Landmark Student-Press Ruling Resonates Decades Later
In late 1987, U.S. Supreme Court Justice Byron R. White circulated a draft opinion to his colleagues in a case about whether high school journalists had the right to be free of interference from school administrators.
His opinion in the case, Hazelwood School District v. Kuhlmeier, sided with Missouri administrators who some four years earlier had removed articles about teenage pregnancy, divorce, and other sensitive topics from the Hazelwood East High School student newspaper before publication.
And that is how the case turned out. In a landmark decision 25 years ago next week, the justices ruled 5-3 that educators usually do not violate the First Amendment when they exercise control over student speech in school-sponsored expressive activities. The decision had immense significance for student publications and for student speech more generally. The 25th anniversary of the Jan. 13, 1988, decision has been marked in recent months by scholarly conferences and assessments of its continuing impact.
But when the case was being deliberated, the outcome was somewhat unsure, as revealed in the papers of Justice White, which were opened to the public only last year.
After the case was argued in October 1987, five justices tentatively sided with the school administrators: Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, and Justice White, who was picked by the chief justice to write the opinion.
Justice White knew he had to proceed carefully to retain his thin majority. The Hazelwood case was heard by only eight justices because Lewis F. Powell Jr. had retired from the court that summer, and his seat was still open following the failed nomination of Robert H. Bork, a former U.S. solicitor general and then federal appeals court judge. (Anthony M. Kennedy would join the court about a month after the Hazelwood decision.)
If Justice White were to lose one of his votes, the resulting 4-4 tie would mean that a federal appeals court ruling in favor of the student journalists would be affirmed without a high court opinion. That made dealing with the requests of the justices in the majority precarious.
Justice Scalia, the papers show, responded to Justice White's draft with a wholesale alternative to a section dealing with the actions of Hazelwood East's principal.
Meanwhile, Justice Stevens proposed some suggestions of his own.
"While I am in substantial agreement with your fine opinion, I wonder if you would consider making two changes," Justice Stevens told Justice White in a Nov. 20, 1987, internal memo. "If you make these changes, or ones that will achieve a similar result, you will garner my vote."
The Hazelwood anniversary has prompted recollections by the original participants and examinations of the decision's enduring effects on school speech controversies.
At a September conference on student speech at the University of Missouri-Kansas City, one of the editors of the Hazelwood East High School Spectrum, now Cathy Kuhlmeier Frey, clashed verbally with Robert E. "Gene" Reynolds, the principal who had made the decision to pull the articles about teen pregnancy and divorce.
Ms. Frey said the students who produced the newspaper as part of the school's journalism class had sought to broach mature topics that would be of interest to their classmates, and they had worked hard to refine the stories, which in some instances involved using pseudonyms for the subject students.
"I was so mad because we had worked so hard on those articles," she said. She said that Spectrum had run similar stories just a few years earlier.
Mr. Reynolds testified at the time the case was in court that he did not believe the identities of students in sensitive situations had been adequately protected, and that was a key reason he had deleted two pages from the issue of the paper.
At the student-speech conference at the UMKC law school, the now-retired principal also said that budgetary pressures were a factor.
"This was not about Cathy and her classmates—they were all great," Mr. Reynolds said. "These center pages on divorce and pregnancy were not well done. They needed more work."
Under time pressure to complete the May 13, 1983, edition and at a time when he says he was under pressure to cut costs in general, Mr. Reynolds said he concluded that the easiest course was to eliminate the two-page spread that contained the controversial articles.
The students sued with the aid of the American Civil Liberties Union, and while they lost in federal district court, the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled that the Spectrum was not only part of the school's curriculum but was a public forum for student expression. School officials could not censor such a student newspaper unless it was necessary to avoid substantial interference with schoolwork or discipline, or the rights of others, the court said.
Justice White's eventual opinion for the Supreme Court rejected the idea that a school-sponsored publication created a public forum for student expression.
"School officials did not evince either by policy or by practice any intent to open the pages of Spectrum to indiscriminate use by its student reporters and editors, or by the student body generally," Justice White said. "Instead, they reserved the forum for its intended purpose as a supervised learning experience for journalism students. Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner."
But Justice William J. Brennan Jr., in a famous dissent joined by Justices Thurgood Marshall and Harry A. Blackmun, said the First Amendment prohibited administrator censorship of "any student expression that neither disrupts classwork nor invades the rights of others."
When they signed up for the journalism class, Justice Brennan said, "the young men and women of Hazelwood East expected a civics lesson, but not the one the court teaches them today."
The majority decision was roundly criticized by media groups and some educators in its aftermath, though not by groups representing school boards and administrators, which sided with the Hazelwood district in the Supreme Court.
Jeff Browne, a lecturer at the school of journalism and mass communications at the University of Kansas, in Lawrence, said seven states have "anti-Hazelwood" laws granting student journalists greater free-expression rights. The states are California (which has a law predating the decision), Arkansas, Colorado, Iowa, Kansas, Massachusetts, and Oregon. Only one such law, that of Kansas, also protects the teachers who serve as publication advisers from being punished for student speech, he said.
"There are still heavy hands out there" of administrators who sometimes threaten advisers over the content of student publications, said Mr. Browne, who is also the executive director of the Kansas Scholastic Press Association.
Frank LoMonte, the executive director of the Student Press Law Center, an Arlington, Va.-based advocate for student-expression rights at the K-12 and collegiate levels, said that in the 25 years since the decision, a "Hazelwood mentality" has emerged among many school administrators.
"The idea is that somehow the law exists to protect the government against the public," said Mr. LoMonte. The belief among many administrators, he added, is that the decision granted them rights to control student publications.
"There's a real sense that Hazelwood made censorship not just legal, but a best educational practice," he said. "But it's certainly not a best educational practice."
David Cullier, an associate professor of journalism at the University of Arizona, in Tucson, argued at a recent symposium that the Hazelwood decision has led to a generation of students who do not challenge authority as they should.
Other experts and advocates do not see the Hazelwood decision as inherently troublesome.
Francisco M. Negrón Jr., the general counsel of the National School Boards Association, in Alexandria, Va., argues that public schools are in an "untenable position" when trying to balance the needs of school safety and discipline against student-expression rights.
"Schools do have that ultimate control, because the school paper has the blessing of the school," he said. "Now, not all schools believe that they need to do that. Some may grant students a lot more control. But I don't think it's extreme or in any way inappropriate for schools to want to retain that ultimate control."
Mark Goodman, a professor of journalism at Kent State University in Kent, Ohio, said that while there is a perception of the decline of the traditional high school newspaper, perhaps because of the effects of Hazelwood or other factors, the facts do not necessarily bear that out.
The university conducted a "census" of student media in 2011 and found that 64 percent of U.S. public high schools still have a student newspaper. Yearbooks are published in 94 percent of schools. And about one-third of schools have some form of online student media, with many of those ventures affiliated with the student newspaper or another student media outlet.
"Anecdotally, people believe [student] print newspapers are fewer than in 1988, but the overall student media presence may not be," said Mr. Goodman, who was the executive director of the Student Press Law Center at the time of the Hazelwood decision.
One enduring mystery about the Hazelwood case is whether Justice Stevens, the most liberal of the court's members in the majority on that case, ever wavered to the point of siding with Justice Brennan's view that the student expression was protected. That, of course, would have changed the outcome.
But from the time the case was argued, Justice Stevens seemed aligned with his more conservative colleagues. Justice Blackmun's notes from the justices' private conference in which the case was first discussed indicate that Justice Stevens' views were aligned with those of Justice White.
"Not Tinker," Justice Stevens said in that discussion, as summarized by Justice Blackmun. The reference suggests that Justice Stevens agreed the students' articles for the school newspaper were not covered by the Supreme Court's landmark 1969 decision in Tinker v. Des Moines Independent Community School District. (In the Vietnam War-era Tinker case, the court ruled that students who wore black armbands to school were engaged in a symbolic protest protected by the First Amendment so long as school was not substantially disrupted.)
Justice Blackmun's notes in the Hazelwood case record Justice Stevens as suggesting that the Hazelwood students were not in "full control" of the publication and not independent journalists.
Nevertheless, Justice White, faced with two colleagues who wanted to tweak his opinion, seems to have been more worried about losing the vote of Justice Stevens, who was generally more moderate on student rights and only two years earlier had dissented when the court had ruled that a high school student's lewd speech at a school assembly was not protected speech.
In his memo, Justice Stevens, who left the court in 2010, suggested a change in Justice White's language describing the Spectrum newspaper's statement of policy. The statement claimed First Amendment rights for the students, and Justice White said that was merely the opinion of the students. Justice Stevens suggested that the policy statement be read as reflecting at least some student-expression rights—those "that attend the publication of a school-sponsored newspaper"—but not as reflecting "an intent to expand those rights by converting a curricular newspaper into a public forum."
Second, Justice Stevens asked Justice White to remove a reference to "wholly arbitrary" decisions by administrators on student speech that might require judicial intervention to protect the rights of students. "Even if correct, the use of that term in a First Amendment case is somewhat jarring," Justice Stevens said. Perhaps, he said, the opinion could bar administrator censorship that " 'appears to be wholly unrelated to pedagogical concerns' or perhaps, 'appears to have no valid educational purpose.' "
Justice White made the changes requested by Justice Stevens, amending the opinion to read: "It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so directly and sharply implicated as to require judicial intervention to protect students' constitutional rights."
He quickly garnered Justice Stevens' vote. Justice White then turned to Justice Scalia.
"Dear Nino," Justice White wrote, using Justice Scalia's nickname, "John would much prefer to leave Part III as it is. Also, after looking over the opinion again it seems to me that the language in Part III is more consistent with Part II than your suggested changes would be. I would like to retain the votes I have and hope you can make a 5th."
The details of Justice Scalia's proposed substitute section remain a mystery. Justice White returned the proposal to Justice Scalia, the only member of the Hazelwood court who remains a sitting justice, rather than keep it in his files.
On Dec. 15, 1987, Justice Scalia gave Justice White his vote as well. He added a postscript: "Many thanks for trying out my suggested changes."
Justice White, who retired in 1993 and died in 2002, was not the pack rat that some of his court colleagues were when it came to saving correspondence and other materials. If he received any letters of praise from school administrators for his Hazelwood opinion, he did not keep them in his files.
Justice Brennan, who retired in 1990 and died in 1997, did keep a number of letters he received from student journalists and newspaper advisers, lamenting the Hazelwood decision and praising his dissent.
One such letter came from an Alabama high school English teacher and yearbook adviser. "Knowing firsthand how many incompetent, melon-headed administrators hold authority over public schools, I fear the worst as I look to the future," the teacher, Michael D. Cordle, wrote.
Justice Brennan sent a short, polite reply, thanking Mr. Cordle for his "gracious letter."
Vol. 32, Issue 15, Pages 1, 12-13Published in Print: January 9, 2013, as Student-Press Ruling Resonates From 1988