ERIC Identifier: ED321253
Publication Date: 1988-06-00
Author: Eveslage, Thomas
Source: ERIC Clearinghouse on Reading and Communication Skills
The Supreme Court on "Hazelwood": A Reversal on Regulation
of Student Expression. ERIC Digest No. 8.
Both judges and school officials have been thinking about and dealing
with the nature of students' rights to free speech through the 1970s and
1980s, since Tinker v. Des Moines Independent School Dist., the 1969 landmark
U.S. Supreme Court decision that acknowledged student rights. Stating that
students do not "shed their constitutional rights...at the schoolhouse
gate" (393 U.S. at 506), the Court upheld the right of three Des Moines
high school students to wear black armbands as a peaceful symbol of opposition
to the Vietnam war.
Tinker effectively brought the rights of students and those of other
citizens closer together and placed on public school officials who deny
students' rights burdens similar to those imposed on other government officials.
The Court's ruling and reasoning subsequently were applied to student expression
other than the wearing of armbands, from theater productions to art shows,
from school assemblies to student publications.
Freedom of the student press was faithfully chronicled as it unfolded
in the 1970s. The Supreme Court, balancing students' constitutional freedoms
and administrators' traditional responsibilities, said in Tinker that school
officials could not stop expression simply because they disliked it. Robert
Trager's seminal work, Student Press Rights (1974), shows how lower courts
built on this foundation.
The philosophy and reasoning of earlier court decisions were refined
but not revised in decisions into the 1980s. Trager (1976) reported that
the courts repeatedly overruled administrative efforts to use unconstitutionally
vague regulations to censor student publications. Ingelhart (1986) identified
25 cases heard in federal court between 1969 and 1984 involving high school
journalists. An overwhelming majority favored the students.
Despite such court support and increasing public awareness, the student
press was far from free. Captive Voices (Nelson, 1974) characterized it
as heavily self-censored, and Kristof (1983) noted that more than 80 percent
of student editors surveyed in 1981 reported overt or self-censorship.
Meanwhile, the mood was shifting. As early as 1981, Overbeck observed
that "it seems likely that the pendulum will continue to swing away from
student freedom and toward administrative authority....[T]he courts seem
prepared to give school officials an increasingly free hand to control
the content of student publications." (p. 18) In 1987, a record 623 requests
for legal advice flooded the Student Press Law Center in Washington, D.C.
THE COURT CHANGES DIRECTION
Student journalists' efforts to gain press freedom experienced a major
setback on January 13, 1988, when the U.S. Supreme Court ruled in Hazelwood
School Dist. v. Kuhlmeier that school administrators could censor a school-sponsored
news-paper. Just as Tinker had started an era of expanded student rights,
so Hazelwood signals a departure that could lead toward more restriction
of students' expression.
Day and Butler (1988) believe that the Supreme Court's Hazelwood ruling
appropriately balances student journalists' constitutional rights and the
pedagogical mission of public schools. Referring to education's historic
role of "cultural transmission," they argue that school administrators
must have the power to regulate behavior and preserve traditional rules
and values. Furthermore, they believe that, "[s]ince the school is the
'publisher'" of the paper, the principal must exercise some content control.
The Hazelwood principal believed that the stories he censored--accounts
of unnamed, pregnant students and a report on the impact of parental divorce
on students--were unfair and inappropriate for teenagers. He was concerned
that the "anonymous" students could be identified, that the school would
appear to be condoning teenage pregnancy, and that divorced parents criticized
should be consulted prior to publication.
HOW SURPRISING WAS THE REVERSAL?
The Supreme Court did foreshadow its 1988 Hazelwood ruling. In 1985
it gave school officials broad discretion to search students and their
belongings (New Jersey v. T.L.O), and the next year it upheld the suspension
of a student whose speech before a school assembly was considered inappropriately
vulgar (Bethel v. Fraser). Neither case focused on student rights; both
stressed administrators' rights.
But the same July day that the Supreme Court decided Bethel, the 8th
Circuit Court of Appeals ruled in Hazelwood (prior to its reaching the
Supreme Court) that the principal unconstitutionally censored the stories
written by Journalism II students for the newspaper. The circuit court's
ruling was predictable and consistent with precedent. It cited two free
speech safeguards which also are highlighted in a Student Press Law Center
book (1985) assessing the then-current parameters of student press rights:
1) Publications that operate as forums for student expression cannot be
censored merely because of dissatisfaction with the message; and 2) Censorship
based on substantial disruption of the educational process requires evidence
of such disruption.
The Supreme Court surprised many when it agreed to hear the Hazelwood
case. It had ignored its "substantial disruption" standard one year earlier
in Bethel and had never ruled on the question of student newspapers as
public forums. Many hoped that the Hazelwood decision would clarify those
matters and resolve questions about fiscal and legal liability and the
distinction between class-related and extra-curricular expression.
The real surprise came on January 13. Mark Goodman, Director of the
Student Press Law Center, called the Hazelwood decision a "dramatic contrast
to the decision of courts across the country over the last 15 years." (1988)
Most important, from a legal perspective, is the virtual abandonment of
Tinker and its progeny. After Hazelwood, students retain First Amendment
rights in the schools, but the Tinker standard (especially the "substantial
disruption" justification) applies only to non-school-sponsored speech--"personal
expression that happens to occur on the school premises." Most other student
expression is subject to a new standard the Court fashioned with sweeping
language and broad implications (Eveslage, 1988).
Instead of ruling narrowly on student newspapers, the Court in Hazelwood
gave discretion to school officials to:
1. Serve as publisher. (The Court equated publisher with editor-in-chief,
but ignored the implied fiscal and legal liability that comes when one
exercises such control.)
2. Censor, if there is a "reasonable" educational justification, any
expression that does not properly reflect the school's educational mission.
The Court called it reasonable to censor a news-paper story that school
officials believe is not "fair," expression that deals with "sensitive
topics," and content that is "ungrammatical, poorly written, inadequately
researched, biased or prejudiced, vulgar or profane, or unsuitable for
3. Use this power to control expression through any school-sponsored
activity. Legal distinctions between class-produced and extra-curricular
publications disappeared. Theater production (Faaborg, 1985), art shows,
debates and pep rallies are just some of the school-sponsored activities
now under tighter control. However, underground publications produced without
teacher assistance remain subject only to the Tinker standard.
4. Review student expression in advance, even when no guidelines define
what will or will not be censored.
Most perplexing for student journalists is the Court's definition of
public forum. It was not enough that the Hazelwood East newspaper, through
its own policy and practice, was identified as a public forum. It is up
to school officials to designate it as such. Upon doing so, school officials
must apply the Tinker standard to any regulation of the newspaper's contents.
SOME QUESTIONS REMAIN UNANSWERED
Several questions remain after Hazelwood. Abrams and Goodman (1988)
raise significant concerns regarding the public forum concept, the parameters
of school sponsorship, and fiscal liability and authority. They persuasively
conclude that Hazelwood does not apply to the college press, but the Supreme
Court refused to dismiss that possibility. And what Adams (1983) called
"the adviser's dilemma" remains a problem, as advisers face pressure to
exert more control over publications.
Free speech proponents can only hope for legal relief. Future litigation
may cause lower courts to limit or refine the Supreme Court's broad language
delineating student rights. Until then, student journalists can seek help
1. Using Justice Brennan's dissent in Hazelwood and other philosophical
arguments for a free student press (Trager and Eveslage, 1985; Ingelhart,
1986; Student Press Law Center, 1985) to negotiate a supportive school
2. Encouraging adoption of a journalism curriculum that stresses the
importance of freedom of the press as well as the appointment of an adviser
able to establish appropriate publication policies;
3. Finding support systems both within and outside the school (Student
Press Law Center, 1985; Goodman,1988; Trager and Eveslage, 1985); and
4. Joining the efforts of school boards to establish new policies and
of states to enact post- Hazelwood legislation--such as the Massachusetts
law dated July 14, 1988, and a similar law in California, which protect
students' free speech rights.
Abrams, J. Marc, and Goodman, S. Mark. "End of an era? The decline of
student press rights in the wake of the Kuhlmeier decision." Paper presented
at the 71st Annual Meeting of the Association for Education in Journalism
and Mass Communication, 1988. [ED number forthcoming]
Adams, Julian. Freedom and Ethics in the Press, New York: Richard Rosen,
Day, Louis A., and Butler, John M. "Hazelwood School District v. Kuhlmeier:
A constitutional retreat or sound public policy?" Paper presented at the
71st Annual Meeting of the Association for Education in Journalism and
Mass Communication, 1988. [ED number forthcoming]
Eveslage, Thomas. "Hazelwood v. Kuhlmeier: A threat and a challenge
to high school journalism," Quill and Scroll February-March 1988, pp. 9-10.
Faaborg, Karen Kramer. "High school play censorship: Are students' First
Amendment rights violated when officials cancel theatrical productions?"
Journal of Law and Education, 14 (4), October 1985, pp. 575-94.
Goodman, S. Mark. "Hazelwood: A complete guide to the Supreme Court
decision," Student Press Law Center Report, 9 (2), Spring 1988, pp. 35-43.
Ingelhart, Louis E. Press Law and Press Freedom for High School Publications,
New York: Greenwood Press, 1986. [ED 279 059]
Kristof, Nicholas D. Freedom of the High School Press, Lanham, Maryland:
University Press of America, 1983.
Nelson, Jack (Ed.) Captive Voices; High School Journalism in America,
New York: Schocken Books, 1974.
Overbeck, Wayne. "Student press freedom: Retrenchment in the 1980s."
Paper presented at the 64th Annual Meeting of the Association for Education
in Journalism and Mass Communication, 1981. [ED 203 366]
Student Press Law Center. Law of the Student Press, Washington, D.C.:
Student Press Law Center, 1985.
Trager, Robert. "Recent developments in secondary students' press rights."
Paper presented at the 59th Annual Meeting of the Association for Education
in Journalism and Mass Communication, 1976. [ED 150 598]
Trager, Robert. Student Press Rights: Struggles in Scholastic Journalism,
Urbana, Illinois: ERIC Clearinghouse on Reading and Communication Skills,
1974. [ED 096 691]
Trager, Robert, and Eveslage, Thomas. "Legal rights and responsibilities
of scholastic publications," C.S.P.A.A. Bulletin, 43 (4), Summer 1985,