle of tax losses that would have value apart from petitioners’ status as partners. For obvious reasons, tax deductions and tax credits are not, in the absence of a statutory-provision to the contrary, freely transferable from one person to another if wholly severed from the property or activity to which they relate: “[t]he statutes pertaining to the determination of taxable income . . . disclos[e] a general purpose to confine allowable losses to the taxpayer sustaining them, i. e., to treat them as personal to him and not transferable to or usable by another.” New Colonial Ice Co. v. Helvering, 292 U. S. 435, 440 (1934). Accordingly, we decline to treat these tax losses as so much property created by the promoters of the partnership. It is for Congress, not this Court, to decide whether the federal securities laws should be modified to comport with respondents’ version of economic reality.

We acknowledge that, absent an offset for tax benefits, plaintiffs may have an incentive to wait to raise their § 12(2) claims until they have received the bulk of the tax benefits available from a tax shelter, since after their securities are tendered they will cease to receive tax benefits. We are not persuaded, however, that courts lack adequate means to deal with any potential for abuse on this score. In cases under § 10(b), some courts have barred plaintiffs from electing rescission, or a rescissory measure of damages, where they delayed tender or suit in order to increase their expected recovery should the market decline. See, e. g., Baumel v. Rosen, 412 F. 2d 571, 574-575 (CA4 1969), cert. denied, 396 U. S. 1037 (1970); Loss, at 1133, n. 127; Thompson, at 369-370. A similar rule may well be appropriate where plaintiffs delay tender or suit in order to obtain additional tax benefits, although we need not so decide today.

We also have no occasion in this case to decide whether, assuming that a rescissory recovery may sometimes be proper under § 10(b), plaintiffs in such cases should invariably be free to elect a rescissory measure of damages rather than out-of-pocket damages. Consequently, we do not consider whether courts may ever refuse to allow a rescissory recovery under § 10(b) where the “premium” for expected tax benefits represented a large portion of the purchase price, in which event the out-of-pocket measure might yield a significantly smaller recovery. See Salcer, 774 F. 2d, at 940, and n. 5. In this case, a rescissory measure of damages was determined to be proper, and respondents have abandoned their initial challenge to that ruling.

We conclude, then, that the Court of Appeals erred in holding that § 28(a) requires a rescissory recovery under § 12(2) or § 10(b) to be reduced by tax benefits received from a tax shelter investment. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun,

concurring.

I join the Court’s well-reasoned opinion. As the Court recognizes, this case concerns the proper measure of damages under two distinct statutory schemes — § 12(2) of the Securities Act of 1933, 15 U. S. C. §77i(2), and §§ 10(b) and 28(a) of the Securities Exchange Act of 1934, 15 U. S. C. §§78j(b) and 78bb(a). See ante, at 649. The Court correctly concludes that, under the specific remedial formula set out in § 12(2), the tax benefits generated by an investment provide no basis for reducing a defrauded investor’s recovery. Ante, at 655-660. Since petitioners prevailed on their § 12(2) claim as well as on their § 10(b) claim, they are entitled to select the damages remedy more favorable to them. I write separately merely to explain why it may be proper to take tax benefits into account in a case brought solely under § 10(b) and Rule 10b-5 of the SEC, 17 CFR §240.10b-5 (1985), a question the Court leaves open. Ante, at 666-667.

The measure of damages in a § 12(2) case brought by an investor who still owns the security involved is rescissory: the statute permits the defrauded investor “to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security . . . .” I agree with the Court that tax benefits cannot be considered either “income” or “consideration.” Ante, at 656-657, 659-660. Recovery in a case brought under § 10(b) is governed by § 28(a) which, unlike § 12(2), does not set out a specific method of calculating damages. Rather, § 28(a) merely limits recovery to the “actual damages on account of the act complained of.” A rescissory measure of damages may sometimes be appropriate. See ante, at 661-662. I agree with the Court that when rescission is the appropriate remedy tax benefits should not be taken into account. Normally, however, the proper measure of damages in a § 10(b) case is an investor’s out-of-pocket loss, that is, “the difference between the fair value of all that [the plaintiff] received and the fair value of what he would have received had there been no fraudulent conduct.” Affiliated Ute Citizens v. United States, 406 U. S. 128, 155 (1972); see ante, at 661-662.

To ascertain out-of-pocket loss requires taking into account all the elements that go into the price of a tax shelter. That price will reflect both the value of the underlying asset— here, a motel with a potential income stream and a potential for capital appreciation — and the value of the tax write-offs that the construction and operation of the underlying asset will generate. See Salcer v. Envicon Equities Corp., 744 F. 2d 935, 938, 940 (CA2 1984), vacated and remanded, post, p. 1015. See also Austin v. Loftsgaarden, 675 F. 2d 168, 174 (CA8 1982) (Austin I) (respondent forced to increase potential tax benefits to attract investors). An investor will pay more for a share of an underlying asset when ownership will provide not only income and capital appreciation but also tax benefits.

An investor who has invested in a tax shelter can be defrauded in either or both of two ways. First, the promoter may have misled him with respect to the level of potential tax benefits. See, e. g., Lasker v. Bear, Stearns & Co., 757 F. 2d 15 (CA2 1985); Sharp v. Coopers & Lybrand, 649 F. 2d 175 (CA3 1981), cert. denied, 455 U. S. 938 (1982). Second, the promoter may have misled him with respect to the value of the underlying asset. See, e. g., Salcer, 744 F. 2d, at 940, n. 5 (referring to views of the SEC as amicus curiae). This case falls only within the latter category: petitioners do not claim they were misled with regard to the tax benefits they could expect from their investment; rather, they claim respondents misled them with respect to the profitability of the motel.

An investor who receives the promised tax benefits, but not the promised income stream or appreciation, of course has been injured. But this injury — the difference between the value of what he received and the value of what he was promised — is represented, not by the entire purchase price, but rather by that portion of the purchase price which went toward a high quality underlying asset when what was received was a lower quality asset. In other words, the investor received the benefit of his bargain with respect to that part of the purchase price which went toward buying the tax benefits. The proper measure of recovery in such a case is therefore the part of the purchase price attributable to payment for an asset that was never received. See also Salcer, 744 F. 2d, at 940, n. 5. The Court recognizes that it may be proper to reduce recovery in cases brought solely under § 10(b) and involving securities as to which tax consequences provided a major inducement to investment, and I therefore join its opinion.

Justice Brennan,

dissenting.

Section 12(2) of the Securities Act of 1933 provides that an investor may sue a seller of securities for misrepresentation of material facts in the prospectus or offering memorandum “to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.” 15 U. S. C. §77Z(2). I agree with the Court that § 12(2) prescribes the remedy of rescission and restitution for investors who still own the securities. Unlike the Court, however, I believe that § 12(2) requires that restitution to the plaintiff be reduced by any tax benefits that a purchaser has bargained for and received from a tax shelter investment.

I too begin with the language of the statute. We know that Congress intended to establish rescission and restitution as the remedy for prospectus misrepresentation, not because it said so directly, but because that is the relief Congress describes in § 12(2). Given this intent, I would look for guidance in interpreting the word “income” in the theory and goals of common-law and equitable restitution, rather than in the Internal Revenue Code, as the Court does. L. Loss, Fundamentals of Securities Regulation 1022 (1983) (“Section 12(2) can perhaps best be analyzed and evaluated by comparing it with common law (or equitable) rescission, from which it was adapted”).

At common law and equity, rescission entails the undoing of the original transaction and restitution involves the restoration of each party to his precontract position. E. g., 3 H. Black, Rescission of Contracts and Cancellation of Written Instruments § 616, p. 1482 (2d ed., 1929); D. Dobbs, Remedies §9.4, p. 618 (1973); C. McCormick, Law of Damages § 121, p. 448 (1935). In order to reestablish the status quo ante, the plaintiff must return to the defendant the subject of the transaction, plus whatever else he may have bargained for and received under the contract by way of money, property, other consideration, or benefit, and the defendant must return to the plaintiff the consideration furnished by the plaintiff, plus the value of any other direct benefit the defendant received from the bargain, such as interest. E. g., 2 Black, supra, § 617, at 1485, 1487; 5 A. Corbin, Contracts § 1114, p. 607 (1964); 1 G. Palmer, Law of Restitution § 3.9, p. 275, § 3.11, p. 294, § 3.12, pp. 303-305 (1978); Thompson, The Measure of Recovery under Rule 10b-5: A Restitution Alternative to Tort Damages, 37 Vand. L. Rev. 349, 366, 369 (1984). In practice, where the defendant has sold something to the plaintiff for money, the steps leading to return to the status quo are streamlined: generally the plaintiff must tender the subject of the sale to the defendant and the defendant must tender to the_plaintiff the sale price plus interest, minus whatever direct value the plaintiff has received from the transaction. If the plaintiff were not required to restore the value he has received from the bargain to the defendant, and were allowed to recover the full consideration he gave for the transaction, the plaintiff would be placed in a better position than he occupied before the contract was made — a result contrary to the theory of restitution. E. g. Corbin, supra; 3 Black, supra, § 617, at 1488 (“[A] party will not be permitted to rescind a contract so as to reclaim what he has parted with, and at the same time retain what he has received in the transaction”).

Application of these common-law principles to the rescission of a misrepresentation-induced sale of interests in a real estate limited partnership marketed as a tax shelter requires that the investor-plaintiff’s award be offset by tax benefits that the plaintiff bargained for and received as a result of the investment. This is so because a major portion of what the investor bargains for and purchases in a tax shelter is the tax benefit. See Salcer v. Envicon Equities Corp., 744 F. 2d 935, 940 (CA2 1984) (“One of the prime motivations for investment in limited real estate partnerships is the unique tax advantage made available to high tax bracket individuals”), vacated and remanded, post, p. 1015. Banoff, To What Extent Will Benefits from Tax Shelters Be Permitted to Offset Rescission Damages?, 57 J. Taxation 154, 157 (1982) (“[T]he plaintiff invests in a tax shelter largely for tax savings motives”); Note, Austin v. Loftsgaarden: Securities Fraud in Real Estate Limited Partnership Investments — Offsetting Plaintiffs’ Relief to the Extent of Tax Benefits Received, 16 Creighton L. Rev. 1140, 1143 (1983). Indeed, the facts that an investment is marketed as a tax shelter and that the investor generally pays a higher price for a tax sheltering investment than he would for one simply producing future growth or income, Salcer, supra, at 940, indicates that the tax shelter aspect of the investment is a bargained-for part of the agreement, rather than an incidental benefit. It would be ignoring reality to maintain that the economic benefit that flows to an investor from a tax shelter investment is not as direct a benefit of his bargain as are dividends that flow from a securities investment. Cf. United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 863-864 (1975) (Brennan, J., dissenting) (footnote omitted) (“[I]n a practical world there is no difference between [money earned and money saved through tax advantages]. The investor finds no reason to distinguish . . . between tax savings and after-tax income”). To a rational investor, a security that yields $101 of tax benefits differs from a security that yields $100 in dividends in only one way — by $1.

In my view, Congress’ use of the word “income” in § 12(2) does not require us to ignore this reality. The term “income” may fairly be construed to embrace the tax benefits that respondents purchased. Income is commonly defined as “a gain or recurrent benefit usually measured in money that derives from capital or labor.” Webster’s Ninth New Collegiate Dictionary 610 (1983). Under that ordinary meaning, a bargained-for tax benefit is income: it is a gain or benefit measured in money that the investor purchases, that is, that he derives from capital. Petitioners bargained for and received a monetary benefit, in the form of tax savings, from their investments in respondents’ tax shelter. The fact that this monetary benefit was realized through tax savings rather than in the form of a check delivered from the partnership to petitioners has no bearing on whether petitioners have received a direct monetary benefit from their investments. There is nothing in the language or history of the Securities Act of 1933 suggesting that Congress, in using the word “income,” intended to reject this common meaning of the word. I think that a fair reading of Congress’ intent was simply to provide for rescission and restitution, and not to carve out, to the exclusion of all other forms of value that flow directly from a securities transaction, only income as defined by the tax code, for offset against the plaintiff’s award.

Assuming, as does the Court, that rescission and restitution constitute proper relief for a violation of § 10(b) of the Securities Exchange Act of 1934, I would for the same reasons conclude that tax benefits should be offset against petitioners’ award under that provision.

I would affirm the judgment of the Court of Appeals and therefore respectfully dissent.

       For example, investor A, who invests in a security that is not a tax shelter, might pay $100 for a share in a corporation that runs hotels in the expectation that he will receive $10 in dividends each year plus $5 in appreciation of the value of the stock. Investor B might pay $110 for a proportionate share in a partnership that runs hotels in the expectation that, in addition to receiving the same amount of income from the hotels and the same possible appreciation in the value of the partnership share as A receives, he will also receive $25 in deductions he can use to offset income from another source. The additional $10 investor B pays to obtain the tax benefits is a “premium” attributable to receipt of tax benefits rather than receipt of economic benefits from the underlying asset.

       Suppose that both investor A and investor B, see n. 1, supra, are victims of material misrepresentations and that, in both cases, the hotels actually are worthless. If investor A (the non-tax shelter investor) sued under § 10(b), he would be entitled to damages of $100. If investor B actually had received the anticipated tax benefits (e. g., because, although the roof leaked and the rooms were unusable, the construction costs were actually incurred), he too would have actual damages of $100 (because that part of the purchase price of the security that represented payment for the asset that was claimed to be worth $100 was in fact worthless) and not $110 (because he did receive the tax benefits he was promised, for which a fully informed investor would have paid $10 at the time B bought the investment). Similarly, if it turned out that the ownership shares in the hotel are worth only $40, rather than $100 (e. g., because occupancy is lower than had been projected and revenues are therefore less than anticipated), both investor A and investor B will have actual damages of $60.
      This is not, however, to say, as the Court of Appeals did, see Austin v. Loftsgaarden, 768 F. 2d 949, 952 (CA8 1985) (Austin II), that a plaintiff’s recovery should be reduced by the amount of the tax benefits received. No rational investor would pay $1 for the ability to shelter $1 of income. Instead, recovery should be reduced by the market value of the economic benefits the plaintiff was promised and actually obtained, which includes the ability to shelter a particular amount of income. The value of that right can be established by expert testimony.

      1 also disagree with the Court’s assertion that because the tax benefits “accrue only if the tax deductions or credits the investment throws off are combined with income generated by the investor or taxes owed on such income,” they “would in all likelihood not have been deemed a ‘direct product’ of the security at common law.” Ante, at 658. The deductions or credits received in a transaction such as the one at issue in this ease are valued in a manner that is entirely independent of anything that the investor may or may not do. In other words, in valuing a tax shelter for marketing purposes, the seller assumes that a buyer has need for the tax deductions the investment will generate, just as the seller of a rebuilt automobile engine assumes that the buyer has a ear in which to put that engine. We do not— at least I would not — describe the value that an engine has when placed in a car as “indirect” simply because the buyer had to acquire a car in order to exploit that value.


source: Caselaw Access Project

author:
Chief Justice Burger Justice Brennan, Justice Marshall,
      Justice Stevens,

license: Public Domain

text:
    BETHEL SCHOOL DISTRICT NO. 403 et al. v. FRASER, a minor, et al.
    No. 84-1667.
    Argued March 3, 1986
    Decided July 7, 1986

      BURGER, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 687. Blackmun, J., concurred in the result. Marshall, J., post, p. 690, and Stevens, J., post, p. 691, filed dissenting opinions.

      William A. Coats argued the cause for petitioners. With him on the briefs was Clifford D. Foster, Jr.

      Jeffrey T. Haley argued the cause for respondents. With him on the brief was Charles S. Sims.

      Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Kuhl, Anthony J. Steinmeyer, and Robert V. Zener; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun, John H. Find-ley, and George Nicholson; and for the Texas Council of School Attorneys by Jean F. Powers and David Crump.

      Briefs of amici curiae urging affirmance were filed for the American Booksellers Association et al. by Ronald Coles; for the Freedom to Read Foundation by James A. Klenk; for the National Education Association by Michael D. Simpson; and for the Student Press Law Center by J. Marc Abrams.

        Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon filed a brief for the National School Boards Association as amicus curiae.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly.

I

A

On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Pierce County, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students, many of whom were 14-year-olds, attended the assembly. Students were required to attend the assembly or to report to the study hall. The assembly was part of a school-sponsored educational program in self-government. Students who elected not to attend the assembly were required to report to study hall. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.

Two of Fraser’s teachers, with whom he discussed the contents of his speech in advance, informed him that the speech was “inappropriate and that he probably should not deliver it,” App. 30, and that his delivery of the speech might have “severe consequences.” Id., at 61.

During Fraser’s delivery of the speech, a school counselor observed the reaction of students to the speech. Some students hooted and yelled; some by gestures graphically simulated the sexual activities pointedly alluded to in respondent’s speech. Other students appeared to be bewildered and embarrassed by the speech. One teacher reported that on the day following the speech, she found it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the class. Id., at 41-44.

A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides:

“Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.”

The morning after the assembly, the Assistant Principal called Fraser into her office and notified him that the school considered his speech to have been a violation of this rule. Fraser was presented with copies of five letters submitted by teachers, describing his conduct at the assembly; he was given a chance to explain his conduct, and he admitted to having given the speech described and that he deliberately used sexual innuendo in the speech. Fraser was then informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school’s commencement exercises.

Fraser sought review of this disciplinary action through the School District’s grievance procedures. The hearing officer determined that the speech given by respondent was “indecent, lewd, and offensive to the modesty and decency of many of the students and faculty in attendance at the assembly.” The examiner determined that the speech fell within the ordinary meaning of “obscene,” as used in the disruptive-conduct rule, and affirmed the discipline in its entirety. Fraser served two days of his suspension, and was allowed to return to school on the third day.

B

Respondent, by his father as guardian ad litem, then brought this action in the United States District Court for the Western District of Washington. Respondent alleged a violation of his First Amendment right to freedom of speech and sought both injunctive relief and monetary damages under 42 U. S. C. § 1983. The District Court held that the school’s sanctions violated respondent’s right to freedom of speech under the First Amendment to the United States Constitution, that the school’s disruptive-conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent’s name from the graduation speaker’s list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction. The District Court awarded respondent $278 in damages, $12,750 in litigation costs and attorney’s fees, and enjoined the School District from preventing respondent from speaking at the commencement ceremonies. Respondent, who had been elected graduation speaker by a -write-in vote of his classmates, delivered a speech at the commencement ceremonies on June 8, 1983.

The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, 755 F. 2d 1356 (1985), holding that respondent’s speech was indistinguishable from the protest armband in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). The court explicitly rejected the School District’s argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Appeals also rejected the School District’s argument that it had an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school, reasoning that the School District’s “unbridled discretion” to determine what discourse is “decent” would “increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.” 755 F. 2d, at 1363. Finally, the Court of Appeals rejected the School District’s argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity.

We granted certiorari, 474 U. S. 814 (1985). We reverse.

I — I I — I

This Court acknowledged in Tinker v. Des Moines Independent Community School Dist., supra, that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id., at 506. The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and obscene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position.

The marked distinction between the political “message” of the armbands in Tinker and the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students’ right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case did “not concern speech or action that intrudes upon the work of the schools or the rights of other students.” Id., at 508.

It is against this background that we turn to consider the level of First Amendment protection accorded to Fraser’s utterances and actions before an official high school assembly attended by 600 students.

I — i I — I h-H

The role and purpose of the American public school system were well described by two historians, who stated: “[P]ublic 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 (1968). In Ambach v. Norwick, 441 U. S. 68, 76-77 (1979), we echoed the essence of this statement of the objectives of public education as the “inculcation of] fundamental values necessary to the maintenance of a democratic political system.”

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.

In our Nation’s legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate. The Manual of Parliamentary Practice, drafted by Thomas Jefferson and adopted by the House of Representatives to govern the proceedings in that body, prohibits the use of “impertinent” speech during debate and likewise provides that “[n]o person is to use indecent language against the proceedings of the House.” Jefferson’s Manual of Parliamentary Practice §§359, 360, reprinted in Manual and Rules of House of Representatives, H. R. Doc. No. 97-271, pp. 158-159 (1982); see id., at 111, n. a (Jefferson’s Manual governs the House in all cases to which it applies). The Rules of Debate applicable in the Senate likewise provide that a Senator may be called to order for imputing improper motives to another Senator or for referring offensively to any state. See Senate Procedure, S. Doc. No. 97-2, Rule XIX, pp. 568-569, 588-591 (1981). Senators have been censured for abusive language directed at other Senators. See Senate Election, Expulsion and Censure Cases from 1793 to 1972, S. Doc. No. 92-7, pp. 95-98 (1972) (Sens. McLaurin and Tillman); id., at 152-153 (Sen. McCarthy). Can it be that what is proscribed in the halls of Congress is beyond the reach of school officials to regulate?

The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms highly offensive to most citizens. See Cohen v. California, 403 U. S. 15 (1971). It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. In New Jersey v. T. L. O., 469 U. S. 325, 340-342 (1985), we reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. As cogently expressed by Judge Newman, “the First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.” Thomas v. Board of Education, Granville Central School Dist., 607 F. 2d 1043, 1057 (CA2 1979) (opinion concurring in result).

Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” Tinker, 393 U. S., at 508; see Ambach v. Norwick, supra. The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.

The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers — and indeed the older students — demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. 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 and conduct such as that indulged in by this confused boy.

The pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students — indeed to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. See App. 77-81. The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it provoked.

This Court’s First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. In Ginsberg v. New York, 390 U. S. 629 (1968), this Court upheld a New York statute banning the sale of sexually oriented material to minors, even though the material in question was entitled to First Amendment protection with respect to adults. And in addressing the question whether the First Amendment places any limit on the authority of public schools to remove books from a public school library, all Members of the Court, otherwise sharply divided, acknowledged that the school board has the authority to remove books that are vulgar. Board of Education v. Pico, 457 U. S. 853, 871-872 (1982) (plurality opinion); id., at 879-881 (Blackmun, J., concurring in part and in judgment); id., at 918-920 (Rehnquist, J., dissenting). These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children — especially in a captive audience — from exposure to sexually explicit, indecent, or lewd speech.

We have also recognized an interest in protecting minors from exposure to vulgar and offensive spoken language. In FCC v. Pacifica Foundation, 438 U. S. 726 (1978), we dealt with the power of the Federal Communications Commission to regulate a radio broadcast described as “indecent but not obscene.” There the Court reviewed an administrative condemnation of the radio broadcast of a self-styled “humorist” who described his own performance as being in “the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say ever.” Id., at 729; see also id., at 751-755 (Appendix to opinion of the Court). The Commission concluded that “certain words depicted sexual and excretory activities in a patently offensive manner, [and] noted that they 'were broadcast at a time when children were undoubtedly in the audience.’” The Commission issued an order declaring that the radio station was guilty of broadcasting indecent language in violation of 18 U. S. C. § 1464. 438 U. S., at 732. The Court of Appeals set aside the Commission’s determination, and we reversed, reinstating the Commission’s citation of the station. We concluded that the broadcast was properly considered “obscene, indecent, or profane” within the meaning of the statute. The plurality opinion went on to reject the radio station’s assertion of a First Amendment right to broadcast vulgarity:

“These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: ‘[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ Chaplinsky v. New Hampshire, 315 U. S., at 572.” Id., at 746.

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. 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. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education. Justice Black, dissenting in Tinker, made a point that is especially relevant in this case:

“I wish therefore, ... to disclaim any purpose ... to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.” 393 U. S., at 526.

IV

Respondent contends that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech in question would subject him to disciplinary sanctions. This argument is wholly without merit. We have recognized that “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.” New Jersey v. T. L. O., 469 U. S., at 340. Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. Cf. Arnett v. Kennedy, 416 U. S. 134, 161 (1974) (Rehnquist, J., concurring). Two days’ suspension from school does not rise to the level of a penal sanction calling for the full panoply of procedural due process protections applicable to a criminal prosecution. Cf. Goss v. Lopez, 419 U. S. 565 (1975). The school disciplinary rule proscribing “obscene” language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions.

The judgment of the Court of Appeals for the Ninth Circuit is

Reversed.

Justice Blackmun concurs in the result.

Justice Brennan,

concurring in the judgment.

Respondent gave the following speech at a high school assembly in support of a candidate for student government office:

“T 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 A. S. B. vice-president — he’ll never come between you and the best our high school can be.’” App. 47.

The Court, referring to these remarks as “obscene,” “vulgar,” “lewd,” and “offensively lewd,” concludes that school officials properly punished respondent for uttering the speech. Having read the full text of respondent’s remarks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent’s speech — and all that need be said — is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent’s remarks exceeded permissible limits. Thus, while I concur in the Court’s judgment, I write separately to express my understanding of the breadth of the Court’s holding.

The Court today reaffirms the unimpeachable proposition that students do not “‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’” Ante, at 680 (quoting Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969)). If respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate, see Cohen v. California, 403 U. S. 15 (1971); the Court’s opinion does not suggest otherwise. Moreover, despite the Court’s characterizations, the language respondent used is far removed from the very narrow class of “obscene” speech which the Court has held is not protected by the First Amendment. Ginsberg v. New York, 390 U. S. 629, 635 (1968); Roth v. United States, 354 U. S. 476, 485 (1957). It is true, however, that the State has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities. Thus, the Court holds that under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly which school officials conclude disrupted the school’s educational mission. Respondent’s speech may well have been protected had he given it in school but under different circumstances, where the school’s legitimate interests in teaching and maintaining civil public discourse were less weighty.

In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate respondent’s speech because they disagreed with the views he sought to express. Cf. Tinker, supra. Nor does this case involve an attempt by school officials to ban written materials they consider “inappropriate” for high school students, cf. Board of Education v. Pico, 457 U. S. 853 (1982), or to limit what students should hear, read, or learn about. Thus, the Court’s holding concerns only the authority that school officials have to restrict a high school student’s use of disruptive language in a speech given to a high school assembly.

The authority school officials have to regulate such speech by high school students is not limitless. See Thomas v. Board of Education, Granville Central School Dist., 607 F. 2d 1043, 1057 (CA2 1979) (Newman, J., concurring in result) (“[S]chool officials ... do [not] have limitless discretion to apply their own notions of indecency. Courts have a First Amendment responsibility to insure that robust rhetoric . . . is not suppressed by prudish failures to distinguish the vigorous from the vulgar”). Under the circumstances of this case, however, I believe that school officials did not violate the First Amendment in determining that respondent should be disciplined for the disruptive language he used while addressing a high school assembly. Thus, I concur in the judgment reversing the decision of the Court of Appeals.

Justice Marshall,

dissenting.

I agree with the principles that Justice Brennan sets out in his opinion concurring in the judgment. I dissent from the Court’s decision, however, because in my view the School District failed to demonstrate that respondent’s remarks were indeed disruptive. The District Court and Court of Appeals conscientiously applied Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), and concluded that the School District had not demonstrated any disruption of the educational process. I recognize that the school administration must be given wide latitude to determine what forms of conduct are inconsistent with the school’s educational mission; nevertheless, where speech is involved, we may not unquestioningly accept a teacher’s or administrator’s assertion that certain pure speech interfered with education. Here the School District, despite a clear opportunity to do so, failed to bring in evidence sufficient to convince either of the two lower courts that education at Bethel School was disrupted by respondent’s speech. I therefore see no reason to disturb the Court of Appeals’ judgment.

Justice Stevens,

dissenting.

“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. For I believe a school faculty must regulate the content as well as the style of student speech in carrying out its educational mission. It does seem to me, however, that if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. The interest in free speech protected by the First Amendment and the interest in fair procedure protected by the Due Process Clause of the Fourteenth Amendment combine to require this conclusion.

This respondent was an outstanding young man with a fine academic record. The fact that he was chosen by the student body to speak at the school’s commencement exercises demonstrates that he was respected by his peers. This fact is relevant for two reasons. It confirms the conclusion that the discipline imposed on him — a 3-day suspension and ineligibility to speak at the school’s graduation exercises — was sufficiently serious to justify invocation of the School District’s grievance procedures. See Goss v. Lopez, 419 U. S. 565, 574-575 (1975). More importantly, it indicates that he was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word — or a sexual metaphor — than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.

The fact that the speech may not have been offensive to his audience — or that he honestly believed that it would be inoffensive-does not mean that he had a constitutional right to deliver it. For the school — not the student —must prescribe the rules of conduct in an educational institution. But it does mean that he should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate punitive consequences.

One might conclude that respondent should have known that he would be punished for giving this speech on three quite different theories: (1) It violated the “Disruptive Conduct” rule published in the student handbook; (2) he was specifically warned by his teachers; or (3) the impropriety is so obvious that no specific notice was required. I discuss each theory in turn.

The Disciplinary Rule

At the time the discipline was imposed, as well as in its defense of this lawsuit, the school took the position that respondent violated the following published rule:

“‘In addition to the criminal acts defined above, the commission of, or participation in certain noncriminal activities or acts may lead to disciplinary action. Generally, these are acts which disrupt and interfere with the educational process.
“‘Disruptive Conduct. Conduct which materially and substantially interferes.with the educational process is prohibited, including the use of obscene, profane language or gestures.”’ 755 F. 2d 1356, 1357, n. 1 (CA9 1985).

Based on the findings of fact made by the District Court, the Court of Appeals concluded that the evidence did not show “that the speech had a materially disruptive effect on the educational process.” Id., at 1361. The Court of Appeals explained the basis for this conclusion:

“[T]he record now before us yields no evidence that Fraser’s use of a sexual innuendo in his speech materially interfered with activities at Bethel High School. While the students’ reaction to Fraser’s speech may fairly be characterized as boisterous, it was hardly disruptive of the educational process. In the words of Mr. McCutcheon, the school counselor whose testimony the District relies upon, the reaction of the student body ‘was not atypical to a high school auditorium assembly.’ In our view, a noisy response to the speech and sexually suggestive movements by three students in a crowd of 600 fail to rise to the level of a material interference with the educational process that justifies impinging upon Fraser’s First Amendment right to express himself freely.
“We find it significant that although four teachers delivered written statements to an assistant principal commenting on Fraser’s speech, none of them suggested that the speech disrupted the assembly or otherwise interfered with school activities. See, Finding of Fact No. 8. Nor can a finding of material disruption be based upon the evidence that the speech proved to be a lively topic of conversation among students the following day.” Id., at 1860-1361.

Thus, the evidence in the record, as interpreted by the District Court and the Court of Appeals, makes it perfectly clear that respondent’s speech was not “conduct” prohibited by the disciplinary rule. Indeed, even if the language of the rule could be stretched to encompass the nondisruptive use of obscene or profane language, there is no such language in respondent’s speech. What the speech does contain is a sexual metaphor that may unquestionably be offensive to some listeners in some settings. But if an impartial judge puts his or her own views about the metaphor to one side, I simply cannot understand how he or she could conclude that it is embraced by the above-quoted rule. At best, the rule is sufficiently ambiguous that without a further explanation or construction it could not advise the reader of the student handbook that the speech would be forbidden.

The Specific Warning by the Teachers

Respondent read his speech to three different teachers before he gave it. Mrs. Irene Hicks told him that she thought the speech “was inappropriate and that he probably should not deliver it.” App. 30. Steven DeHart told respondent “that this would indeed cause problems in that it would raise eyebrows.” Id., at 61. The third teacher, Shawn Madden, did not testify. None of the three suggested that the speech might violate a school rule. Id., at 49-50.

The fact that respondent reviewed the text of his speech with three different teachers before he gave it does indicate that he must have been aware of the possibility that it would provoke an adverse reaction, but the teachers’ responses certainly did not give him any better notice of the likelihood of discipline than did the student handbook itself. In my opinion, therefore, the most difficult question is whether the speech was so obviously offensive that an intelligent high school student must be presumed to have realized that he would be punished for giving it.

Obvious Impropriety

Justice Sutherland taught us that a “nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard.” Euclid v. Ambler Realty Co., 272 U. S. 365, 388 (1926). Vulgar language, like vulgar animals, may be acceptable in some contexts and intolerable in others. See FCC v. Pacifica Foundation, 438 U. S. 726, 750 (1978). Indeed, even ordinary, inoffensive speech may be wholly unacceptable in some settings. See Schenck v. United States, 249 U. S. 47, 52 (1919); Pacifica, supra, at 744-745.

It seems fairly obvious that respondent’s speech would be inappropriate in certain classroom and formal social settings. On the other hand, in a locker room or perhaps in a school corridor the metaphor in the speech might be regarded as rather routine comment. If this be true, and if respondent’s audience consisted almost entirely of young people with whom he conversed on a daily basis, can we — at this distance — confidently assert that he must have known that the school administration would punish him for delivering it?

For three reasons, I think not. First, it seems highly unlikely that he would have decided to deliver the speech if he had known that it would result in his suspension and disqualification from delivering the school commencement address. Second, I believe a strong presumption in favor of free expression should apply whenever an issue of this kind is arguable. Third, because the Court has adopted the policy of applying contemporary community standards in evaluating expression with sexual connotations, this Court should defer to the views of the district and circuit judges who are in a much better position to evaluate this speech than we are.

I would affirm the judgment of the Court of Appeals.

      Petitioners also challenge the ruling of the District Court that the removal of Fraser’s name from the ballot for graduation speaker violated his due process rights because that sanction was not indicated as a potential punishment in the school’s disciplinary rules. We agree with the Court of Appeals that this issue has become moot, since the graduation ceremony has long since passed and Fraser was permitted to speak in accordance with the District Court’s injunction. No part of the damages award was based upon the removal of Fraser’s name from the list, since damages were based upon the loss of two days’ schooling.

       In the course of its opinion, the Court makes certain remarks concerning the authority of school officials to regulate student language in public schools. For example, the Court notes that “[n]othing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions.” Ante, at 683. These statements obviously do not, and indeed given our prior precedents could not, refer to the government’s authority generally to regulate the language used in public debate outside of the school environment.

       The Court speculates that the speech was “insulting” to female students, and “seriously damaging” to 14-year-olds, so that school officials could legitimately suppress such expression in order to protect these groups. Ante, at 683. There is no evidence in the record that any students, male or female, found the speech “insulting.” And while it was not unreasonable for school officials to conclude that respondent’s remarks were inappropriate for a school-sponsored assembly, the language respondent used does not even approach the sexually explicit speech regulated in Ginsberg v. New York, 390 U. S. 629 (1968), or the indecent speech banned in FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Indeed, to my mind, respondent’s speech was no more “obscene,” “lewd,” or “sexually explicit” than the bulk of programs currently appearing on prime time television or in the local cinema. Thus, I disagree with the Court’s suggestion that school officials could punish respondent’s speech out of a need to protect younger students.

       Respondent served two days’ suspension and had his name removed from the list of candidates for graduation speaker at the school’s commencement exercises, although he was eventually permitted to speak at the graduation. While I find this punishment somewhat severe in light of the nature of respondent’s transgression, I cannot conclude that school officials exceeded the bounds of their disciplinary authority.

       “Because every university’s resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time — one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet — the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a ‘compelling state interest’ to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of this kind should be made by academicians, not by federal judges, and their standards for decision should not be encumbered with ambiguous phrases like ‘compelling state interest.’” Widmar v. Vincent, 454 U. S. 263, 278-279 (1981) (Stevens, J., concurring in judgment) (footnotes omitted).
      “Any student of history who has been reprimanded for talking about the World Series during a class discussion of the First Amendment knows that it is incorrect to state that a ‘time, place, or manner restriction may not be based upon either the content or subject matter of speech.’” Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 544-545 (1980) (Stevens, J., concurring in judgment).

       As the Court of Appeals noted, there “is no evidence in the record indicating that any students found the speech to be offensive.” 755 F. 2d 1356, 1361, n. 4 (CA9 1985).
      In its opinion today, the Court describes respondent as a “confused boy,” ante, at 683, and repeatedly characterizes his audience of high school students as “children,” ante, at 682, 684. When a more orthodox message is being conveyed to a similar audience, four Members of today’s majority would treat high school students like college students rather than like children. See Bender v. Williamsport Area School Dist., 475 U. S. 534 (1986) (dissenting opinions).

       See Arnold v. Carpenter, 459 F. 2d 939, 944 (CA7 1972) (Stevens, J., dissenting).

       The Court’s reliance on the school’s authority to prohibit “unanticipated conduct disruptive of the educational process,” ante, at 686, is misplaced. The findings of the District Court, which were upheld by the Court of Appeals, established that the speech was not “disruptive.” Departing from our normal practice concerning factual findings, the Court’s decision rests on “utterly unproven, subjective impressions of some hypothetical students.” Bender v. Williamsport Area School Dist., 475 U. S., at 553 (Burger, C. J., dissenting).

       The school’s disruptive conduct rule is entirely concerned with “the educational process.” It does not expressly refer to extracurricular activities in general, or to student political campaigns or student debates. In contrast, “[i]n our Nation’s legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate.” See ante, at 681. If a written rule is needed to forewarn a United States Senator that the use of offensive speech may give rise to discipline, a high school student should be entitled to an equally unambiguous warning. Unlike the Manual of Parliamentary Practice drafted by Thomas Jefferson, this School District’s rules of conduct contain no unequivocal prohibition against the use of “impertinent” speech or “indecent language.”