ERIC Identifier: ED321253
Publication Date: 1988-06-00 
Author: Eveslage, Thomas 
Source: ERIC Clearinghouse on Reading and Communication Skills Bloomington IN. 

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 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. 


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. 


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 immature audiences." 

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. 


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 by: 

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 policy; 

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, 1983. 

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, pp. 3-14. 

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