When the Tinker and Hazelwood majority opinions are set side by side, the directional choice they offer is stark.
Tinker comes from a place of optimism and trust of young learners. It acknowledges that freedom is always "hazardous," yet concludes, "our Constitution says we must take this risk." Left unchecked, Justice Abe Fortas wrote, administrators will turn schools into "enclaves of totalitarianism," treating their students as "closed-circuit recipients of only that which the State chooses to communicate."
Hazelwood comes from a place of suspicion and fear. Inadequately supervised, Justice Byron White wrote, students will use the right of free expression to advocate "alcohol or drug use, irresponsible sex" or other behavior violating "the shared values of a civilized social order." The primary objective for educators, Hazelwood tells us, is to get through a day without controversy and preserve the school's reputation.
Twenty-five years is time enough to assess whether the direction in which Hazelwood has pointed education is the right one, or whether it is time for the pendulum to swing back toward moderation. Seven states have restored students' rights to the pre-Hazelwood level by statute, and an eighth (Illinois) has done so only at the college level. Their combined 146 years of experience with statutorily protected freedom amply demonstrates that it is possible to manage schools effectively without resort to Hazelwood.
We should remember that Hazelwood's "legitimate pedagogical concern" standard derives directly from a ruling in the preceding court term, Turner v. Safley, in which the court decided that prison wardens could censor inmates for any justification "reasonably related to legitimate penological interests." The notion that a 16-year-old rape victim — or a 30-year-old Iraq War veteran attending college on the G.I. Bill — might be entitled to no greater freedom of expression than a maximum-security felon should be repellent to any who value and respect the Constitution.
As recently as 46 years ago, states could make it a crime for a black woman to marry a white man; now, we have the son of an interracial couple in the White House. As recently as 10 years ago, states could make it a crime for two men to have sexual relations; now, nine states and the District of Columbia will give them a marriage license. As Dr. Martin Luther King Jr. famously reassured impatient followers, "The arc of the moral universe is long, but it bends toward justice."
But try telling that to young people, the only demographic group in America that it is socially acceptable to demonize, and the only group whose civil rights have gone backward in the last 40 years.
One lost generation is enough. Hazelwood has proven to be a failed experiment, and it's time for all who care about the effective teaching of civic values — including school administrators and their lawyers — to join in calling for its repeal.
Attorney Frank D. LoMonte is executive director of the Student Press Law Center, www.splc.org, a nonprofit advocate for student First Amendment rights based in Arlington, Va.
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