Hazelwood Day of Action: Thirty Years is Too Many

BY HANK REICHMAN

January 2018 marks thirty years since the Hazelwood School District v. Kuhlmeier decision was handed down by the U.S. Supreme Court.  On Wednesday, January 31, the Student Press Law Center (SPLC) will sponsor the first Hazelwood Day of Action — “a day to raise awareness about the Hazelwood decision, publicize its destructive legacy for student media, and focus on the need for legislation to protect student journalists’ rights.”

While there has been much ballyhoo about the threat to free expression posed by students who seek to shut down guest speakers on college campuses, much less attention has been paid to the growing limitations being placed by college and university administrations on freedom of the student press, documented in a December 2016 report, “Threats to the Independence of Student Media,” published jointly by the AAUP, the SPLC, the College Media Association, and the National Coalition Against Censorship.  (See also “Student Media Under Fire” and “PODCAST: Threats to Student Media” on this blog.)  Those threats can, to a great extent, be traced back to the baleful influence of the Hazelwood ruling.

Between 1969 and 1988, students in U.S. public schools and colleges enjoyed substantial constitutionally protected freedom of expression.  Schools were governed by the Supreme Court’s 1969 ruling, Tinker v. Des Moines Independent Community School District, delivered by Justice Abe Fortas, which struck a balanced approach that allowed administrators to regulate speech only where “substantial” disruption was imminent, famously declaring that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  On January 13, 1988, however, the Supreme Court decided Hazelwood School District v. Kuhlmeier, unleashing what has been described as “a censorship tsunami” across public education at the K-12 level.

The principal of Hazelwood East High School outside St. Louis had censored from the student newspaper, Spectrum, a special teen issue section that included articles on teen pregnancy and the impact of divorce on students, which he found objectionable.  Reynolds contended that the stories lacked balance, and that the subject matter might be “inappropriate” for younger teens.  Members of the student staff sued.

The U.S District Court for the Eastern District of Missouri held that students’ First Amendment rights were not violated. The students appealed. The U.S. Court of Appeals for the Eighth Circuit reversed the District Court decision, primarily relying on the Supreme Court’s decision in Tinker.  But the Supreme Court reversed the Court of Appeals decision and held instead that a high school-sponsored newspaper produced as part of a class and without a “policy or practice” establishing it as a public forum for student expression could be censored in instances where school officials demonstrated a reasonable educational justification and where their censorship was viewpoint neutral.

By a 5-3 vote (with one seat vacant) the Court found that Reynolds did not violate the First Amendment in censoring the Spectrum.  According to the majority, the Tinker level of First Amendment protection no longer applied, and schools no longer needed to demonstrate that speech was disruptive to justify censoring it.  Rather, after Hazelwood it became legal to censor such “curricular” speech for any basis that is “reasonably related to legitimate pedagogical concerns.”

Justice William J. Brennan wrote a stirring dissent in which he predicted how schools would misuse their newfound censorship authority to the detriment of students’ welfare. Censorship, Justice Brennan wrote, “in no way furthers the curricular purposes of a student newspaper, unless one believes that the purpose of the school newspaper is to teach students that the press ought never report bad news, express unpopular views, or print a thought that might upset its sponsors.”  He concluded:

[U]nthinking 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. … The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.

The Tinker case began in 1965 when three Iowa students — Mary Beth Tinker, her brother John and John’s friend Chris Eckhardt — were suspended by school officials in Des Moines for wearing black armbands to school to protest the Vietnam War.  Mary Beth Tinker was 13-years-old, her brother was 15 and Chris was 16.  The school, anticipating the protest after the student newspaper published an article about it, had created a policy that prohibited the armbands.  On December 16, 1965, Mary Beth Tinker and Eckhardt wore their armbands to school; John wore his the following day.  All three were suspended until they agreed to return to school without wearing the armbands.  The three returned to school after their protest was to end, in January 1966.

With the help of the American Civil Liberties Union, the students took the school district to court for violating their First Amendment rights.  The case was decided by the Supreme Court in 1969, which reversed lower court decisions in favor of the school district.  The Court held that the students’ speech was protected and school officials may not punish or prohibit student speech unless they can clearly demonstrate that it will result in a material and substantial disruption of normal school activities or invade the rights of others. (To hear a recent interview with John and Mary Beth Tinker, lifelong activists for free expression, go here.)

Hazelwood changed the climate for free expression in public schools for the worse.  It reversed the presumption that, because freedom of expression needs “breathing space” to survive, any doubtful judgment calls should go in favor of the speaker and not the regulator.  Instead, since Hazelwood, court after court has given school censors the benefit of the every doubt –even where there is no possibility that the students’ speech could harm anybody.

A 2006 study published in the Alabama Law Review (“Censorship 101”) documented the litany of censorship and retaliation against journalism teachers that followed Hazelwood:  “An Indiana principal censored an accurate story about a girls’ tennis coach who stole $1,000 that players had paid for court time.  A New York administrator banned a true report that his school of 3,600 students contained only two functional restrooms.  A Florida principal fired the high school’s yearbook editor after she opposed his decision not to run a senior picture of a lesbian student who was wearing a tuxedo.”  The SPLC reports many other examples.

Every leading authority on journalism education agrees that the Hazelwood level of administrative control is an inferior method of teaching.  As the Society of Professional Journalists stated in a resolution calling on schools to enact more balanced policies, “it is well-documented the Hazelwood censorship clause impedes an educator’s ability to adequately instruct and train students in professional journalistic values and practices.”  The Journalism Education Association, which sets professional standards for the teaching of journalism, adopted a resolution in April 2010 that said:

As journalism teachers, we know our students learn more when they make publication choices and that prior review or restraint do not teach students to produce higher quality journalism. As journalism teachers, we know the only way to teach students to take responsibility for their decisions is to give them the responsibility to make those decisions freely.

Although Hazelwood began as a rule governing K-12 schools, it is now becoming the standard governing student media in higher education.  In 2011, a U.S. district court in Alabama applied Hazelwood and threw out the First Amendment claim of a 51-year-old graduate nursing student who claimed she was expelled for questioning the fairness of the school’s disciplinary and grading policies (Heenan v. Rhodes, M.D. Ala. 2010).  Four of the twelve federal appellate circuits – the 6th, 7th, 10th and 11th – now consider college students to have only the minimal Hazelwood level of First Amendment protection.  Only two circuits, the 1st and the 9th, have expressed doubt whether Hazelwood is the proper standard for higher education.

One critical case in which courts applied the Hazelwood standard to college media was Hosty v. Carter.  In November 2000, Dean Patricia Carter ordered the printer of Governor’s State University’s student newspaper, The Innovator, to cease printing unless an administrator read and approved the issue.  This came shortly after the editors wrote about their adviser’s dismissal, which administrators said was unethical.  Rather than comply with the new policy of prior review, which was against long-standing university policy, the editors stopped publication after the paper’s October 31, 2000 edition.  Editors Jeni Porche and Margaret Hosty filed a complaint in March 2001 seeking compensatory and punitive damages.  A federal district court rejected the university’s request to dismiss the case under Hazelwood, which Governor’s State appealed.  In 2003, a panel of the U.S. Court of Appeals for the Seventh Circuit also sided with the students, saying that Hazelwood was not the appropriate standard for censorship of college student media. The school asked for a rehearing en banc, which the court granted.

In June 2005, the full Seventh Circuit reversed the lower court, ruling for Governor’s State.  The decision was problematic on multiple levels, as Foundation for Individual Rights in Education (FIRE) executive director Greg Lukianoff argued at the time in a blistering column for the Boston Globe:

In Hosty, the Seventh Circuit Court of Appeals ruled that a dean who demanded prepublication review of a student newspaper at Governors’ State University in Illinois—because the administration did not like its content—is not liable for her brazen act of censorship.  If this were all the decision said, it would still be wrong; legal scholars have long understood that free speech means, at a minimum, that state officials cannot require publications to get state approval before publishing.  Then, perhaps unsatisfied with ignoring only one principle of First Amendment law, the court decided that Hazelwood v. Kuhlmeier (1988), in which the Supreme Court ruled that a public high school had substantial control over the content of a student newspaper produced as part of a journalism class, also applied to universities.

Applying Hazelwood to colleges ignores more than 30 years of court decisions granting strong protection to collegiate student media.  It disregards the fact that 99 percent of college students are adults, as opposed to high school, where most are minors.  It discredits the special importance of academic freedom at universities.  It dismisses the idea that students’ speech should not be as restricted in extracurriculars as it is in the classroom.  And in Hosty, it discounts the fact the college contractually promised not to censor the paper!

Furthermore, the opinion held that student groups could be considered arms of the administration merely because they receive student fees.  This contradicts the Supreme Court’s decision in Board of Regents v. Southworth (2000), which ruled that student fees are not considered “the university’s money” to fund only viewpoints it likes.  Whereas student newspapers could once assume they had independence and strong free speech rights, now the status of any group that receives any benefit from its university (likely all of them) is in question.  If student groups’ rights are no longer presumed, and the only way students can be sure their group has rights is to prove that in court, students’ rights mean little indeed.

Sadly, in February 2006 the U.S. Supreme Court declined to hear an appeal by the student journalists, leaving the Seventh Circuit ruling in Hosty to govern student media throughout the circuit, which includes the states of Illinois, Indiana, and Wisconsin.

Hence, as the 2016 report by the AAUP and other organizations put it, “Student journalists and their faculty advisers work in a gray zone of legal uncertainty.  While the Supreme Court has been generally protective of First Amendment rights at public colleges and universities, the justices have never squarely addressed whether college and university journalists have rights comparable to those of nonstudent professionals or whether they have only the minimal rights afforded to high school journalists . . .”

The report added: “Although a handful of states have clarified and fortified the rights of college and university journalists by way of state statute, few extend that enhanced protection to faculty advisers.  While all public employees are at heightened risk of retaliation as a result of court rulings diminishing protection for speech in the course of official duties, media advisers are in special peril because of the intrinsically adversarial role between watchdog journalists and government.”

New Voices USA, a project of the SPLC, is a student-powered grassroots movement that has proposed model legislation to protect student journalists and their faculty advisors.  The proposal would restore the Tinker standard of student expression in public high schools.  So far, thirteen states have enacted this sort of protection.  The bill would also protect public colleges from dangerous court interpretations that apply the Hazelwood standard to higher education.  So far legislation of this sort has passed in California, Illinois, North Dakota, Maryland, and Oregon.  California’s Leonard Law, passed in 1992 and amended in 2006, gave private college students the same rights as their public counterparts.

The Hazelwood Day of Action will kick off a year of activities and collaborations.  To learn more, render your support, or get involved go to  http://www.splc.org/page/hazelwood-day-of-action

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