Interpreting Newspaper Case: New Control Isn't 'Carte Blanche'
Although the U.S. Supreme Court has expanded the power of school administrators to suppress some forms of student speech, principals would be well advised to proceed with caution before taking such action, several leading authorities on school law suggest.
The experts point out that the High Court's January ruling in Hazelwood School District v. Kuhlmeier did not strip public-school students of all their rights to free speech under the First Amendment. Principals who invoke the ruling to clamp down on a wide range of expressive activities, they say, could find themselves involved in potentially costly lawsuits.
In the Hazelwood case, the Court ruled 5 to 3 that administrators have broad authority to control student expression in school newspapers, theatrical productions, and other forums that are part of the curriculum.
Such speech, it said, can be censored if it conflicts with the school's "basic educational mission," if it is "inappropriate" for a young audience, or if the public "might rea6sonably perceive [it] to bear the imprimatur of the school."
However, the Court indicated that its decision would not allow principals to suppress "a student's personal expression that happens to occur on school premises"--a right it affirmed for students 19 years ago in the landmark case Tinker v. Des Moines Independent Community School District.
Between Tinker, which stemmed from an antiwar protest in which students wore black armbands to school, and Hazelwood, which involved the deletion of school-newspaper articles on divorce and teen-age pregancy, lies a broad range of circumstances in which potentially controversial student speech can arise.
School-law experts emphasize that the particular facts in a case--the context in which the speech occurred, the type of idea expressed, and the motivation of the censor--could well be the deciding factors in whether an administrator's decision to suppress speech is upheld or struck down by the courts.
"I'd agree that the Hazelwood decision has shifted the boundaries back to the point that administrators now have greater control over student speech than perhaps they did over the last 10 or 15 years," said Ivan B. Gluckman, staff legal counsel for the National Association of Secondary School Principals, which backed the St. Louis-area school district in a "friend of the court" brief filed in the suit.
"But we would suggest that the ruling does not give them carte blanche to step in and control the entire content of a newspaper," Mr. Gluckman added.
That view was echoed by Gwendolyn Gregory, deputy general counsel of the National School Boards Association, which also filed a brief supporting the Hazelwood district.
"There are still limits as to what a district can do with regard to regulating speech," Ms. Gregory said. "For example, a principal couldn't delete every article [in a school newspaper] that took a stance against the Vietnam War and leave in every one that took a stance for it."
But Jay Heubert, a professor of education law at the Harvard Graduate School of Education who disagrees with the Court's decision in Hazelwood, said he feared that "loose language" in the ruling could be used by lower federal courts to sustain the suppression of student speech that would otherwise be protected by Tinker.
"The Court seemed to say that officials have across-the-board authority to limit any student point of view that is inconsistent with the school's basic educational mission," Mr. Heubert said. "That's a fairly broad, subjective term."
"I think the most important message to be sent to administrators," he added, "is that although the Court said they are not obliged by the First Amendment to permit certain forms of student expression, they should rise to the occasion by choosing to respect the importance of allowing students to express their views."
Mr. Gluckman, Ms. Gregory, and Mr. Heubert agreed to assess five hypothetical situations in which high-school principals suppress student speech arising in different contexts, and to decide whether a court would uphold or reverse the actions. All noted, however, that different factual situations could change the outcome. Following are the situations and the experts' responses:
The editors of a school newspaper, which is produced as part of the school's journalism course, decide to publish an editorial endorsing a certain candidate for President of the United States. The principal orders the students not to publish the editorial on the grounds that the public might mistakenly believe that the school was endorsing the candidate.
Mr. Gluckman: "I don't think that would be appropriate. To me, this is politics with a capital 'P,' which the First Amendment is intended to protect. I do think that the principal, in a role akin to that of a managing editor, could require the editors to permit students with another point of view to give a response."
Ms. Gregory: "I think the action would be permissible. But a better way to handle the situation would be to have a policy that the school newspaper will not endorse candidates."
Mr. Heubert: "Here is a clear example of the kind of administrative editing that would be permissible after Hazelwood. A pure form of political speech could be suppressed because it could be reasonably interpreted as the school's position on the issue. My own preference would be to state through a disclaimer that the positions in the newspaper are not necessarily those of the school, or to have a policy requiring students to publish all points of view."
A high school has a policy of permitting students in its theater course to select the plays it will stage. The students choose a play highly critical of the Reagan Administration's policies in Nicaragua. The principal vetoes their decision, saying it would cause an uproar in the community.
Mr. Gluckman: "There is a certain amount of precedent upholding the suppression of plays that seemed to support sexual experimentation. But if you get into the issue of politics, I'm not so sure those decisions would govern. It would be a much closer case."
Ms. Gregory: "I think officials would be granted a lot of leeway in picking school plays because it is curriculum-related. Deciding to choose one play over another because one is less disruptive would be a good rationale."
Mr. Heubert: "I believe the decision would be upheld because the public might reasonably believe that the play bears the imprimatur of the school. My own preferred approach would be to have a disclaimer, to allow more students to participate in the decision, or to invite debate in the community as to whether this is an appropriate topic for a school play."
All students in a high school are required to attend an assembly to hear a speaker from the Selective Service System, who will urge them to comply with their duty under federal law to register for the draft. At the start of his speech, several students unfurl a banner urging resistance to draft registration. The principal orders them to stop their protest.
Mr. Gluckman: "Students have a right to express this opinion. But Tinker indicates authorities have a right to control the time, place, and manner of student expression. If the principal was given no notice of the demonstration, and he believed it was going to be disruptive, I think he could require them to express8their views at another time."
Ms. Gregory: "This case would come under Tinker and the principal would have to show substantial disruption. I think in this case he could."
Mr. Heubert: "Even under Tinker, student speech that substantially interferes with the work of the school is something that administrators have authority to prevent."
A high school has a bulletin board in the building's all-purpose room, which is frequently used for community events after school hours. A student posts a notice stating that the school board should be encouraged to open a clinic at the school that would prescribe contraceptives to students. The principal removes the notice on the grounds that the public might believe that the school endorses that position.
Mr. Gluckman: "The key here is what the purpose of the board is. If the board is an open forum--that is, open to use by all those using the room--then the principal's action would be inappropriate. But if there are rules limiting its use, then those would have to be observed."
Ms. Gregory: "The decision would turn on whether the board is an open forum. You might also be able to make the argument that the bulletin board is a school-sponsored activity, like a student newspaper, and that there was a reasonable educational rationale for what the principal did. But if in the first place you had rules about what goes up on this thing, you wouldn't have had to worry."
Mr. Heubert: "The threshold question is whether the board is generally available for the expression of views by students. If it is open to individuals' points of view, and if it is generally understood that the announcements do not carry school approval, then I'd say the argument for the student is pretty strong."
Several students come to their school wearing buttons supporting a Presidential candidate. The principal orders the students to take them off.
Mr. Gluckman: "I think in this case that would be improper. But if the school has a blanket prohibition on the wearing of buttons, I think the action would be upheld."
Ms. Gregory: "In Tinker, the issue was discrimination on the basis of content. But you can have reasonable rules about the wearing of buttons, T-shirts, and that sort of thing."
Mr. Heubert: "This is almost the exact situation as in Tinker. If the buttons are not disruptive and the message is not attributable to the school, I think wearing them would be permissible."