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Hazelwood School District v. Kuhlmeier n CHECKLIST: Detailed steps for fighting

Hazelwood School District v. Kuhlmeier n CHECKLIST: Detailed steps for fighting censorship … page 8 A complete guide to the Supreme Court decision I n January 1988, the United States Supreme Court handed down its opinion in Hazelwood School Dis trict v. Kuhlmeier.1 The decision upheld the authority of public high school administrators at Hazelwood East High School in suburban St. Louis, Mo., to censor stories concerning teen pregnancy and the effects of divorce on children from a school-sponsored student newspaper. Hazelwood was in dramatic contrast to court decisions from across the country handed down over the previous two decades that had given student journalists extensive First Amendment protections. Although the Supreme Court was only dealing with a student newspaper in Hazelwood, all public high school student news and information media have been affected. Student newspapers, yearbooks and literary magazines as well as online student media and non-broadcast radio and TV programs can use the information in this guide. n MODEL POLICY: Guidelines to protect student media … page 10 A Student Press Law Center White Paper ©2008 Student Press Law Center 2 Student Press Law Center • www.splc.org Probably the most significant aspect of the Hazelwood decision was the emphasis it placed on determining whether a student publication is or is not a “public forum” for student expression. As a growing number of lower court cases have confirmed, student media that qualify as public forums receive greater First Amendment protection than non-public fo rum student media and are not subject to Hazelwood’s censorship standards. The de termination of forum status may not always be clear, but this guide points out the factors that a court is likely to consider. Recent court decisions have also helped to more clearly define what types of admin istrative censorship Hazelwood allows and what types it does not. While the Hazelwood standard remains far from clear, these cases provide some useful guidance about where the outer boundaries lie. Please note one thing above all else: All public high school students still have impor tant First Amendment protections that limit the ability of school officials to restrict what students publish or to punish them for what they say or write. Public school officials — no matter what they may say or think — do not have an unlimited license to censor. What the Decision Says Hazelwood School District v. Kuhlmeier was decided on January 13, 1988. The 5-3 vote reversed the decision of the U.S. 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 ma jority 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.2 Justice White began by noting that the rights of students in public schools are not necessarily the same as those of adults in other settings. White also pointed to a stu dent speech decision the Court had handed down two years earlier, Bethel School District No. 403 v. Fraser, 3 where it found that even within the school, a student’s First Amend ment rights could vary depending on the type of expression involved and where and how it took place. In Hazelwood, the Court found that the Spectrum, the student newspaper at Hazel wood East High School, which was produced as part of a journalism class, was not a “forum for public expression” by students.4 There fore, the Court held that the school was not required to follow the standard established in Tinker v. Des Moines Independent Commu nity School District,5 a 1969 Supreme Court case that struck down as unconstitutional a school’s suspension of students who had worn black armbands to protest the Vietnam War. In Tinker, the Court said school offi cials could only limit student speech when they could demonstrate that it would cause a material and substantial disruption of school activities or an invasion of the rights of oth ers. The Hazelwood majority noted that un like the school-sponsored Spectrum, however, the armbands worn by the Tinker students constituted independent, non-school-spon sored student speech. This distinction be tween school-sponsored and non-school- sponsored student speech was one that the Court had not directly made before. The Ha zelwood Court went on to say that a different category of student speech allowed for the application of a different legal standard. From that point on, the Court said, a new — and less protective — First Amend ment test could be used to analyze adminis trative censorship of school-sponsored speech that occurred in a non-public forum. Hence forth, the Court said, school officials could censor such speech if they could show it was “reasonably related to legitimate pedagogical concerns.”6 In other words, if a school could present a reasonable educational justification for its censorship, it would be allowed. Applying its new standard, the Court found that the principal at Hazelwood East had acted lawfully in censoring the newspa per. The Court found that it was “not unrea sonable” 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 “inap propriate in a school-sponsored publication distributed to 14-year-old freshmen....”7 In his sharp dissent, Justice Brennan said he found the newspaper at Hazelwood East to be a “forum established to give students an opportunity to express their views....”8 He said the Court should have applied the Tinker standard. Brennan said the censorship “aptly illustrates how readily school officials (and courts) can camouflage viewpoint dis crimination as the ‘mere’ protection of stu dents from sensitive topics.”9 “Such unthinking contempt for indi vidual rights is intolerable from any state official,” Brennan continued. “It is particu larly 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.”10 What the Decision Means The Hazelwood decision struck a serious blow to scholastic journalism. The Court significantly cut back the First Amendment protections public high school students had been afforded for years. At some schools, censorship has become standard operating procedure; at any school it remains an ever- present 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 dis ruption or negative side effects on the educa tional experience of the school.”11 If a free student press encourages active learning and civic participation by students, as Captive Voices found, Hazelwood was clear ly a step backward and the decision, which one commentator has described as a poten tial “censorship tsunami,”12 has been roundly criticized by journalism education groups. While it is impossible to sugarcoat the negative impact Hazelwood has had on stu dent media, the Court left some important safeguards against censorship intact. The fol lowing discussion will address those and other common questions raised by the decision. Note to students at private schools 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 not legally af fected by the decision. They must rely on school policies or state law to protect their free expres sion rights. For more information, see the SPLC’s Legal Guide for the Private School Press.47 SPLC Guide to Hazelwood www.splc.org • Student Press Law Center 3 Does Hazelwood apply only to student news media? No. Any curricular, non-forum student activity that involves student expression is af fected. The Court specifically mentioned the atrical productions, and over the years lower courts have cited Hazelwood in cases involv ing other student activities such as art shows, debates and academic presentations.13 Does Hazelwood apply to all high school student media? No. It only applies to: (1) school-spon sored student media that are (2) not public forums for expression by students. Curricu lar and extracurricular student media that qualify as public forums, as well as indepen dently produced (non-school-sponsored) “underground” student publications — even if distributed on school grounds — still re tain much stronger First Amendment protec tions.14 Does Hazelwood apply to off-campus, private expression? No. Hazelwood applies only to school- sponsored student expression. Independent student speech that takes place entirely out side of school — such as off-campus e-mail, a private Web site or social networking site, or a flier for a non-school organization published and distributed outside of school — is not subject to Hazelwood’s restrictions. Except in extraordinary cases, such expressive activ ity retains the highest level of First Amend ment protection and school administrators will generally have no authority to restrict such content or punish students involved. Of course, as always, students remain responsible for everything uploads/S4/ hazelwood-guide.pdf