In January 1988, the United States Supreme Court handed down its decision in the case Hazelwood School District v. Kuhlmeier. The decision upheld the right of public high school administrators at Hazelwood East High School in suburban St. Louis, Missouri, to censor stories concerning teen pregnancy and the effects of divorce on children from a school-sponsored student newspaper.
The "Hazelwood" decision was in dramatic contrast to the previous 15 years' decisions of courts across the country that had given student journalists extensive First Amendment protections. As a result, many students and advisers are concerned about the status of their rights.
Although the Supreme Court was only dealing with a student newspaper in this case, it seems clear that all student news and information media could be affected. Student newspapers, yearbooks, and literary magazines, as well as radio and TV programs, can use this information as a guide. Because the First Amendment only protects against the actions of government officials, and the "Hazelwood" case only dealt with First Amendment rights, private school students are unaffected by the "Hazelwood" decision. They must rely on school policies or state law to protect their free expression rights.
The most significant aspect of the "Hazelwood" decision is the emphasis it gives to determining whether a student publication is or is not a "public forum" for student expression. Some student publications that formerly may have been presumed public forums may not be after "Hazelwood." The determination of forum status may not always be clear, but this article describes how it will likely be made.
Please note one thing above all else. All public high school students still have some First Amendment protections that limit the ability of school officials to censor. No student or adviser should be willing to give up the battle against censorship. The Student Press Law Center remains a source of legal advice and assistance for students who are facing censorship from school officials. Write or call if you need our help. If you are involved with the student news media at a public or a private school, let the Student Press Law Center know when you have a problem with censorship by calling or writing to the address listed at the end of this article.
What the Decision Says
Hazelwood School District v. Kulhmeier was decided on January 13, 1988. The 5–3 vote reversed the decision of the United States Court of Appeals for the Eighth Circuit in St. Louis, which had upheld the rights of the students. Justice Byron White wrote the Court's majority opinion, which was joined by Justices Rehnquist, Stevens, O'Connor and Scalia. Justice William Brennan filed a dissenting opinion that was joined by Justices Marshall and Blackmun.
In essence, the majority opinion of the Supreme Court said that the rights of public school students are not necessarily the same as those of adults in other settings. The student newspaper at Hazelwood East High School, it said, was not a "forum for public expression" by students, and thus the censored students were not entitled to broad First Amendment protection. Therefore, the Court held that the school was not required to follow the standard established in Tinker v. Des Moines Independent Community School District, a case where students were suspended from school for wearing black arm bands in protest of the Vietnam War. In that 1969 case, the Supreme Court ruled that school officials could only limit student free expression when they could demonstrate that the expression in question would cause "a material and substantial disruption of school activities or an invasion of the rights of others."
In the "Hazelwood" decision, the Court said that a different test would apply to censorship by school officials of student expression in a school-sponsored activity such as a student newspaper that was not a public forum for student expression. When a school's decision to censor is "reasonably related to legitimate pedagogical concerns," it will be permissible. In other words, if a school can present a reasonable educational justification for its censorship, that censorship will be allowed.
The Court went on to say that Hazelwood East principal had acted reasonably in removing the stories in question. Upholding the censorship, the Court found that it was "not unreasonable" for the principal to have concluded that "frank talk" by students about their sexual history and use of birth control, even though the comments were not graphic, was "inappropriate in a school-sponsored publication distributed to 14-year-old freshmen . . . ".
In his sharp dissent, Justice Brennan said that he found the newspaper at Hazelwood East to be a "forum established to give students an opportunity to express their views . . .". He said that the Court should have applied the "Tinker" standard. Brennan said that the censorship at Hazelwood East "aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the 'mere'protection of students from sensitive topics."
Brennan characterized the school's censorship as indefensible: "Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from one to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees."
What the Decision Means
The Supreme Court's decision in Hazelwood School District v. Kuhlmeier struck a potentially devastating blow for scholastic journalism. The Court significantly cut back the First Amendment protections public high school students have been afforded for years. Even those who are not facing censorship problems today should be concerned about the implications of this decision for student journalists now and in the future. At some schools, censorship has become standard operating procedure; at any school it is a threat.
In 1974, the report of the Commission of Inquiry into High School Journalism, titled "Captive Voices," made some significant findings.
"Censorship is the fundamental cause of the triviality, innocuousness and uniformity that characterize the high school press," the report said. "Where a free, vigorous student press does exist, there is a healthy ferment of ideas and opinions with no indication of disruption or negative side effects on the educational experience of the school."
But the "Hazelwood" decision did leave some important legal protections against censorship intact. The following questions and answers will try to point out what those protections are.
Does the "Hazelwood" decision apply to all high school publications?
No. It only applies to school-sponsored student publications that are not public forums for expression by students. Underground, alternative and even extracurricular student publications still retain much stronger First Amendment protections.
The Court's opinion mentions three different criteria that it might look to for determining if a publication is school-sponsored and thus covered by the "Hazelwood" decision:
1) Is it supervised by a faculty member? 2) Was the publication designed to impart particular knowledge or skills to student participants or audiences? 3) Does the publication use the school's name or resources?
The first two criteria seem to be the most important. Under the second criteria, a publication that is an extracurricular activity rather than part of a class sounds as if it could still be covered by "Hazelwood." But in two federal court cases, judges have said that extracurricular publications may be beyond "Hazelwood's" reach.
In a case involving an adviser of a high school paper who was removed from his position for allowing the student newspaper to run an editorial critical of the movement to make Martin Luther King Jr.'s birthday a national holiday, the court said that because the publication was produced after school and not for class credit, the student journalists rights were "less limitable" than those of the students on the "Hazelwood" newspaper, even though both publications received school funding. And a federal district court in Connecticut ruled in March 1989 that a school-sponsored publication may not be "characterized as part of the school's curriculum" and thus censored under the "Hazelwood" standard if its history and method of operation show it was an independent student voice.
Even curricular school-sponsored student publications may still be entitled to strong First Amendment protection and exempt from "Hazelwood" if they are "public forums" for student expression. A public forum is created when school officials have "by policy or practice" opened a publication for unrestricted use by students. In the "Hazelwood" case, the Court said that it believed that the adviser to the newspaper had acted as "the final authority with respect to almost every aspect of the production and publication . . . including its content." (The dissenting justices said they thought the facts indicated otherwise.) That finding by the majority, combined with the fact that the school never explicitly labeled the student newspaper as a "forum" in its written policies or gave other explicit evidence of an intent to designate the newspaper as a forum, prompted the Court to say a forum did not exist.
"Hazelwood" was the first case ever in which a court found that a student newspaper did not constitute a forum for student expression. But the decision does not apply to student publications where student editors have clearly been given final authority over content decisions or where the school has explicitly designed a student publication as a forum.
Two post-"Hazelwood" cases have emphasized this notion. In Planned Parenthood of Southern Nevada v. Clark County School District, a federal appellate court upheld the right of school officials to limit pregnancy-related advertising in student publications, but only after it had determined that the publications in question had not been opened as public forums. The Connecticut case mentioned above also said that "[F]air ground for litigation exists as to [the student publication's] status ... as a 'public forum'never validly closed by school authorities."
In these cases where the publication is a public forum for student expression, school officials will only be allowed to censor when they can meet the "Tinker" standard, which offers much broader protections of student rights.
When is censorship by school officials not allowed?
"Hazelwood" expanded the authority of school officials to censor a student publication that is curricular and not a public forum, as the Court found the newspaper at Hazelwood East High School to be. School officials will be allowed to censor these kind of publications when they can show that their censorship is "reasonably related to legitimate pedagogical [educational] concerns." When the censorship has "no valid education purpose," it will still be prohibited.
School officials were not given limitless authority under "Hazelwood." They still have the burden of justifying their censorship under this "valid educational purpose" standard.
So when will they be able to do that? Considering that every major national organization of journalism educators in the country has said that censorship in and of itself is an educationally unsound practice, one might think that schools could never get away with censorship. However, the Supreme Court indicated otherwise.
The Court gave several examples in its decision of what might be censorable: material that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences." Potentially sensitive topics, such as "the existence of Santa Claus in an elementary school setting," "the particulars of teenage sexual activity in a high school setting," "speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the 'shared values of a civilized social order'" may also be censored. In addition, the Court said school officials can censor material that would "associate the school with anything other than neutrality on matters of political controversy."
These examples, frightening in their breadth and vagueness, suggest that school officials might be allowed to censor a great number of things simply because they disapprove of them. In fact, the Court said schools can demand of their student publications standards "higher than those demanded by some newspaper publishers . . . in the 'real'world."
However, a federal appellate court decision has indicated that this standard still imposes significant limitations on school officials'rights. School officials must be able to show that their censorship is "viewpoint neutral," that is, that they did not censor simply because they disagreed with a particular view students were expressing.
Is prior review allowed after "Hazelwood?"
The Court also made clear that after "Hazelwood," a school official can review non-forum, curricular student publications before they go to press, and probably can do so without specific written regulations. Prior review by school administrators has long been one of the most problematic and insidious forms of censorship. Public forum, extracurricular and underground publications are still protected from prior review unless elaborate procedural safeguards in written policies are present.
So did the Supreme Court overrule its decision in the "Tinker" case?
No. The Court reaffirmed the "Tinker" decision and the notion that neither students nor teachers lose their free expression rights at the schoolhouse gate. But it did seriously cut back on "Tinker's" application. By refusing to apply that decision to any situation in a public high school involving non-forum, curricular activity, the justices made "Tinker" a shadow of the protective shield for students it had once been.
For all the public forum, extra-curricular and underground publications, the "Tinker" standard is still the law. School officials can only censor those publications when they can demonstrate "a material and substantial disruption" of school activities or an invasion of the rights of other students.
Does the "Hazelwood" decision apply only to the student news media?
No. Any curricular, non-forum student activity that involves student expression could be affected. The Court specifically mentioned theatrical productions, and other student activities such as art shows could be affected.
Are there any other legal rights students might have to keep school officials from censoring?
An important caveat goes along with all of this information about the "Hazelwood" decision: the Supreme Court was only ruling on the protections the First Amendment to the United States Constitution offers to public high school students. They left open the possibility that other avenues of protection, including everything from state constitutional provisions or state laws to school board regulations, might still prevent school officials from censoring.
California, Massachusetts, Iowa, Colorado and Kansas have state laws that protect the free expression rights of students. Although these statutes are unique, a movement is afoot in other states to enact similar legislation. In addition, some states, such as Pennsylvania, have regulations established by their departments of education that may protect student rights.
What the Decision Has Done
Requests for assistance received by the Student Press Law Center (SPLC) from high school students and advisers around the country indicated that the "Hazelwood" decision has had at least one significant effect: a dramatic increase in the amount of censorship.
From 1988 to 1989, calls for help received by the Center increased by 12 percent. In the first four months of 1990, the number of calls was up over 170 percent from the same period in 1989. Student publications are reporting censorship of articles, editorials, and advertisements that were perceived as "controversial" or that might cast the school in a negative light. Advisers are reporting threats to their jobs if they refuse to follow school officials'orders to censor. And almost all student journalists and advisers said that they attributed the censorship at least in part to the "Hazelwood" decision.
Some Final Words
The "Hazelwood" decision is several years old, and still we are only beginning to see the first of the court cases interpreting it. Much of the continuing impact of the case will be determined by the cases that follow. Subscribe to and read the Student Press Law Center Report to keep informed about how the law develops. Whatever happens, the SPLC and other similar organizations remain sources of legal advice, assistance, and support for students who are facing censorship.
Courtesy of the Student Press Law Center, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209-2275.