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The Dissent: Text of the Ruling in Hazelwood School District v. Kuhlmeier

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Justice Brennan, with whom Justice Marshall and Justice Blackmun join, dissenting.


When the young men and women of Hazelwood East High School registered for Journalism II, they expected a civics lesson. Spectrum, the newspaper they were to publish, "was not just a class exercise in which students learned to prepare papers and hone writing skills, it was a ... forum established to give students an opportunity to express their views while gaining an appreciation of their rights and responsibilities under the First Amendment to the United States Constitution. ..."

"[A]t the beginning of each school year," the student journalists published a Statement of Policy--tacitly approved each year by school authorities--announcing their expection that "Spectrum, as a student-press publication, accepts all rights implied by the First Amendment. ... Only speech that 'materially and substantially interferes with the requirements of appropriate discipline' can be found unacceptable and therefore prohibited." The school board itself affirmatively guaranteed the students of Journalism II an atmosphere conducive to fostering such an appreciation and exercising the full panoply of rights associated with a free student press. "School-sponsored student publications," it vowed, "will not restrict free expression or diverse viewpoints with the rules of responsible journalism."

This case arose when the Hazelwood East administration breached its own promise, dashing its students' expectations. The school principal, without prior consultation or explanation, excised six articles--comprising two full pages--of the May 13, 1983, issue of Spectrum. He did so not because any of the articles would "materially and substantially interfere with the requirements of appropriate discipline," but simply because he considered two of the six "inappropriate, personal, sensitive, and unsuitable" for student consumption.

In my view the principal broke more than just a promise. He violated the First Amendment's prohibitions agains censorship of any student expression that neither disrupts classwork nor invades the rights of others, and against any censorship that is not narrowly tailored to serve its purpose.

I

Public education serves vital national interest in preparing the nation's youth for life in our increasingly complex society and for the duties of citizenship in our democratic republic. The public school conveys to our young the information and tools required not merely to survive in, but to contribute to, civilized society. It also inculcates in tomorrow's leaders the "fundamental values necessary to the maintenance of a democratic political system. ..." All the while, the public educator nurtures students' social and moral development by transmitting to them an offical dogma of "'community values."'

The public educator's task is weighty and delicate indeed. It demands particularized and supremely subjective choices among diverse curricula, moral values, and political stances to teach or inculcate in students, and among various methodologies for doing so. Accordingly, we have traditionally reserved the "daily operation of school systems" to the states and their local school boards. We have not, however, hesitated to intervene where their decisions run afoul of the Constitution. ...

Free student expression undoubtedly sometimes interferes with the effectiveness of the school's pedagogical functions. Some brands of student expression do so by directly preventing the school from pursuing its pedagogical mission: The young polemic who stands on a soapbox during calculus class to deliver an eloquent political diatribe interferes with the legitimate teaching of calculus. And the student who delivers a lewd endorsement of a student-government candidate might so extremely distract an impressionable high-school audience as to interfere with the orderly operation of the school. Other student speech, however, frustrates the school's legitimate pedagogical purposes merely by expressing a message that conflicts with the school's, without directly interfering with the school's expression of its message: A student who responds to a political-science teacher's question with the retort, "Socialism is good," subverts the school's inculcation of the message that capitalism is better. Even the maverick who sits in class passively sporting a symbol of protest against a government policy, or the gossip who sits in the student commons swapping stories of sexual escapades could readily muddle a clear official message condoning the government policy or condemning teen-age sex. Likewise, the student newspaper that, like Spectrum, conveys a moral position at odds with the school's official stance might subvert the administration's legitimate inculcation of its own perception of community values.

If mere incompatibility with the school's pedagogical message were a constitutionally sufficient justification for the suppression of student speech, school officials could censor each of the students or student organizations in the foregoing hypotheticals, converting our public schools into "enclaves of totalitarianism," that "strangle the free mind at its source."

The First Amendment permits no such blanket censorship authority. While the "constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Just as the public on the street corner must, in the interest of fostering "enlightened opinion," tolerate speech that "tempt[s] [the listener] to throw [the speaker] off the street," public educators must accommodate some student expression even if it offends them or offers views or values that contradict those the school wishes to inculcate.

In Tinker, this Court struck the balance. We held that official censorship of student expression--there the suspension of several students until they removed their armbands protesting the Vietnam War--is unconstitutional unless the speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others. ..." School officials may not suppress "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of" the speaker. The "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," or an unsavory subject does not justify official suppression of student speech in the high school.

This Court applied the Tinker test just a term ago in Fraser, upholding an official decision to discipline a student for delivering a lewd speech in support of a student-government candidate. The Court today casts no doubt on Tinker's vitality. Instead it erects a taxonomy of school censorship, concluding that Tinker applies to one category and not another. On the one hand is censorship "to silence a student's personal expression that happens to occur on the school premises." On the other hand is censorship of expression that arises in the context of "school-sponsored ... expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."

The Court does not, for it cannot, purport to discern from our precedents the distinction it creates. One could, I suppose, readily characterize the Tinkers' symbolic speech as "personal expression that happens to [have] occur[red] on school premises," although Tinker did not even hint that the personal nature of the speech was of any (much less dispositive) relevance. But that same description could not by any stretch of the imagination fit Fraser's speech. He did not just "happen" to deliver his lewd speech to an ad hoc gathering on the playground. As the second paragraph of Fraser evinces, if ever a forum for student expression was "school-sponsored," Fraser's was:

"Fraser ... delivered a speech nominating a fellow student for student elective office. Approximately 600 high-school students ... attended the assembly. Students were required to attend the assembly or to report to study hall. The assembly was part of a school-sponsored educational program in self-government."

Yet, from the first sentence of its analysis, Fraser faithfully applied Tinker.

Nor has this Court ever intimated a distinction between personal and school-sponsored speech in any other context. ...

II Even if we were writing on a clean slate, I would reject the Court's rationale for abandoning Tinker in this case. The Court offers no more than an obscure tangle of three excuses to afford educators "greater control" over school-sponsored speech than the Tinker test would permit: the public educator's prerogative to control curriculum; the pedagogical interest in shielding the high-school audience from objectionable viewpoints and sensitive topics; and the school's need to disassociate itself from student expression. None of the excuses, once disentangled, supports the distinction that the Court draws. Tinker fully addresses the first concern; the second is illegitimate; and the third is readily achievable through less oppressive means.

A The Court is certainly correct that the First Amendment permits educators "to assure that participants learn whatever lessons the activity is designed to teach. ..." That is, however, the essence of the Tinker test, not an excuse to abandon it. Under Tinker, school officials may censor only such student speech as would "materially disrup[t]" a legitimate curricular function. Manifestly, student speech is more likely to disrupt a curricular function when it arises in the context of a curricular activity--one that "is designed to teach" something--than when it arises in the context of a noncurricular activity. Thus, under Tinker, the school may constitutionally punish the budding political orator if he disrupts calculus class but not if he holds his tongue for the cafeteria. That is not because some more stringent standard applies in the curricular context. It is because student speech in the noncurricular context is less likely to disrupt materially any legitimate pedagogical purpose.

I fully agree with the Court that the first Amendment should afford an educator the prerogative not to sponsor the publication of a newspaper article that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced," or that falls short of the "high standards for ... student speech that is disseminated under [the school's] auspices. ..." But we need not abandon Tinker to reach that conclusion; we need only apply it. The enumerated criteria reflect the skills that the curricular newspaper "is designed to teach." The educator may, under Tinker, constitutionally "censor" poor grammar, writing, or research because to reward such expression would "materially disrup[t]" the newspaper's curricular purpose.

The same cannot be said of official censorship designed to shield the audience or dissociate the sponsor from the expression. Censorship so motivated might well serve some other school purpose. But it 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. Unsurprisingly, Hazelwood East claims no such pedagogical purpose.

The Court relies on bits of testimony to portray the principal's conduct as a pedagogical lesson to Journalism II students who "had not sufficiently mastered those portions of the ... curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals ..., and 'the legal, moral, and ethical restrictions imposed upon journalists. ..."' In that regard, the Court attempts to justify censorship of the article on teen-age pregnancy on the basis of principal's judgment that (1) "the [pregnant] students' anonymity was not adequately protected," despite the articles' use of aliases; and (2) the judgment "that the article was not sufficiently sensitive to the privacy interests of the students' boyfriends and parents. ..." Similarly, the Court finds in the principal's decision to censor the divorce article a journalistic lesson that the author should have given the father of one student an "opportunity to defend himself" against her charge that (in the Court's words) he "chose 'playing cards with the guys' over home and family. ..."

But the principal never consulted the students before censoring their work. "[T]hey learned of the deletions when the paper was released. ..." Further, he explained the deletions only in the broadest of generalities. In one meeting called at the behest of seven protesting Spectrum staff members (presumably a fraction of the full class), he characterized the articles as "'too sensitive' for 'our immature audience of readers,"' and in a later meeting he deemed them simply "inappropriate, personal, sensitive, and unsuitable for the newspaper."

The Court's supposition that the principal intended (or the protesters understood) those generalities as a lesson on the nuances of journalistic responsibility is utterly incredible. If he did, a fact that neither the district court nor the court of appeals found, the lesson was lost on all but the psychic Spectrum staffer.

B The Court's second excuse for deviating from precedent is the school's interest in shielding an impressionable high-school audience from material whose substance is "unsuitable for immature audiences." Specifically, the majority decrees that we must afford educators authority to shield high-school students from exposure to "potentially sensitive topics" (like "the particulars of teen-age sexual activity") or unacceptable social viewpoints (like the advocacy of "irresponsible se[x] or conduct otherwise inconsistent with 'the shared values of a civilized social order"') through school-sponsored student activities.

Tinker teachers us that the state educator's undeniable, and undeniably vital, mandate to inculcate moral and political values is not a general warrent to act as "thought police" stifling discussion of all but state-approved topics and advocacy of all but the official position. Otherwise educators could transform students into "closed-circuit recipients of only that which the State chooses to communicate," and cast a perverse and impermissible "pall of orthodoxy over the classroom." Thus, the state cannot constitutionally prohibit its high-school student from recounting in the locker room "the particulars of [their] teen-age sexual activity," nor even from advocating "irresponsible se[x]" or other presumed abominations of "the shared values of a civilized social order." Even in its capacity as educator the state may not assume an Orwellian "guardianship of the public mind."

The mere fact of school sponsorship does not, as the Court suggests, license such thought control in the high school, whether through school suppression of disfavored viewpoints or through official assessment of topic sensitivity. The former would constitute unabashed and unconstitutional viewpoint discrimination, as well as an impermissible infringement of the students' "'right to receive information and ideas."'

Just as a school board may not purge its state-funded library of all books that offen[d] [its] social, political and moral tastes,"' school officials may not, out of like motivation, discriminatorily excise objectionable ideas from a student publication. The state's prerogative to dissolve the student newspaper entirely (or to limit its subject matter) no more entitles it to dictate which viewpoints students may express on its pages, than the state's prerogative to close down the schoolhouse entitles it to prohibit the nondisruptive expression of antiwar sentiment within its gates.

Official censorship of student speech on the ground that it addresses "potentially sensitive topics" is, for related reasons, equally impermissible. I would not begrudge an educator the authority to limit the substantive scope of a school-sponsored publication to a certain, objectively definable topic, such as literary criticism, school sports, or an overview of the school year. Unlike those determinate limitations, "potential topic sensitivity" is a vaporous nonstandard--like "'public welfare, peace, safety, health, decency, good order, morals, or convenience,"' or "'general welfare of citizens,"'--that invites manipulation to achieve ends that cannot permissibly be achieved through blatant viewpoint discrimination and chills student speech to which school officials might not object. In part because of those dangers, this Court has consistently condemned any scheme allowing a state official boundless discretion in licensing speech from a particular forum.

The case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the "mere" protection of students from sensitive topics. Among the grounds that the Court advances to uphold the principal's censorship of one of the articles was the potential sensitivity of "teen-age sexual activity." Yet the district court specifically found that the principal "did not, as a matter of principle, oppose discussion of said topi[c] in Spectrum." That much is also clear from the same principal's approval of the "squeal law" article on the same page, dealing forthrightly with "teen-age sexuality," "the use of contraceptives by teen-agers," and "teen-age pregnancy." If topic sensitivity were the true basis of the principal's decision, the two articles should have been equally objectionable. It is much more likely that the objectionable article was objectionable because of the viewpoint it expressed: It might have been read (as the majority apparently does) to advocate "irresponsible sex."

C The sole concomitant of school sponsorship that might conceivably justify the distinction that the Court draws between sponsored and nonsponsored student expression is the risk "that the views of the individual speaker [might be] erroneously attributed to the school." Of course, the risk of erroneous attribution inheres in any student expression, including "personal expression" that, like the Tinkers' armbands, "happens to occur on the school premises." Nevertheless, the majority is certainly correct that indicia of school sponsorship increase the likelihood of such attribution, and that state educators may therefore have a legitimate interest in dissociating themselves from student speech.

But "'[e]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."' Dissociative means short of censorship are available to the school. It could, for example, require the student activity to publish a disclaimer, such as the "Statement of Policy" that Spectrum published each school year announcing that "[a]ll ... editorials appearing in this newspaper reflect the opinions of the Spectrum staff, which are not necessarily shared by the administrators or faculty of Hazelwood East," or it could simply issue its own response clarifying the official position on the matter and explaining why the student position is wrong. Yet, without so much as acknowledging the less oppressive alternatives, the Court approves of brutal censorship.


III Since the censorship served no legitimate pedagogical purpose, it cannot by any stretch of the imagination have been designed to prevent "materia[l] disrup[tion of] classwork." Nor did the censorship fall within the category that Tinker described as necessary to prevent student expression from "inva[ding] the rights of others." If that term is to have any content, ite limited to rights that are protected by law. "Any yardstick less exacting than [that] could result in school officials curtailing speech at the slightest fear of disturbance," a prospect that would be completely at odds with this Court's pronouncement that the "undifferentiated fear or apprehension of disturbance is not enough [even in the public-school context] to overcome the right to freedom of expression." And, as the court of appeals correctly reasoned, whatever journalistic impropriety these articles may have contained, they could not conceivably be tortious, much less criminal.

Finally, even if the majority were correct that the principal could constitutionally have censored the objectionable material, I would emphatically object to the brutal manner in which he did so. Where "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools" the principal used a paper shredder. He objected to some material in two articles, but excised six entire articles. He did not so much as inquire into obvious alternatives, such as precise deletions or additions (one of which had already been made), rearranging the layout, or delaying publication. Such unthinking 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.

IV The Court opens its analysis in this case by purporting to reaffirm Tinker's time-tested proposition that public-school students "'do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."' That is an ironic introduction to an opinion that denudes high-school students of much of the First Amendment protection that Tinker itself prescribed. Instead of "teach[ing] children to respect the diversity of ideas that is fundamental to the American system," and "that our Constitution is a living reality, not parchment preserved under glass," the Court today "teach[es] youth to discount important principles of our government as mere platitudes." The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.

I dissent.

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