Overcoming Hazelwood


High school journalist's victory over administrators who censored her could give her peers an edge over standards limiting free speech in student media





Hazelwood v. Kuhlmeier turned student journalism on its head by vastly expanding the amount of control school administrators could exercise over some forms of school-sponsored student expression, including some student newspapers.

The 1988 Supreme Court ruling reflected a paradigm shift from the 1969 case Tinker v. Des Moines, a case which had given students more free expression protection.

Now, the tides may be turning again, thanks to former high school student Katy Dean.

After waging a war of press freedom against her school district for censoring a story on a community member’s claim that school bus fumes contributed to his lung cancer, a Michigan federal judge ruled in favor of Dean and called the school’s position of censorship "indefensible."

While others have merely chipped away at the Hazelwood wall restraining the swells of student press, Dean has taken a full-force, sledgehammer swing, and the rights of student journalists are slowly trickling out, say journalism experts.

Where it all began

The story, which would have been published in the Utica High School Arrow in March 2002, was pulled by administrators who said it contained factual errors. School officials also argued that Dean, then-sports editor of the paper, failed to get comment from administrators about a lawsuit filed against the school district.

Utica resident Rey Frances and his wife, Joanne, brought a suit against the district in 2002, alleging that exhaust from a bus garage adjacent to their house contributed to Rey’s lung cancer.

For her story, Dean contacted school district and township officials, who refused to comment, as the story noted. She consulted scientific studies on carcinogens and included a line stating that "previous studies had not proven the carcinogenic affects [sic] of exposure to diesel exhaust."

Dean quoted sources including USA Today and the Environmental Protection Agency in her article.

But Utica High School Principal Richard Machesky was not satisfied. He ordered longtime Arrow adviser Gloria Olman to pull the story -- and an accompanying editorial and cartoon -- hours before the paper went to print, and she begrudgingly gave the message to her staff.

The Arrow, which had received national, regional and state awards nearly every year, had not been censored in more than 25 years.

Outraged but concerned they would be kept from distributing the paper if the story were printed, staff members killed the story and wrote an editorial on censorship. Next to the editorial was a black box with "Censored" stamped in white lettering.

In a subsequent letter to the staff, Machesky wrote, "In the case of the Arrow, the school principal acts as the newspaper’s publisher and the appropriate action was taken."

After mulling over the situation, Dean decided to fight the decision. In a May 2002 post on the Online Journalism Review, Dean detailed the thought process that led to her choice.

Her initial reaction was disbelief. Then, she wrote, the staff got mad:

"It wasn’t until after we went to press that the staff realized that something had changed and that we know [sic] longer could write about any topic we chose … At that point we realized we would have to fight for our First Amendment to the greatest extent possible."

And so it began. Only a year later did Dean finally find an attorney willing to take on the case. She sued for violations of her First Amendment rights and asked the court to order the school to print the story with a statement denouncing the school’s actions.

In October 2004, Dean finally saw victory with the judge’s ruling.

Motion granted

Although District Judge Arthur Tarnow made his ruling from the bench in late October, his official written ruling was not released until Nov. 17. Still, the 32-page order denying the school district’s claims served as a detailed explanation of his verbal ruling against the district.

First, Tarnow established that the Arrow was a limited public forum and that the school promoted it to students as such. By allowing students to take the newspaper class more than once for credit, the school was recognizing the class as more than merely an academic process but also an extracurricular production.

Tarnow found that Arrow staff members had no practice of submitting content to school officials for prior review nor did the faculty adviser regulate the subjects student reporters covered. The newspaper’s curriculum guide states that students are expected to utilize an understanding of the rights and responsibilities of the First Amendment.

Citing a 2003 case, Tarnow ascertained that a school facility that has been opened up to indiscriminate use by the general public, or by some segment of the public -- such as student groups -- shall be deemed a public forum.

Based on these and other factors, management of the Arrow lies in students’ hands, Tarnow said.

"In practice, any control that [the school] may have exercised over the Arrow was delegated to the paper’s student staff," the ruling states. "Such practice indicates that the Arrow was intended to serve as a limited public forum."

The ruling specifies that, in regards to limited public forums, only reasonable time, place, and manner regulations or compelling content-based regulations may be imposed.

Tarnow also concluded that Hazelwood is "inapplicable" in the case of publications designated by policy or practice as limited public forums.

Tarnow also found that even if the Arrow were a non-public forum, "the [school’s] suppression of Dean’s article was unreasonable."

Based on expert testimony provided to the court, Tarnow also found that Dean’s article and the newspaper’s decision to print it was reflective of the traditions and practices of good journalism in a democracy.

"Defendants have not identified, and the Court cannot ascertain, a significant disparity in quality between Dean’s article in the Arrow and the similar articles in ‘professional’ newspapers," the ruling states.

The court found that the school’s reasons for spiking Dean’s article were poor attempts to disguise the administration’s problem with the views being expressed. Censorship that stems from differences in opinion cannot be considered viewpoint-neutral, the ruling said, which the First Amendment requires even in a non-public forum.

"If the role of the press in a democratic society is to have any value, all journalists -- including student journalists -- must be allowed to publish viewpoints contrary to those of state authorities without intervention or censorship by the authorities themselves," Tarnow said.

"Without protection, the freedoms of speech and press are meaningless and the press becomes a mere channel for official thought."

Hildy Corbett, spokeswoman for Utica Community Schools, said the district would not appeal the ruling but is looking into student media policy changes. The district will follow the law, she said, though it does not agree with the ruling.

Overcoming Hazelwood

Most notable are the case’s implications regarding student press law. Experts agree the case is one of the first of its kind to hold ground against Hazelwood, in which the Supreme Court ruled school officials can censor non-forum student publications when they have legitimate educational reasons.

The Supreme Court gave examples in the 16-year-old decision of what might fit within this standard, including material deemed "ungrammatical, poorly written, inadequately researched, biased or prejudiced."

Still, the Hazelwood ruling does not allow officials to censor material with which they disagree or find unpopular.

Michigan does not have an anti-Hazelwood law, but Dean’s success in countering her censorship may pave the way for high school press freedom in the state.

Jane Briggs-Bunting, director of the School of Journalism at Michigan State University, submitted expert testimony in the case. To her, the facts indicated it would be a successful battle against Hazelwood.

"To me it was the best set of facts I have seen since Hazelwood," she said. "It was such a gross abuse of Hazelwood. This was pure censorship, prior restraint."

In her testimony, Briggs-Bunting argued that the article appeared well-researched for a high school newspaper story and the district’s claim of bias was unjustified.

Dean’s attorney, Andrew Nickelhoff, said the ruling would help to clarify the limits of Hazelwood. By rejecting the school’s list of complaints and reasons for censoring the story, the judge supported Dean’s stance that "there was no legitimate reason for censoring the news story," he said.

Briggs-Bunting agreed.

"It should put school administrators on notice in Michigan that censoring a story for [their] public image is unconstitutional restriction of press," she said.

Victory and the afterglow

"I was very excited when I found the judge ruled in our favor," Dean said. "I had the expectation that any fair judge would see things from our side."

She said she knew the process of filing suit would be tedious and would extend past her tenure at Utica High School, from which she graduated in 2003, but she was not willing to back down. She attends Oakland Community College, working her way through school with the intent to transfer to Michigan State.

"With great freedom comes great responsibility," Dean said. "I think I have always understood that."

"She is extremely determined," former Arrow adviser Gloria Olman said about Dean. "She is an independent thinker."

Olman, who has since retired her post, said the ruling serves as vindication for herself and for her students.

"I knew all along that this was an indefensible case for [the district]," she said. "It’s wonderful."

Macomb Daily Managing Editor Phil Van Hulle has followed the case at Utica High School since it began in 2002. The local paper published the censored story, editorial and cartoon along with a statement supporting Dean and the Arrow.

"I’m a huge supporter of student newspapers," Van Hulle said. "I also felt that there was something pretty, pretty strange going on given that this student newspaper had not seen a prior review policy by the principal in 20 years."

The Macomb Daily had already reported on the Frances’ lawsuit against Utica School District, so Dean’s story was not a new subject in the community.

He said he hopes the ruling will send a message to school administrators to become educated on student press rights and to learn more about the boundaries of controlling student publications.

"I think a lot of principals and superintendents are not educated, through no fault of their own," he said.

Dean agreed, adding that being ill-educated is no excuse to arbitrarily censor student expression.

The future of student journalism

Though the judge’s ruling gives a clear mandate that content cannot be censored merely because officials dislike it, Van Hulle said the direction of the Arrow lies in the hands of the new adviser and school administration.

"In the case where you have a fairly strong-willed and independent journalism instructor, [the ruling] should give [students] more strength," he said.

On the other hand, incidents of censorship have risen in schools across the country.

Briggs-Bunting said her yearly presentations on Hazelwood to Michigan student journalists are standing-room only, as students come in droves to learn how to protect their newspapers and yearbooks from censorship. She teaches students that by expanding stories beyond the scope of their schools, administrators have less room to argue that a story could be misconstrued as a school-endorsed statement.

Instead of enumerating the rights she wishes these students had, Briggs-Bunting teaches them to dodge Hazelwood by using multiple sources and broadening their stories to include off-campus perspectives and examples.

As a college professor, she also has to wean incoming freshman off the mentality that they cannot print unfavorable news, a mindset she said Hazelwood perpetuated.

"Hazelwood has created journalists who are more looking for the superficial-type coverage, who shy away from the hard journalist coverage that is so essential to this country," the professor and lawyer said.

"Now, more than ever, we need a smart, snappy, energetic press."

Whether the Utica High School ruling helps energize journalists, Dean hopes for a more fundamental outcome for students:

"It will give them the right to write the truth," she said.


Read the decision in Dean v. Utica Community Schools, No. 03-CV-71367DT (Nov. 17, 2004).

Read previous coverage:

  • Court releases opinion on Utica high school censorship case News Flash, 11/18/2004
  • Mich. school district violated First Amendment by pulling story, court rules News Flash, 10/13/2004
  • Mich. student wins Courage in Student Journalism Award for fighting censorship News Flash, 11/24/2003
  • ACLU sues Mich. school for holding article about residents' concerns over bus fumes  News Flash, 4/9/2003
  • Mich. principal censors investigative story and editorial on lawsuit facing school News Flash, 4/9/2002

  • reports, Winter 2004-05