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Analysis of Hazelwood's impact on the student press

By Jeremy Leaming

It has been a decade since the Supreme Court significantly changed the practices of high school newspapers in this country by granting public school administrators greater authority to determine what kinds of student speech should be afforded a school audience.1 Before the 1988 Supreme Court decision, however, public school students regularly faced school-sponsored censorship of their ideas. Indeed, censorship of student voices during the sixties and seventies rose to such a level that in 1974 a Commission of Inquiry into High School Journalism was created by the Robert F. Kennedy Memorial to determine whether First Amendment rights of public school students were properly protected.

The commission's 22 members examined — through public hearings, consultations, surveys, content analysis and research — high school journalism.2 The commission undertook the study with the belief and "knowledge that high schools represent a significant contribution as well as an unfulfilled potential in America life."3

The principles that led to the commission's formation and gave direction to its study centered on an appreciation for and an understanding of the First Amendment. Members of the commission knew that students' appreciation for the First Amendment would continue to suffer in an atmosphere where teachers would hail the values of the First Amendment and in the same instance suppress speech.

After studying several aspects of high school journalism, especially the impact of censorship, the commission issued a report in 1974, concluding among other things that "any censorship of journalism is a dangerous thing."4

An examination of the brief summary of the specific commission findings on high school censorship provides a good overview of the state of high school journalism before the Hazelwood decision. According to the commission's report:

1. Censorship and the systematic lack of freedom to engage in open, responsible journalism characterize high school journalism. Unconstitutional restraints are so deeply embedded in high school journalism so as to overshadow its achievements.

2. Censorship of journalism is a matter of policy, stated or implied, in all areas of the country, although in isolated schools students enjoy a relatively free press.

3. Censorship persists even where litigation or administrative action has destroyed the legal foundation of censorship.

4. Repressive policies are used against school-oriented media published off campus as well as within school.

5. Policies of censorship apply regardless of whether the material is substantive or controversial.

6. Even advisers or journalism teachers who in private favor a free student press often succumb to bureaucratic and community pressures to censor school newspapers.

7. Censorship generally is accepted by students, teachers, and administrators as a routine part of the school process.

8. Self-censorship, the result of years of unconstitutional administrative and faculty censorship, has created passivity among students and made then cynical about the guarantees of a free press under the First Amendment.

9. Fear of reprisals and unpleasantness, as well as the lack of a tradition of an independent high school press, remain the basic forces behind self-censorship.

10. Censorship is the fundamental cause of triviality, innocuousness, and uniformity that characterize the high school press.

11. 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.

12. The professional news media does not take seriously the First Amendment problems of high school journalists and does little to help protect the press rights of students.5

The findings represented a substantial indictment against the state of high school journalism in America. The members of the Commission hoped that their report would foster stronger support for high school students' First Amendment rights. It appears, however, that because of Hazelwood, the commission's goals remain unrealized.

Whether the Supreme Court's Hazelwood decision has actually spurred more instances of censorship is difficult if not impossible to document. Mary Arnold, a University of Iowa journalism professor and the executive secretary for the Iowa High School Press Association, notes censorship is nothing new to public education. "There really is no way to document whether censorship has in fact increased since the Supreme Court's Hazelwood decision," Arnold said. "In fact, many scholars try to start with such a premise but their outcomes ultimately prove disappointing, because really censorship has always been there."

Mike Heaston, a lawyer for the Student Press Law Center, the only national legal assistance agency devoted to protecting and educating the student press agrees with Arnold's assessment that it is hard to document the amount of censorship taking place on high school campuses. Nonetheless, Heaston said the number of calls the center receives from students seeking help against threats of censorship has increased every year since 1988. In the year the Supreme Court handed down Hazelwood, the Student Press Law Center received a little over a hundred requests for legal assistance from high school journalists. By 1996, the SPLC reported a record number of requests by high school journalists for legal assistance. According to the SPLC, most of the students (37%) who called the Center sought help against threats of censorship.6

The Supreme Court's decision, however, did significantly lower the First Amendment hurdle that school officials were once forced to clear before legally stifling student speech. For years prior to Hazelwood, public school officials had to prove a substantial disruption of school activities was imminent before they could legally muzzle student speech. In the wake of Hazelwood, however, public school officials merely have to show a legitimate educational excuse before suppressing student speech.

Court rulings before Hazelwood

Before students in an Iowa school district decided to wear black arm bands to protest the war in Vietnam, students "were presumed to have few constitutional rights of any kind. They were regarded as junior or second-class people and were told it was better to be seen and not heard," said Don R. Pember, author of Mass Media Law. Only seven of the more than 18,000 students in the Des Moines school system wore black arm bands. School officials, however, suspended the students for their silent, passive expression of opinion, unaccompanied by any disorder or disturbance.7 Thereafter, the students sought an injunction from the United States District Court against the school officials.8 Although the District Court recognized "that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment,"9 it also held "that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands."10

The Supreme Court, however, reversed the district court's decision. Justice Abe Fortas wrote "In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under our Constitution."11 The court upheld the rights of students to wear the armbands as a "symbolic act" protected by the First Amendment.

It is Justice Hugo Black's dissent, however, that resembles the current law regarding the student press. Black concluded that "It is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases."12 According to Black, students are sent to public schools to learn and not to express themselves on issues of politics "or any other views to educate and inform the public."13 For Black, the ability of teachers and administrators to discipline students and control the education environment was the only way for "our children to be good citizens—to be better citizens."14 Twenty some years later, the justices in Hazelwood v. Kuhlmeier started with the proposition from the Tinker majority that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."15 Nonetheless, as will be discussed later, the majority in Hazelwood followed Black's lead and gave school administrators the tools to exercise more control over the educational environment of the young.

Following the majority's ruling in Tinker, lower courts recognized that an official school newspaper is a forum for student expression entitled to First Amendment protection.16 School administrators continued to argue, however, before courts that student publications should be considered educational tools and not merely public forums. County school officials in Virginia used the argument to support the suppression of a student report about unsafe sex practices at a Hayfield county school.17

The students sought a court injunction to prevent school officials from keeping the report out of The Farm News, the school newspaper. Hayfield school officials told the court that the student newspaper was part of the school's curriculum and not a public forum freely open to all student ideas. The Court, however, noted that although the school officials "may have particular proprietary interest in a publication that legitimately precludes it from being a vehicle for First Amendment expression, it may not foreclose constitutional scrutiny by mere labeling."18

Thus, the Court found that since The Farm News was not an official school publication, it was protected by the First Amendment.

Jann Wesolek, editor of her high school newspaper, also faced school officials determined to control content of the paper. Wesolek had written an article on planned parenthood and was told by her adviser that the article was not suited for publication in the high school newspaper. Wesolek thought the subject would arouse interest among the students. It was a thought that when transformed into action resulted in a censorship controversy and a federal court ruling affirming the free press rights of high school journalists.19

After much discussion with her adviser and school principal, Wesolek rewrote the article, toning it down in hopes of getting it approved for publication. Both the adviser and principal, however, were adamant in their decision not to permit Wesolek to publish an article about planned parenthood in the school's newspaper. At this point, Wesolek consulted an attorney. When her adviser learned of this, she said, "Go ahead, it won't do you any good."20 The adviser informed Wesolek that the only way she would get her article printed in the school newspaper would be by going to court. It was then that Wesolek authorized her attorney to file suit in U.S. district in Indiana.21

The case was decided in October, 1973, by District Judge George Beamer who applied First Amendment rights protecting journalists on official, in-school newspapers from prior restraint by school officials. In finding for Wesolek, Beamer noted that "The school corporation shall not prohibit publication of articles in official school newspapers on the basis of the subject matter or terminology used, unless the article or terminology used is obscene, libelous or disrupts school activities."22

The Wesolek decision secured a court ruling that emphasized a constitutional basis for free expression. It provided, until Hazelwood, the basis for determining whether articles should be kept from high school newspapers. So long as articles were not obscene, libelous or potentially disruptive, student articles were permitted, at least by those who supported First Amendment rights for the high school press. Despite Wesolek's situation and lower court rulings, however, high school journalists all across the country continued to face attempts by school officials to suppress controversial topics.

While Wesolek was fighting for her right to publish, several students in Chicago school districts were suspended for work on "underground" newspapers and for circulating a petition. Burt Fujishima and Richard Peluso, seniors at Lane Technical High School, were suspended for distributing 350 copies of "The Cosmic Frog," an "underground" newspaper they and other students published.23

At another Chicago high school, Robert Balanoff, a sophomore, was suspended for giving another student an unsigned copy of a petition calling for "teach-ins" concerning the war in Vietnam.24 All three students were suspended because they violated a Chicago Board of Education rule which prohibited students from distributing on campus any books, tracts or other publications without permission of the general superintendent of schools.25 The three students jointly brought a suit in district court against the board of education in attempt to have the suspensions expunged from their records. The district judge ordered the schools to expunge the records of the students' suspensions, but did not rule on the constitutionality of the board of education's rule that brought about the suspensions.26

The students then appealed the decision seeking a permanent injunction against the board's rule. The school board claimed the rule was constitutionally permissible because it did not require approval of the content of a publication before distribution. The appellate court disagreed and instead found that the language of the rule mandated that the superintendent see all material before determining whether such could in fact be disseminated on campus.27 Therefore, the appellate court said, the school's rule was unconstitutional as a prior restraint in violation of the First Amendment. Additionally, the court cited the majority opinion of Tinker, noting that absent a showing of material and substantial interference with the requirements of school discipline, schools may not restrain the full First Amendment rights of their students.28

Though the appeals court declared the school board's rule unconstitutional, a year later two other students at Chicago's Lane Technical High School were threatened with suspension under the same rule. Demetrius Hopkins and David Rabin published and distributed at Lane Technical an underground newspaper, The Oppressed. They published the paper because they could not get controversial issues published in the high school newspaper.

After The Oppressed appeared in their school, Hopkins and Rabin were told they would be suspended from school. School officials cited the Chicago Board of Education rule.29 Hopkins and Rabin then learned that a year earlier two students were suspended for violating the same rule. Responding to the threat of suspension, they secured a restraining order from a U.S. District Court after they filed suit against the principal, assistant principal and board of education. The board and school authorities agreed to an out-of-court settlement. The settlement permitted the two to continue publishing The Oppressed and provided that neither they nor others associated with the paper would be punished for anything related to the paper.30

Janice Fuhrman's situation, although not resolved by a court, is probably more representative of the manner in which threats of censorship are often handled. Fuhrman, editor of her high school newspaper, the Hornet's Buzz, editorially criticized the principal, Stanley Onderdonk, for banning from the Novato (California) High School campus an issue of "Free Youth," an underground newspaper.31

Fuhrman, a junior at the time, was summoned to the principal's office. Onderdonk told Fuhrman her article was libelous and ordered her off the school grounds. She went immediately to a lawyer who was a friend of the family and explained her encounter with the principal. The lawyer advised Fuhrman that her constitutional rights had been violated. Instead of resorting to legal action, however, the lawyer suggested taking the matter to the area's news media. He believed that with appropriate exposure the principal was likely to change his mind about expelling Fuhrman. And that is exactly what happened. The following day, The San Francisco Chronicle ran an article about the incident. Onderdonk called Fuhrman's father and said the whole thing was a misunderstanding. "I didn't mean to suspend her," Onderdonk said. "We want her back in school."32

Until Hazelwood, federal and state court rulings gave the editors of Captive Voices, a book which detailed much of the Commission of Inquiry into High School Journalism study, enough confidence to conclude "That the First Amendment is no longer in question. The Supreme Court, in Tinker, has held that students do not lose their right to free expression under the First Amendment to the Constitution when they enter school." Even the argument advanced by some school officials that they should control the content of high school newspapers because the school is publisher had, prior to Hazelwood and except for Justice Black's dissent in Tinker, been consistently rejected by the courts.33 A federal judge in Massachusetts summed up the financing issue when he ruled that "the state is not necessarily the unrestrained master of what it creates and fosters."

Thus in cases concerning school-supported publications or the use of school facilities, courts had refused to recognize as permissible any regulation infringing on free speech when not related to the maintenance of order and discipline within the school.

Summary of Court rulings before Hazelwood

Case law prior to Hazelwood, suggests that courts interpreted First Amendment rights for high school journalists in a broad sense. From Tinker on, the courts upheld the rights of students to publish their newspapers without censorship.34 Though courts consistently protected First Amendment rights of students, many high school administrators continued to use their positions to intimidate students and advisers. Moreover, students often gave in to censorship either because they were unaware of their rights or unable to invest in legal resources. Also, school officials were often supported by school board members and community members who believed that high school students were too young—and too irresponsible—to examine controversial topics, like sex and drugs.

Prior to Tinker, "The Court (Supreme Court) did not initially acknowledge that students possessed rights. The Court instead supported parents' rights to educate their children as they wished."35 Throughout this century, the U.S. Supreme Court endorsed practices which would be considered extreme today. The Supreme Court did not render a significant decision in this area until the Warren Court opened the floodgates with Tinker.36 Thus, Tinker quickly became a landmark case, and subsequent cases — in lower courts as well as the Supreme Court — were decided on its legal theory.

In the 1990 First Amendment Handbook, James L. Swanwon and Christian L. Castle state that "The evolving constitutional doctrine of students' expressive rights reveals a basic philosophical tension between two views of the school's role in education. The first view is that schools should indoctrinate pupils by teaching majoritarian values and the limits of socially appropriate behavior with limited free expression. The second view is that schools should provide a forum for intellectual experimentation which mildly inculcates social values by encouraging free expression." When student newspapers are examined in the light of these competing values, it is not difficult to see why even well-intentioned school administrators seek to control content of school newspapers.

Thus, although Tinker and subsequent decisions did much to encourage freedom of expression of high school students, there remained questions as to whether high school newspapers were public forums or whether they were actually a part of the curriculum and thus subject to school officials' control. Against this legal and philosophical backdrop the Supreme Court took up the case of three high school staff members on the Spectrum, a student-produced newspaper at Hazelwood East High School in St. Louis, Missouri.

The Hazelwood decision

The Spectrum adviser, Howard Emerson, who watched closely over the production, served as managing editor. Emerson selected articles, assigned reporters, reviewed articles edited by students, designed the paper and took care of finances. He also submitted page proofs to Robert Reynolds, the principal, for his review before publication.37

When Emerson submitted proofs for the May 13, 1984, issue of Spectrum, Reynolds objected to two articles. One article focused on the impact of parents' divorce on students. The report included quotes from students whose parents had divorced. The other report centered on teenage pregnancy and used fictitious names to refer to three pregnant students.38 According to Reynolds, since there were only about 10 students at Hazelwood East who were pregnant that year, identification of the students would be too easy. He also objected to the article's description of promiscuity and birth control, insisting they were not suitable subjects for the school's students.39 Reynolds concluded that the divorce story did not meet standards of fair journalism because a student in the story accused her father of being inattentive and abusive, but the father had not been given an opportunity to respond. Reynolds discussed his concerns about the articles with Emerson. Instead of asking Emerson to edit the stories, Reynolds simply ordered the two pages which the stories appeared to be removed from the paper.40

Three Spectrum staff members brought suit several months later in a U.S. District Court. They sought a declaration that Reynolds's actions violated their First Amendment right of freedom of speech, an injunction barring Reynolds from further censorship and monetary damages.41 One year after Reynolds withheld the student articles, the United States District Court for the Eastern District of Missouri denied the students' money damages and declared that no constitutional violation had occurred. The district court ruled that the Spectrum was part of the curriculum and not a public forum.42 Thus, the district court sanctioned Reynolds's decision, upholding it as "permissible administrative regulation of school-sponsored speech."43 The court, however, noted that school officials "do not have unfettered discretion and must ground their decisions on a reasonable basis . . . based on the facts before them at the time of the conduct in question."44 Additionally, the court focused on what might constitute an invasion of the rights of others. Finally, the District Court held that since "Spectrum" was part of the curriculum, Reynolds was entitled to delete the article on divorce because it did not meet acceptable standards of journalistic fairness.

The students appealed the district court's decision to the 8th U.S. Circuit Court of Appeals. The 8th Circuit reversed the district court's decision. It held that Spectrum was a public forum "intended to be and operated as a conduit for student viewpoint."45 Thus, the 8th Circuit concluded that Spectrum's status as a public forum precluded school officials from censoring its content except when "necessary to avoid material and substantial interference with the school work or discipline . . . or the rights of others."46

The Hazelwood School District appealed the decision to the Supreme Court.

The Supreme Court reversed the 8th Circuit and followed the dissenting opinion in Tinker. Justice Byron White writing for five justices first reviewed historical limits on student constitutional rights. After reaffirming Tinker's declaration that students do not "shed their constitutional rights at the schoolhouse gate," the Court noted that students' rights have never equaled those of adults, and that school officials need not tolerate expression inconsistent with the basic educational mission and structure of the school.47

The Court's majority then took up the question of whether Spectrum could be a constitutionally protected public forum. The majority stated that public schools "do not possess all of the attributes of streets, parks, and other traditional public forums that have been used for purposes of assembly, communicating thoughts between citizens, and discussing questions."48 Therefore, the majority noted that the only way school facilities could be deemed public forums is if school authorities, have by policy and practice, opened those facilities for the general public. The Court in Hazelwood, however, did not find enough evidence to support the claim that "Spectrum" was created by school officials as a public forum.49 Therefore, the Court concluded that the Tinker standards would not apply and that the school officials "could regulate the paper in any reasonable manner."50

In his dissenting opinion, in Tinker, Justice Hugo Black argued that school officials had a duty to ensure discipline — not to affirmatively promote student speech.51 Instead of following the majority opinion in Tinker, Justice White took more from Black's dissent in finding that "Educators are entitled to exercise greater control over . . . student expression to assure that participants learn whatever the activity is designed to teach. . ."52 Furthermore, Justice White, noted that the educator's control of student expression is needed to ensure that the "views of the individual speaker are not erroneously attributed to the school."53 Based on this line of thinking, the Court went on to make the following findings:

  1. It analogized the school to a newspaper publisher entitled to exercise control over material to which it lends facilities and resources.


  2. It stated schools could, because of their educational mission, set higher standards for student publications that exist in the "real world."55
  3. It noted that schools must be given the discretion to determine when published material is inappropriate for immature students. "To abrogate that discretion would reduce the school's ability to teach limits of socially appropriate behavior."56
  4. It reaffirmed its commitment to giving substantial deference in free speech matters to school officials rather than courts. To achieve these objectives, the court held "that educators 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 actions are reasonably related to legitimate pedagogical concerns."57 In other words, as long as school officials can demonstrate that their reasons for censoring student expression is related to educational concerns, then the First Amendment rights of students can be abrogated. Mark Goodman, executive director for the Student Press Law Center, said that this reasoning by the Court "dramatically lowered the First Amendment hurdle that lower courts had said officials had to overcome before they could legally censor student publications."58
  5. It found that Reynolds's decision to delete the articles could be justified both by his concern for sensitive topics in the high school environment and his feeling that the articles did not meet proper standards of journalism. These judgments fell within Reynolds's authority to create a basic curriculum.

Justice William Brennan, in dissent, noted that the majority's opinion "denudes high school students of much of the First Amendment protection that Tinker itself prescribed" in order to uphold the "brutal" censorship of the Hazelwood principal.59 Brennan did not address the issue of whether school officials had intentionally created a public forum; instead, he focused on Tinker's traditional interpretation and asserted that it should apply to all student expression. The principal points he made in dissent were:

  1. That the majority's separation of student speech into sponsored and non-sponsored speech was specious, because it ignored the court's recent application of Tinker in Bethal v. Fraser.60 If Tinker could be applied in Fraser, then it could also have been used in Hazelwood. Instead, Brennan stated that the reasoning of the majority narrowed the Tinker decision to censorship of student expression that happens to occur on school grounds. When censorship arises in the context of school-sponsored activities, then Hazelwood would apply. Brennan also noted that the Hazelwood situation was the first time the Court had made a distinction between personal and school-sponsored speech.61
  2. Brennan feared the majority's holding would "permit administrators to censor any expression with little justification." Indeed, for Brennan, if the only justification for censorship was incompatibility with the school's educational message, then our public schools would be eventually converted into "enclaves of totalitarianism."62
  3. He noted that the school could disassociate itself from ideas in the school's newspaper using means less restrictive than censorship. He suggested printing disclaimers, publishing opposing viewpoints, or limiting the paper's content to certain educational topics.63

Brennan, in conclusion, stated that instead of stressing the importance diverse ideas, the majority opinion would teach students to discount "important principles of our government as mere platitudes."64

In grappling with the role of public schools in society, federal and state courts often examine and weigh values, and the Hazelwood Court was no exception. The majority in Hazelwood supported Justice Hugo Black's dissent in Tinker that held that the degree of permissible school-imposed censorship of student expression varies with the student's age. The Court did not, however, give a clear line dividing "children" from "adults" and left open the question of whether children should be classified into subgroups by age for constitutional purposes.

The Court also resurrected a constitutional presumption, based on Black's dissent in Tinker, that high school administrators validly exercise their authority in supervising curricular activities. And finally, it determined that the school's role as publisher removes school-sponsored student media from the protected class of "public forums," thereby freeing school officials from the limitations of Tinker.

A State's Reactions to the Hazelwood Decision

In 1976 California state lawmakers passed a law intending to give high school journalism students greater protection from school-sponsored censorship.65 The law was challenged in a California federal appeals court just 16 days after Hazelwood.

David Leeb served as editor of the school newspaper at Rancho Alamitos High School in southern California. He published an April Fool's Day spoof issue for which he wrote an article entitled "Nude Photos: Girls of Rancho."66 In the article, Leeb wrote that Playboy magazine planned to feature nude pictures of female Rancho students in an upcoming issue. Adjacent to the article was a picture purportedly showing five unnamed but identifiable Rancho female students lined up outside the school darkroom awaiting their turns to sign up for a photo session. The school's principal, James Delong, was able to identify each student in the photo.67 Delong then talked with the father of one of the girls pictured. The father, according to Delong, expressed shock and outrage and threatened legal action. On April 2, DeLong stopped distribution of the paper. Leeb challenged the constitutionality of DeLong's action, charging prior restraint violated the California Constitution.68

The Court of Appeals found that since California law gives greater constitutional protection to students than does the First Amendment, Hazelwood was inapplicable; only sec. 48907 and state court decisions control free expression questions involving California students.69 The court relied on an earlier case (Bailey v. Loggins), in which the California Supreme Court ruled that content restrictions on state prison newspapers violate the State's Constitution.70 The Bailey Court had rejected the notion that the State, acting as publisher of the prison newspaper, could exercise regulation as stringent as a private publisher. It also found that "the prison's regulations indicated an intent to open the papers as a limited public forum."71 In taking up the matter of Leeb, the Court of Appeals held that the school paper, like the one in Bailey, was a limited public forum. Therefore, no prior restraint could occur, unless a plaintiff would have a clear chance of prevailing in an action against the school. Aware that such a standard presents difficulties, however, the court offered further guidance by noting that to censor, schools should determine whether the publication would be likely to harm the reputation of another or hold that person up to shame, ridicule, or humiliation. By articulating a narrow standard, the court sought to avoid forcing schools into the "labyrinth of modern defamation law."

What makes Leeb interesting is that the facts are remarkably similar to those of Hazelwood. In both instances, students were not identified but were recognized by school administrators. Also, in both situations, the courts considered adoption of a tort liability standard for restricting speech. But although the Hazelwood majority rejected such a test, the Fourth District adopted one, acknowledging the liberal mandate of section 48907 and balancing student expression with the plaintiff's privacy rights.

Alexander Perumal, a student at El Toro High School in Orange County, California, formed a student group called New Life. The group was organized to provide a forum for students to engage in Bible study and prayer during school. He and other student members gathered informally outside during lunch break to study the Bible and pray. The group's meetings were publicly supported by a local citizens' Christian Evangelical organization. Perumal requested permission to distribute a flyer to students giving the time of New Life meetings. His request was denied.

Frederick Read, a student leader of a New Life chapter at Mission Viejo High School, made a similar request of his principal. He asked to have a paid New Life advertisement placed in the school's yearbook. The principal denied his request. Perumal and Read petitioned for a writ of mandate in Superior Court, seeking an order commanding the school district to allow distribution of the flyers and permit publication of the yearbook advertisement. When the petition was denied without comment, Perumal and Read appealed.72

The state Appellate Court affirmed the Superior Court's decision, stating that the wall between church and state could not be chipped away by California's section 48907.73 According to the Appellate Court although section 48907 extended free speech rights to students, it also permitted administrators to regulate student speech under some circumstances.74

California has created standards of interpretation of the First Amendment as applied to high school students which are broader and more protective than Hazelwood. California's standards permit restricting student expression only if the speech fits into specific categories. Libelous, slanderous, or obscene speech are prohibited. Also, material which incites students to break laws, disobey school rules or disrupt school activities may be restrained. The Hazelwood decision, however, permits suppression of student speech if the administrator's actions are supported by any reasonable educational purpose. In addition to defining what topics may be barred, the California standard flatly prohibits any prior restraint imposed to bar speech not otherwise proscribed by statute. Hazelwood, by contrast, allows prior restraint and any other regulation provided it serves a legitimate educational purpose.

The Hazelwood decision only stated the limits of First Amendment protections; it left open the possibility that states, like California, could create their own laws or regulations that provide journalists with greater protection. After Hazelwood, a total of 28 legislatures debated such laws, and five others besides California have passed them: Arkansas, Colorado, Iowa, Kansas and Massachusetts.75 Like California's section 48907, the laws in those states allow students to express themselves freely in school unless school officials can demonstrate it is libelous, obscene or will create a substantial disruption.

Attacks against student expression

Though some states and courts have granted broader First Amendment rights to students, censorship of student expression, mainly in the form of publications, has only increased since Hazelwood.76 It appears, as Justice Brennan suggested, that Hazelwood has provided educators with much simpler means to legally stifle student discussion of topics deemed inappropriate for the high school setting.

Not surprisingly, sex remains a topic often suppressed by school officials. Part of the reason can be attributed to parents who consistently urge educators to keep sex education out of the curriculum.77 Moreover, for many school officials, their commitment is not to truth or to teaching students journalistic principles, but to create a positive image of the school, no matter how unrealistic that image is. Below are some recent examples of censorship of student expression.

  • Students at Montgomery Blair High School, in January, prepared a panel discussion of same-sex marriages to be aired on the school system's cable channel.78 Paul Vance, Montgomery County Schools Chief, banned the program from airing because he believed that the school system's cable operation was not a forum for student expression and that the program regarding gay unions did not meet content standards for an educational television channel.79 The Montgomery School Board has a policy that allows a principal to prohibit the distribution of "any material" that encourages actions that threaten the health or safety of students, are obscene or libelous, or could cause "substantial disruption of school activities."80
  • At a Snohomish County high school in Seattle a couple of student editors prepared two articles for the student publication, "the Arrowhead," concerning a vice principal who had been accused of sexually harassing women staffers.81 Fearing the principal would censor the articles, the students asked the Snohomish School Board to allow them to run the stories. The school board, however, said the articles should not appear in the student publication because public discussion of the vice principal was not in the school district's best interests.82
  • In Indiana, a principal suppressed a story that detailed how a tennis coach had stolen more than $1,000 that team members had contributed for use of tennis courts. Student editors later learned that administrators had promised the coach that the story would not run if he resigned.83
  • A New York principal killed a story, written from police reports and court records, reporting that one of the high school's teachers had been arrested for growing marijuana. The principal said she censored the story because it would have "undermined the teacher's ability to teach."84
  • In Ohio, a superintendent censored an advertisement submitted to the student newspaper by a local school board candidate. After it was removed, the student wrote an editorial criticizing the superintendent's actions. "The fundamental truth is that all ideas have a right to be heard," she wrote. School officials cut the editorial as well.85
  • In Alaska, a principal suppressed a junior high school student paper editorial that complained about teachers smoking next door to a classroom in violation of school rules. The principal stated that the article would be an embarrassment.86

Developing solutions to Hazelwood

The Commission of Inquiry into High School Journalism formed by the Robert F. Kennedy Memorial in the early 1970s saw the need for written guidelines to avoid disputes within high schools and costly litigation. Its members, moreover, hoped to improve the situation in high schools so that student journalists might become more responsible and develop a greater understanding and respect for the Constitution — and the First Amendment in particular.

The 22 members who made up the commission were respected, well-known citizens. They called for an end to unwarranted suppression of students' free speech rights. It appeared until Hazelwood that many federal and state courts were following the commission's findings on the negative impact of censorship in public schools. Since Hazelwood, however, the commission's conclusions about censorship appear all the more relevant today.

A number of courts have reviewed instances of administrative censorship and have examined specific school regulations on student expression; few courts have indicated precisely how guidelines should be constructed. The 4th Circuit, however, did set out a detailed list of the attributes of constitutionally valid prior restraint guidelines in Baughman v. Freienmuth.87 Those guidelines are:

  1. Give precise criteria of what is to be forbidden so that a student will know what she can write;
  2. Provision for prompt approval and disapproval of what students submit;
  3. Specification of whether students may distribute material if administrators fail to act promptly; and
  4. An adequate and prompt appeal procedure.

Although a number of individuals as well as courts have suggested that any system of prior restraint is too restrictive, it would appear these guidelines have some advantages over the outcome of Hazelwood. They stipulate who may censor; they specify topics, words, or situations which could trigger censorship; and they provide for a method to settle differences—i.e., what can be done to change the offending article. Not only would written guidelines assist students and school officials, but they could also assist court interpretation of restrictions. Thus, it would be easier to determine whether the regulations are constitutional.


Until Hazelwood, federal and state courts had been moving toward providing students First Amendment rights somewhat equivalent to those guaranteed adults. That seemed to be the direction of the Supreme Court from the time of Tinker, but the decision in Hazelwood signaled a clear change in the court's philosophy regarding the degree of constitutionally permissible school-imposed restrictions of First Amendment rights for public school students.

One of the key issues raised by Hazelwood concerns when a student newspaper is to be deemed a public forum. Although the court answered the question only in the context of the "Spectrum," it nonetheless made clear that most of those high school newspapers associated with journalism programs would fall into the same category — i.e., they would be considered school-sponsored, private forums. In a nutshell, the position of the Hazelwood Court was that because student media do not fit the concept of the public forum under existing U.S. Supreme Court precedent, full First Amendment protection cannot be extended to student journalists on this basis. The Court also said that because student newspapers are not true public forums, they are not then legally analogous to professional news media. Consequently, courts and school officials have had to balance student free speech and school educational goals. The Hazelwood Court faced this tension, and struck a precarious balance between the two.

The Commission of Inquiry into High School Journalism concluded that "Censorship and the systematic lack of freedom to engage in open, responsible journalism characterize high school journalism." The commission, moreover, noted that when allowed, students produced exceptional work about sensitive topics. Members of the commission had hoped their report would illustrate to educators that protecting students' First Amendment rights would enhance the learning experience.

Unfortunately, the principles laid out in Hazelwood have made it easier for insecure school officials to suppress student expression. As previously noted, school administrators can easily cite legitimate educational concerns for restricting publication of articles that make them or parents uncomfortable. It is not likely that school-sponsored newspapers are going to carry stories that would give the appearance that school officials are not doing their jobs adequately. It is not likely that their authority will be questioned by student journalists.

California and a handful of other states have given students greater First Amendment protection than Hazelwood. Those states flatly prohibit censorship of student expression except in limited, statutorily defined areas. Until more states follow California's lead, student journalists—other than those in exceptional schools—will continue to struggle against school officials leery of allowing student publication of sensitive topics.

1Hazelwood School District v. Kuhlmeier, 108 S.Ct. 562 (1988).
2Jack Nelson, Captive Voices, xi (1979).
3Id. at xi.
4Id. at xx.
5Id. at pp. 47, 48.
6Legal Requests From High Schools Reach Record High at SPLC in '96, Student Press Law Center Report, Fall 1997. According to the Report, the SPLC received 605 student calls. The previous high was 542 in 1995.
7Gillmor, Donald M., and Barron, Jerome A., Mass Communication Law, (1990).
8Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 504 (1969).
10Id. at p.508.
11Id. at p. 511. The Court also reiterated Justice Brennan's belief that constitutional rights should be vigilantly protected in the community of American schools. In Shelton v. Tucker, 364 U.S. 479 (1960), Brennan wrote for the majority that the nation's future depends upon leaders trained through wide exposure "to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection."
12Id. at p. 522.
13Id. Black also implied that the students in this situation were not yet competent to express themselves.
14Id. at p. 524.
15Id. at p. 506.
16J. Marc Abrams, S. Mark Goodman, Comment, End of an Era? The Decline of Student Press Rights in the Wake of Hazelwood School District v. Kuhlmeier, 706 Duke L.J. 709 (1988).
17Gambino v. Fairfax County School Board, 429 F. Supp. 731 (1977). The Hayfield school was governed by the Fairfax County School Board, an agency of Virginia. The School Board issued, months prior to the students' report, a notice which prohibited the schools from offering sex education. The Hayfield principal, aware of the notice, decided to prevent publication of the report.
18Id. at p. 733.
19Jack Nelson, Captive Voices, p.4, (1974).
20Id. at p. 5.
22Id. at pp. 6, 7.
23Fujishima v. Board of Education, 460 F.2d 1355, (1972).
24Id. at p. 1355.
26Id. at p. 1357.
27Id. Section 6-19 of the Chicago Board of Education Rules: "No person shall be permitted … to distribute on the school premises any books, tracts, or other publications … unless the same shall have been approved by the General Superintendent of Schools."
29Jack Nelson, Captive Voices, p. 9. Nelson also notes that the principal and assistant suspended the students involved in Fujishima.
30Id. at p. 10.
31Id. at p. 12.
32Id. at p. 14.
33Abrams, Goodman, End of An Era? The Decline of Student Press Rights In the Wake of Hazelwood School District v. Kuhlmeier, 706 Duke L.J. 709 (1988).
34Id. Abrams and Goodman note several cases: courts have upheld the rights of student journalists to publish a four-letter-word reference to a university president; a photograph of burning American flag; and an editorial calling for continued racial segregation of university facilities; advertisements concerning race relations, unionization, and the Vietnam War; criticism of a governor and a state legislature; and "derogatory, profane, and blasphemous" attacks on the Catholic Church.
35James L. Swanson, Christian L. Castle, First Amendment Handbook, (1990).
36Id. at p. 154.
37Hazelwood School Dist. v. Kuhlmeier, 108 S.Ct. 562, 564 (1988). The Board of Education allocated funds from its annual budget for the printing of "Spectrum."
38Id. at p. 566.
39Id. When the students of Journalism II protested Reynolds's decision, he responded that the articles were "too sensitive" for "our immature audience of readers."
40Hazelwood at p.565.
45Id. at p. 567.
46Id. Additionally, the Court of Appeals found "no evidence in the record that the principal could have reasonably forecast that the censored articles or any materials in the censored articles would have materially disrupted classwork or given rise to substantial disorder in the school.
49Id. at p. 568. The Court cited the Hazelwood School Board Policy, which in part stated that "school sponsored publications are developed within the adopted curriculum and its educational implications in regular classroom activities." Accordingly the Court stated that Hazelwood school officials did not "deviate in practice from their policy that production of the "Spectrum" was to be part of the educational curriculum and a regular classroom activity.
51Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 525 (1969). Black, moreover, believed high school-aged students were not intellectually capable of proffering opinions about politics.
52Hazelwood, 108 S.Ct. 562, 570 (1988).
54Id. The Court noted that school officials, acting as publishers, have the duty to make sure the school is not seen as endorsing any offensive student speech.
55Id. at p. 570.
58Mark Goodman, Student Journalism after Hazelwood, Student Press Law Center (1996).
59Hazelwood, 108 S.Ct. 562, 580.
60Id. at p. 575. In Bethal School District v. Fraser, 478 U.S. 675 (1986), the Court used the reasoning of Tinker to uphold an official decision to discipline a student for delivering a supposedly lewd speech in support of a student-government candidate.
61Id. Brennan noted two recent Court decisions, involving universities in which Tinker was used to uphold student press actions. In Papish v. University of Missouri Board of Curators, 410 U.S. 667 (1973), a student was expelled for distributing a newspaper on campus which included a political cartoon depicting policemen raping the Statute of Liberty and the Goddess of Justice, and a headline announcing "Motherfucker Acquitted." In Healy v. James, 408 U.S. 169 (1972), college administrators refused to recognize a student group simply because they disagreed with the group's philosophy and had an unsupported fear of school disruption. In both cases, the Court said the school administrators actions were unconstitutional.
62Id. at p. 574. Brennan cited an earlier Court decision that public educators must accommodate some student expression even if it offends them or offers views or values that contradict those school officials hope to inculcate.
63Id. at p. 579.
64Id. at p. 580.
65Cal. Educ. Code sec. 48907
66Leeb v. Delong, 198 Cal. App. 3d 47 (1988).
69Id. at p. 52.
70Id. at p. 54.
71Id. at p. 55.
72Perumal v. Saddleback Valley Unified School District, 198 Cal. App. 3d 64 (1988).
74Id. at p. 67. The Court noted that Sec. 48907 permitted school districts to create their own lawful regulations and that students' rights may be restricted if the expression is in violation of those regulations.
75Mark Goodman, Student Journalism after Hazelwood, American Society of Newspaper Editors, p. 3, (1996).
76School Censorship Efforts Continue At Record Levels in the U.S., Educational Marketer, Nov. 11, 1996.
77Id. According to the report issued by Simba Information, Inc., a record 18% of reported challenges involved claims that student journalists were "promoting" homosexuality.
78Brian Mooar, Montgomery Schools Chief Upholds Ban, The Washington Post, p. B5, Jan. 10, 1997.
81Nancy Montgomery, Snohomish Vice President Drops Fight Against Firing, The Seattle Times, p. B1, Jan. 29, 1997.
83Goodman, Student Journalism after Hazelwood, Student Press Law Center, (1996).
87478 F.2d 1345, 1351 (1973).

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