January 13, 2012
According to two landmark Supreme Court decisions, 1943’s West Virginia State Board of Education v. Barnette and 1969’s Tinker v. Des Moines Independent Community School District, they do.
Since Tinker, though, Supreme Court decisions on the topic have tended towards limiting, rather than expanding, student speech rights.
24 years ago today, the Supreme Court decided one of the most significant of such rulings on school speech – Hazelwood School District v. Kuhlmeier.
Hazelwood involved a school principal deleting two articles from a school paper.
One article described school students’ experiences with pregnancy and another article discussed the impact of divorce on students at the school.
Before publication, page proofs were submitted to the principal, who objected to the content of the articles.
Believing that there was not enough time to make changes before publication, the principal ordered the articles to be deleted.
Several high school students sued, claiming a First Amendment violation.
The district court disagreed, but it was overturned on appeal.
The Supreme Court then reversed the appeals court, finding that the school district had not violated the students’ free speech rights.
In making this decision, the majority first found that the school paper did not qualify as a “public forum,” which is the platform of speech that previous Court decisions have ruled warrants the highest level of speech protection.
The Court distinguished Hazelwood from Tinker on this issue by emphasizing the difference between a student speaking on school premises (Tinker) and a school maintaining “authority over school-sponsored publications.”
Thus, school officials were free to impose “reasonable restrictions” on student speech in the paper.
Exactly what “reasonable” means, though, was determined by the Court with no precedential support.
Instead, the majority examined the facts in more detail.
The Court found it reasonable that the principal cut the pregnancy story because the pregnant students, although not named, might be identified from the text (testimony from a teacher revealed that she would have been able to identify at least one, if not all three pregnant students).
Further, the principal believed that the article’s references to sexual activity and birth control were inappropriate for 14-year-old freshmen.
Given its historic (and current, for that matter) propensity to deal with sexual speech as obscenity, it is unsurprising that the Court found this restriction “reasonable.”
Lastly, the principal objected to the divorce article because the page proofs he was furnished identified by name a student who complained of her father as an inattentive parent (as one who chose “playing cards with the guys” over family).
The majority found the principal’s rationale – that the father was entitled to an opportunity to defend himself as a matter of journalistic fairness – reasonable and upheld the restriction (the final draft, which the principal supposedly hadn’t seen, removed the student’s name).
Thus, the school ruled that no First Amendment violation had occurred.
In so doing, the Court cemented Hazelwood as one of the most significant decisions in school speech jurisprudence.
Recently, the Supreme Court relied heavily on Hazelwood in deciding Morse v. Frederick – the “BONG HiTS 4 JESUS” case.
The Court ruled in Morse the same way it ruled in Hazelwood – no First Amendment violations occurred.
Considering recent Supreme Court jurisprudence on free speech (excluding campaign finance laws, of course), it is likely that this tightening of restrictions on student speech will continue.
Luckily, high school only lasts four years, so students can look forward to full First Amendment speech rights after they graduate.