Hazelwood Reaffirms First Amendment Values
The Supreme Court's recent decision in Hazelwood School District v. Kuhlmeier, which authorizes educators to supervise the content of official high-school newspapers, is the Court's most significant ruling in a free-speech case involving public-school students since it decided Tinker v. Des Moines Independent Community School District almost 20 years ago.
Not simply marking the Court's first application of constitutional principles to school newspapers, the Hazelwood decision also creates a category of student speech to which Tinker does not apply: "school-sponsored expressive activities.''
Rather than weakening its commitment to the constitutional rights of students, the Court is attempting to strengthen students' most fundamental interest in the underlying principles of free expression: the right to develop their own educated capacity for self-expression. Schools as well as courts, the ruling suggests, can develop and protect the values of the First Amendment.
The Tinker decision (1969) upheld the right of students to wear black armbands to protest the war in Vietnam. The idea that students are entitled to some degree of independent expression was important in a day of mounting national frustration and of explosive pressure from young people anxious to vent their grievances.
Since that time, both lower courts and commentators have interpreted Tinker to mean that a school is much like a public forum, and that student expression should be limited only when it could cause a major disruption or other serious harm in the school.
In Bethel School District v. Fraser (1986), however, the Supreme Court held that a high school could discipline a student for a vulgar speech in a student-body assembly, even though the speech did not cause a serious disruption.
Reading Fraser narrowly, some people thought the case dealt only with vulgarity. Now, Hazelwood has confirmed that Fraser turned not only on the vulgarity of the student's speech, but also on the school's having sponsored the assembly.
In the Hazelwood ruling, the Court held that educators have presumptive control over "school-sponsored publications, theatrical productions, and other expressive activities,'' whenever such activities are supervised by faculty members and involve the educational mission of the school in a way that implies school sponsorship. Students' First Amendment rights outweigh educators' decisions within this realm "only when the [educator's] decision ... has no valid educational purpose,'' the Court said.
By creating this broad category of education-related speech in which courts may give only minimal scrutiny to educators' judgment calls, the Court necessarily limited the future application of Tinker to "personal expression that happens to occur on the school premises.''
Some legal scholars—and the dissenting Justices in Hazelwood—argue persuasively that First Amendment theory should act primarily to limit the exercise of educators' discretion. This interpretation, they say, would help protect children against the risks of indoctrination and teach the value of participatory democracy and personal autonomy. Students would learn that the purpose of the Bill of Rights is to limit state authority.
But the possible necessity for judicial intervention intended to limit abuses of adult discretion does not justify removing all restrictions on freedom of expression for students. Indeed, young people may need protection against the harmful consequences of their own decisions as much as they need protection against abuses by school personnel. That fact about children lies at the base of our legal system's concept of minority status.
Those who argue for limitations on the exercise of educators' discretion also presuppose that children have the rational capacity necessary for meaningful participation in the political process and in the marketplace of ideas.
But because, as Justice Potter Stewart once wrote, children are "not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees,'' they are not granted the most fundamental of democratic rights—the right to vote.
Moreover, it is because children lack the ability to evaluate the meaning of apparent state sponsorship that the First Amendment's establishment clause forbids public prayer in school—even while it permits prayer in a legislative chamber.
Overlooking the issue of mature capacity, the dissenting Justices in Hazelwood argued that the majority's fears about erroneous attribution of official sponsorship to ideas contained in a school newspaper could be overcome by publishing a disclaimer of such sponsorship.
Yet some of those same Justices have made it clear in the Court's establishment-clause cases that a public disclaimer issued prior to a classroom prayer or posted as a footnote to copies of the Ten Commandments placed on school walls could by no means remove the appearance of school endorsement in the eyes of children.
In addition to the difficulties created by children's lack of mature capacity, the idea that the First Amendment exists only to constrain state or institutional action overlooks—and indeed could hinder—the affirmative contributions schools can make in fulfilling the amendment's purposes. A child's most fundamental interest in First Amendment values may be his right to be taught the capacity to express himself, vote with understanding, and enjoy meaningful personal autonomy.
Freedom of expression has two meanings: freedom from restraints and freedom for expression—having the capacity to express oneself. Until children have developed freedom of expression in the second sense, their freedom in the first sense holds only limited value. A child's "right'' to be educated, then, is rooted in the personal and social interests that lie the First Amendment.
Even while accepting the need for such development, some might argue that, with protection from adult authority, children will effectively cultivate their own faculties. This view—a major premise of the reform era of the 1960's and 1970's, symbolized by anti-authoritarian protests on high-school as well as college campuses—also found its way into popular childhood-education theories challenging the need for adult authority. A.S. Neill's Summerhill, for example, begins with the assumption that a child is "innately wise and realistic. If left to himself without adult suggestion of any kind, he will develop as far as he is capable of developing.''
The evidence that has accumulated since those years, however, suggests otherwise. The widespread reduction of institutional authority in schools over the past generation, for example, has been identified as a primary factor in the recently publicized declines in academic achievement among the nation's students.
Indeed, most studies of that period agree with the assessment of Allan Bloom in The Closing of the American Mind: "You don't replace something with nothing. Of course, that was exactly what the educational reform of the 60's was doing.''
Whatever one makes of this evidence, the question whether authoritarian or anti-authoritarian approaches will best educate the minds and expressive powers of children is—as the Supreme Court now recognizes—more a matter of educational philosophy and practice than it is an issue of constitutional law.
For that reason alone, First Amendment theories applied by courts primarily on the basis of anti-authoritarian assumptions are at best a clumsy and limited means of ensuring optimal development toward a mastery of either democratic values or basic intellectual skills.
A major contribution of the Hazelwood ruling, then, is its reaffirmation of the schools' institutional role—and their accountability to the public for its responsible fulfillment—in nurturing the underlying values of the First Amendment, for the sake not only of their students but also of the larger society.
Vol. 7, Issue 29, Page 36Published in Print: April 13, 1988, as Hazelwood Reaffirms First Amendment Values