In the past three terms, the U.S. Supreme Court has told us — again and again — that the government may never punish people for the content of their speech. As interpreted by the Roberts Court, the Constitution protects even speech that is highly disturbing (videos of dogfights), that has detrimental effects on some audience members (ultraviolent video games), that is brazenly false (lying about having won military honors) or that is grossly offensive to basic human decency (anti-gay hate banners outside military funerals).
This First Amendment absolutism — "Congress shall make no law" truly means "no law" — only makes it more anomalous that millions of Americans are still denied a seat at the grown-up table of citizenship: students in public schools and colleges. Twenty-five years ago, the Supreme Court decided Hazelwood School District v. Kuhlmeier, a case that stripped away constitutional protection for students who use a "curricular" means of communication (in that case, a high school newspaper).
A generation’s worth of legalized censorship has damaged the learning environment in schools, discouraged young people from meaningfully engaging in civic life and obstructed the public’s access to truthful information. As the director of the University of Arizona’s journalism program told a recent law-school symposium reflecting on the legacy of Hazelwood, "We are raising a nation of sheep. I don’t think it’s extreme to say that we risk democracy."
Because of Hazelwood, a Tennessee high school was emboldened to prohibit an 18-year-old newspaper editor from publishing a column pleading for her fundamentalist Christian community to show tolerance for nonbelievers. A Virginia high school confiscated its student newspaper — and removed the adviser — for a column documenting the inadequacies of the school’s handicapped-inaccessible facilities. An Indiana high school forbade a student from publishing a story bringing to light pervasive hazing among track-and-field athletes. And the list goes on.
When "Thank God for Dead Soldiers" and "Grand Theft Auto IV" are constitutionally protected speech, but an editorial exposing unsafe conditions at a public school is not, something has gone terribly, terribly wrong.
Hazelwood undermined the sensible balance struck by the court in its landmark 1969 ruling, Tinker v. Des Moines Independent Community School District. The court held that — while students’ ability to express themselves must be circumscribed in light of "the special characteristics of the school environment" — nothing less than a "material and substantial" disturbance could justify censoring speech.
Hazelwood replaced Tinker‘s robust protection with something akin to reasonableness — censorship may be justified if it is "reasonably related to legitimate pedagogical concerns" — a standard that in practice has been insurmountable even for students with the most compelling claims. In what civilized people must hope represents Hazelwood‘s low-water mark, the U.S. Court of Appeals for the Fifth Circuit decided in a 2011 ruling, Doe v. Silsbee Independent School Distric t , that a Texas high school cheerleader had no right to quietly sit out a cheering routine that required her to recite the name of the basketball player who raped her. Because of Hazelwood, the court held, the victim was not a human being, but merely a "mouthpiece" for her school’s message.
Perhaps seeing an opportunity to purge their dockets of disputes they consider trivial, lower courts have expanded the Hazelwood doctrine beyond any sensible stopping point. While Hazelwood began as a case about the use of a government-provided "forum" in front of a captive audience of children, it increasingly is becoming the standard that governs all speech by all students at all times.
Retaliation against college students — even middle-aged graduate students — who complain about the curriculum is being reviewed under extra-strength Hazelwood deference even when the student speaks in private with a faculty member, not using government property or addressing a student audience at all.
In 2012, the Sixth Circuit joined three others in expressly adopting Hazelwood as the standard governing administrators’ censorship authority at the college and even professional-school level. In that ruling, Ward v. Polite, the court decided that the minimal Hazelwood level of protection applied to the complaints of a 31-year-old Michigan graduate student, because they "arose within the curricular context." Using this reasoning, courts have distorted Hazelwood from a doctrine about control over the use of government property into a doctrine about control over people.
More noxious than any single misapplication of Hazelwood is the mentality that it has fostered in schools — that students have no opinions about school policies worth hearing; that unpopular minority viewpoints are too "offensive" to be heard; that controversy over divisive issues is to be feared and minimized; and that in any disagreement with its citizens, the government always wins. There is no surer preparation for a lifetime of "civic dis-engagement."
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.