Court Upholds Censorship of Student Press

By Tom Mirga — January 20, 1988 8 min read
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The U.S. Supreme Court ruled last week that school administrators have sweeping authority to regulate student speech in school-sponsored publications and activities.

Acting in a case stemming from the censorship of a St. Louis-area high-school newspaper in 1983, the Court held 5 to 3 that its landmark 1969 decision that students “do not shed their constitutional rights ... at the schoolhouse gate” does not apply to student expression that the public “might reasonably perceive to bear the imprimatur of the school.”

“This standard is consistent with our oft-expressed view that the education of the nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges,” wrote Associate Justice Byron H. White for the majority in Hazelwood School District v. Kuhlmeier (Case No. 86-836).

“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,” he continued, “that the First Amendment is so directly and sharply implicated as to require judicial intervention to protect students’ constitutional rights.”

In a hard-hitting dissent, Associate Justice William H. Brennan asserted that the majority’s opinion “denuded” students of much of the First Amendment protection that they enjoyed under the 1969 decision in Tinker v. Des Moines Independent Community School District.

In that case, the Court held that administrators could abridge students’ free-speech rights only if the speech threatened to “materially disrupt” schoolwork or violate the rights of others.

“Instead of teaching 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,” Justice Brennan wrote, “the Court today teaches youth to discount important principles of our government as mere platitudes.”

Last week’s decision was the latest in a line of rulings by the Court in recent years that have narrowed the civil liberties of high-school students while expanding the authority of school officials.

In Bethel School District v. Fraser, a case decided in 1986, the Justices ruled that the First Amendment does not prohibit administrators from disciplining students for lewd or indecent speech at school events.

And in 1985, they held in New Jersey v. T.L.O. that school officials do not have to meet the same strict standard as police officers for conducting searches of students’ property.

Groups’ Reactions

Spokesmen for the nation’s school boards and administrators were quick to praise the Court for broadening their authority to regulate student conduct. Civil-liberties groups, meanwhile, denounced the decision and predicted that it would have a chilling effect on the content of student publications.

“To say that we are pleased would be an understatement” said Jonathan T. Howe, a member of the4Northbrook, Ill., school board and president of the National School Boards Association, which filed a “friend of the court” brief in the case supporting the Hazelwood school officials.

The ruling, he said, “says to districts that you’re no longer between the rock and the hard place, that you, as any other publisher, have the right to decide what will and will not be published.”

Noting that “districts today are confronted with the potential for all kinds of litigation,” Mr. Howe, who is a partner in the Chicago law firm of Howe and Hutton, said the Court’s ruling “helps minimize the risk that they’ll be taken to court over an article in a school newspaper.”

Mark Goodman of the Student Press Law Center, a Washington-based advocacy group that assisted the former students who filed the suit, strongly attacked the decision.

“The fact is that you can’t teach students quality journalism without allowing them press freedoms,” he argued.

“Many high-school students I’ve spoken to have said that they will not change their papers’ policies until they are forced to,” he said. “But they’re probably in the minority.”

“I’d expect that many more will be subtly intimidated to no longer cover topics like pregnancy, divorce, aids, or others of vital importance to them,” he predicted.

Mr. Goodman said that last year his group received more than 600 inquiries from student journalists seeking legal advice regarding the censorship of their publications.

“Censorship is going on now,” he said. “One can only guess what will happen in the aftermath of this ruling.”

“We have to make a decision,” Mr. Goodman continued. “Do we believe that students have a right to express viewpoints that don’t go along with those of the rest of society, or do we clamp our hands over their mouths so we don’t have to listen?”

The Hazelwood case began in May 1983 when the principal of Hazelwood East High School in suburban St. Louis ordered the deletion of two pages from Spectrum, a student newspaper produced as part of the school’s journalism course, because he objected to a pair of articles--one on girls at the school who had become pregnant and another on the effects of divorce on students.

The principal said he prevented the stories from being printed to protect the privacy of students and parents referred to in them, to avoid the appearance that the school endorsed the sexual mores of the pregnant girls, and to shield younger students from “inappropriate” material.

He also said he had “serious doubts” that the articles comported with the journalistic rules of fairness and privacy taught in the course.

Three editors of Spectrum filed suit against the principal and the district, charging that the principal’s action violated their First Amendment right to freedom of expression.

A federal district judge held in May 1985 that because the paper was produced as part of the school’s curriculum, the student journalists were not entitled to the same degree of First Amendment protection as professional reporters.

A federal appellate court overturned that ruling in July 1986, holding that the paper was a constitutionally protected public forum for student expression. Applying the standard set by the High Court in Tinker, it ruled that official censorship is justified only if articles threaten to result in substantial disruption or to subject the school to a lawsuit.

White’s Opinion

Writing for the majority, Justice White drew a distinction between “a student’s personal expression,” which is protected by the Tinker decision, and speech that occurs “as part of the school curriculum.”

“Educators are entitled to exercise greater control over this second form of student expression,” he wrote, “to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that views of the individual speaker are not erroneously attributed to the school.”

He was joined in his opinion by Chief Justice William H. Rehnquist and Associate Justices John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia.

Schools, Justice White wrote, “must be able to set high standards for the student speech that is disseminated under [their] auspices--standards that may be higher than those demanded by some newspaper publishers and theatrical producers in the ‘real’ world--and may refuse to disseminate student speech that does not meet those standards.”

Such standards could include speech that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences,” he said.

“A school must also retain the authority to refrain to sponsor student speech that might reasonably be perceived ... to associate the school with any position other than neutrality on matters of public controversy,” the Justice continued.

“Otherwise,” he said, “the schools would be unduly constrained from fulfilling their role as a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

“Accordingly,” he concluded, “we hold that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression.”

Brennan’s Dissent

In his dissenting opinion, Justice Brennan castigated the majority for creating an exception to the standard set under Tinker.

“The Court today casts doubt on Tinker’s vitality,” he wrote in an opinion joined by Associate Justices Thurgood Marshall and Harry A. Blackmun. “Instead, it erects a taxonomy on school censorship, concluding that Tinker applies to one category and not another.”

“The Court does not, for it cannot, purport to discern from our precedents the distinction it creates,” Justice Brennan maintained.

The Court has never “intimated a distinction between personal and school-sponsored speech in any other context,” he said.

He described the majority’s ruling as “no more than an obscure tangle of three excuses to afford educators ‘greater control’ over the school-sponsored speech than the Tinker test would permit: the public educator’s prerogative to control the 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 these excuses, once disentangled, supports the distinction that the Court draws,” he argued. “Tinker fully addresses the first concern; the second is illegitimate; and the third is readily achievable through less oppressive means.”

“If mere incompatibility with the school’s pedagogical message were a constitutionally sufficient justification for the suppression of student speech,” Justice Brennan wrote, “school officials could [convert] our public schools into enclaves of totalitarianism that strangle the free mind at its source.”

“The First Amendment permits no such blanket censorship authority,” he asserted.

“Tinker teaches us,” he continued, “that the state educator’s undeniable, and undeniably vital, mandate to inculcate moral and political values is not a general warrant to act as ‘thought police’ stifling discussion of all but state-approved topics and advocacy of all but the official position.”

“Even in its capacity as educator, the state may not assume an Orwellian guardianship of the public mind.”

A version of this article appeared in the January 20, 1988 edition of Education Week as Court Upholds Censorship of Student Press


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