Censorship Decision Is Rapidly Coloring Other School Cases
Less than a month after the U.S. Supreme Court's decision expanding the power of school officials to regulate student speech, lower courts in three widely differing cases have cited the ruling in upholding the actions of school administrators.
The court decisions, which came less than a week apart, support a Florida school board's banning of a humanities textbook, a California principal's seizure of an "April Fool's" edition of a school newspaper, and a Nebraska school district's decision not to provide meeting space to a student Bible club.
A fourth court also briefly noted the High Court's decision in holding that districts can require student athletes to submit to random drug testing. (See related story, page 5.)
The cases are the first to cite the Court's Jan. 13 decision in Hazelwood School District v. Kuhlmeier, which backed a Missouri high-school principal's decision to prevent his school's student newspaper from publishing articles on divorce and teen-age pregnancy.
In that case, the Justices held 5 to 3 that administrators have broad authority to regulate student expression in school newspapers, theatrical productions, and other forums that are part of the curriculum.
Such speech may be censored, the Court said, if it conflicts with the school's "basic educational mission," if it is "inappropriate" for a young audience, or if it might be perceived as bearing the "imprimatur of the school."
Some of the lawyers involved in the three recent decisions said they believed the judges hearing their suits had been waiting for the High Court's ruling before issuing theirs.
But two education-law experts downplayed the impact of the Hazelwood decision on those rulings.
"I think the decisions would have come down the same way even before Hazelwood," said Gwendolyn H. Gregory, deputy general counsel for the National School Boards Association. "These are the types of decisions that should be made by administrators and school-board members, not by the courts."
Jay Heubert, professor of education law at the Harvard Graduate School of Education, agreed that the cases "may have been decided the same way even prior to Hazelwood."
The Hazelwood ruling, he said, confirms that with respect to student speech that arises within the school's curriculum "and all expression that can reasonably be seen as the school's opinion, the school has the authority to regulate."
Right To Censor Curriculum
In Jacksonville, Fla., a federal district judge has ruled that the Hazelwood decision also grants school administrators broad authority to censor the school curriculum itself.
In the Florida case, four parents filed suit against the Columbia County school board in 1986, charging that the board violated their children's free-speech rights when it banned a humanities textbook. The removal of the book, they alleged, denied the children access to ideas that the board found objectionable. (See Education Week, Dec. 10, 1986.)
The objections centered on two classics of literature: Chaucer's "The Miller's Tale," and the Greek comedy "Lysistrata" by Aristophanes.
The controversy over the book, The Humanities: Cultural Roots and Continuities, Volume I, published by D.C. Heath & Company, began in September 1985, when the Rev. Fritz Fountain filed a formal complaint asking the district to review its use of the text.
Mr. Fountain is minister of the Berea Baptist Church in Lake City, and his daughter attended the high school that was then using the state-approved book. He told school officials that his daughter was offended by the sexual overtones in both works, which were not required reading in the course.
The school board and the superintendent decided to remove the book from the humanities course, saying the portrayals of sexuality and vulgar language in the two stories made them inappropriate for high-school students, violated the values of the district's constituents, and were not necessary for instruction in the course.
The book was removed from the course but has remained in the school library. The plaintiffs argued that a 1982 U.S. Supreme Court ruling limiting the power of school boards to remove books from school libraries applied to their case.
In that case, Board of Education, Island Trees Union Free School District v. Pico, a plurality of the Court held that officials may not remove books from libraries "simply because they dislike the ideas contained in those books."
Harm 'Difficult To Apprehend'
But U.S. District Judge Susan H. Black ruled in the Florida case, Vergil v. School Board of Columbia County, that the school board was empowered to remove the book from the curriculum.
The Hazelwood ruling, the judge wrote in her Jan. 29 decision, "resolves any doubts as to the appropriate standard to be applied whenever a curriculum decision is subject to First Amendment review."
The court's role, she wrote, is to determine whether the "pedagogical goals motivating the school board's decision were legitimate ones."
In the 19-page opinion, Judge Black also chastized the board for censoring the two classics.
"The court finds it difficult to apprehend the harm which could conceivably be caused to a group of 11th- and 12th-grade students by exposure to Aristophanes and Chaucer," the judge wrote. "Indeed, authorities on Western literature are virtually unanimous in their high praise for the works of these authors."
"The court agrees with the plaintiffs that the school board's decision reflects its own restrictive views of the appropriate values to which Columbia High School students should be exposed," she continued.
Nevertheless, the judge said the Hazelwood ruling compelled her to find "that such content-based decisionmaking regarding curriculum is permissible."
Samuel Jacobson, the lawyer for the parents, could not be reached for comment last week. As of last week, the parents had not appealed the ruling.
Daniel C. Shaughnessy, a lawyer for the school board, said the Hazelwood decision "drove the last nail into any question there was" about the school board's rights.
"Under Hazelwood, it was quite clear that any time school officials are dealing with curriculum, they will have extremely broad authority to delete materials as they wish."
Cited in California
In California, a state appeals court cited the Hazelwood ruling in deciding that a high-school principal's confiscation of an April Fool's Day edition of a student newspaper did not violate a student editor's free-speech rights.
David Leeb, the former editor of the Rancho Alamitos High School newspaper, filed suit in 1984 against James W. DeLong, the school principal, after the principal seized 1,600 copies of the April 1, 1984, edition of the paper.
The paper, La Voz del Vaquero, contained a headline that read, "Nude Photos: Girls of Rancho," which appeared over a photograph of five fully dressed female students. An article in the paper said the students were waiting to have their photos taken by a photographer for Playboy magazine.
Spoof Called Offensive
Mr. DeLong said the spoof was offensive and possibly libelous, because the girls who posed for the photo had not been told about the joke. A parent of one of the students had threatened legal action if the article had been allowed to appear.
Last year, the Orange County Superior Court found that the principal had acted within his rights under California law.
Mr. Leeb, who was represented by the American Civil Liberties Union, appealed that ruling, arguing that the state education law granting school officials the authority to regulate student newspapers violated the California constitution.
The three-judge appellate panel upheld the lower-court decision, saying the state law did not grant administrators overly broad authority.
The ruling cited the Hazelwood decision, saying that districts would be hindered by not having the "power to ban speech of the sort that could cause it to be vulnerable" in a libel suit.
Gary C. Williams, Mr. Leeb's lawyer, said his client had not decided whether to appeal the decision.
"Clearly, the panel was waiting to see what the Supreme Court would do," he said.
Mr. DeLong, now principal of Garden Grove High School, said it was his understanding that the state court had decided not to rule in the case until after the Supreme Court's Hazelwood decision, even though the federal suit had no direct bearing on the California case.
Bible Club Prohibited
In another case in which Hazelwood was cited, a federal district judge in Nebraska has ruled that an Omaha high school does not have to allow a Bible-study club to meet on campus.
In that case, nine students at Westside High School filed suit in 1985 against the Westside Community School District for prohibiting them from forming a school-sponsored after-school Bible-study club. The students claimed the school's policy violated their rights to free speech and free exercise of religion.
The students claimed that by allowing about 30 school-sponsored clubs to meet, the school had created a "limited open forum." They contended that the decision to bar them from meeting on school grounds violated the federal Equal Access Act of 1984, which forbids schools that have created such forums to discriminate against student groups on the basis of the content of their speech.
The district argued that it had a "closed forum," because all of the school clubs were directly related to the curriculum, had to have formal sponsorship by a faculty member, and were under the control of the school administration.
The district also challenged the constitutionality of the Equal Access Act, which prompted the U.S. Justice Department to intervene in the case on behalf of the plaintiffs.
'Restrictions' Said Legitimate
In ruling on the case, Mergens v. The Board of Education of the Westside Community Schools, U.S. District Judge C. Arlen Beam held in the district's favor, saying it had not created an open forum and thus could set limits on student expression.
"The Supreme Court recognized in Hazelwood that when a public forum has not been created by a school, school officials may impose restrictions on the speech of students, teachers, and other members of the school community which are 'reasonably related to legitimate pedagogical concerns,"' Judge Beam wrote in the Feb. 2 opinion, which did not address the constitutionality of the Equal Access Act.
School administrators' reasons for refusing to permit the club, the judge wrote, "involves the school's goal of presenting a balanced view when political, religious, and economic information is dispensed" within the school.
Judge Beam said that goal is a "legitimate educational concern which reasonably justifies" the school's actions.
He noted that the plaintiffs were never prohibited from exercising their religious beliefs and expressing their ideas in informal discussions at school.
The plaintiffs filed an appeal Feb. 3 with the U.S. Court of Appeals for the Eighth Circuit. They were represented in the suit by lawyers from the National Legal Foundation, a Virginia-based organization founded by the Rev. Pat Robertson.
"My fear is that this case is going to result in the severe curtailment of student rights, not just over Bible clubs, but over their right to share opinions," said Douglas Veith, an Omaha lawyer for the students.