Hazelwood still extends far beyond student press
A recent ruling by the 6th U.S. Circuit Court of Appeals furnished a telling reminder that a 1988 Supreme Court decision continues to be invoked to restrict student speech in areas well beyond what was originally at issue in the case, Hazelwood School District v. Kuhlmeier.
The Supreme Court significantly altered the legal landscape regarding student expression 20 years ago when it issued Hazelwood. The case involved three female high school students in Missouri who were upset after their school principal removed two articles from their student newspaper. These young staffers of The Spectrum — produced as part of a journalism class — said the principal had engaged in what Justice William Brennan would later criticize as “brutal censorship.”
However, a 5-3 Court majority ruled against the three students and established a new legal standard for evaluating student speech that was school-sponsored instead of student-initiated. Before Hazelwood, the seminal case was the black-armband case of Tinker v. Des Moines Independent Community School District (1969). In Tinker, the Court ruled 7-2 that school officials could not censor student expression unless they could reasonably forecast that the student speech in question would cause a substantial disruption of school activities or invade the rights of others.
In Hazelwood, the Court established a new rule that applied to school-sponsored speech: “[E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their reasons for doing so are reasonably related to legitimate pedagogical concerns.”
This standard defers to the judgment of educators and involves a low level of constitutional review known in legal terms as rational basis. The Court’s language concerning “reasonably related to legitimate pedagogical concerns” also looks remarkably similar to another Supreme Court ruling that arose out of Missouri involving an inmate named Leonard Safley who objected to prison policies banning inmate-to-inmate marriage and mail correspondence. In Turner v. Safley (1987), Justice Sandra Day O’Connor wrote: “[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”
If the standard for prisoner constitutional claims is “reasonably related to legitimate penological concerns” and the standard for school-sponsored student speech is “reasonably related to legitimate pedagogical concerns,” then students (with respect to school-sponsored speech) have the same level of First Amendment rights as prison inmates — not a cheery thought for student-speech advocates.
The low level of judicial review is troublesome enough for student newspapers. But the Hazelwood standard has been applied far beyond the newspaper context. Courts have applied the decision and its deferential standard to teacher speech, student homework assignments, school plays, school mascots and more.
In January, the 6th Circuit applied the Hazelwood standard to reject the First Amendment claim of an elementary school child who was not allowed to “sell” candy canes bearing religious messages as part of a class learning project. In Curry v. Saginaw City School District, the appeals court reasoned that Hazelwood applies “when the speech at issue was made as part of school activities.”
According to the opinion, the principal in the case had a legitimate pedagogical reason in preventing young Joel Curry from attaching religious messages to the candy because they might offend other students. “Hazelwood does not require us to balance the gravity of the school’s educational purpose against Joel’s First Amendment right to free speech, only that the educational purpose behind the speech suppression be valid,” the 6th Circuit wrote.
But beyond the severely reduced protection for all sorts of student speech, Hazelwood’s ill effects include the sheer number of “legitimate pedagogical reasons” it allows school officials to cite to justify censorship. As the 6th Circuit stated in Poling v. Murphy (1989), “[T]he universe of legitimate pedagogical concerns is by no means confined to the academic.”
One of the legitimate pedagogical reasons stated in Hazelwood itself was “to dissociate the school with any position other than neutrality on matters of political controversy.” This reason would seem to permit school officials to censor student political speech — the very core type of speech the First Amendment was designed to protect.
The problem with allowing such broad censorial control over school officials is that students may not appreciate and respect the Bill of Rights and their First Amendment freedoms if they are denied on a daily basis in schools the opportunity to exercise those rights. There is a disconnect between teaching students about the lofty principles of the First Amendment yet squelching their expression regularly.
The Supreme Court said it eloquently more than 55 years ago in West Virginia Board of Education v. Barnette (1943): “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”