Hazelwood's rule proves hard to pin down
Courts, advisers and student journalists still struggle to interpret the decision's language
In January 1988, as student press advocates looked on, Supreme Court Justice Byron White delivered the bad news in Hazelwood v. Kuhlmeier.
It was not what student journalists wanted to hear: “Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns,” White wrote.
Twenty years later, students, scholastic press advocates — and administrators — say Hazelwood has left them under a cloud of confusion about how much power administrators have to censor student speech. What constitutes a “legitimate pedagogical concern” still remains an active topic of debate.
Not surprisingly, school administrators tend to define the term broadly. Some school board lawyers say the newspaper itself an educational tool used to teach journalistic skills. Therefore, whatever goes into the paper could be reasonably related to an educational concern.
Kelli Hopkins, attorney and director of education policy for the Missouri School Boards Association, ties pedagogy to the content of the paper and the image of the school itself.
“The way I instruct on that particular decision [Hazelwood] when I am trying to explain to folks, is I say to them, ‘What we are talking about here is … speech that is part of an instructional program and that can be seen as speech of the district, not just of the student,” Hopkins said.
If a student outlet is meant to teach a skill, exercising editorial control over it is inherently pedagogical, Hopkins said. Student newspapers nearly always fall under that standard, she said, and therefore under Hazelwood’s domain.
Student press advocated view the decision differently. To them, the only thing about the Hazelwood standard is its difficulty to apply in the real world.
Warren Watson, director of J-Ideas as Ball State University, said censoring student publications based on an educational concern violates a school’s primary purpose: to teach.
“If you really are concerned about education in the school environment, then censorship is certainly not in play,” Watson said.
Watson said principals miss an opportunity to teach young journalists about their craft when they use Hazelwood to strike a potentially controversial article from the newspaper.
“Any principal would figure out how to turn it into a learning moment without censoring the publications,” Watson said.
The decision does try to provide some guidance, and Hazelwood cited a few reasons for censoring school-sponsored student speech or other speech that might reasonably “bear the imprimatur of the school.” The court said work that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences” is fair game for administrators. As is speech that addresses subjects that are “otherwise inconsistent with a shared civilized social order,” the Court wrote. Students’ emotional maturity could also be taken into account. Subjects such as the existence of Santa Claus among an elementary school audience or “the particulars or teenage sexual activity” in a high school setting could be grounds for a principal to pull an article.
Tom Eveslage, a professor of journalism at Temple University, said when students produce well-written, well-researched pieces, they insulate themselves from “legitimate pedagogical concern” as best they can.
“[Good journalism] cuts Hazelwood off at the knees,” said Eveslage, a former Student Press Law Center board member. “When … students produce [quality journalism] I don’t think there is a legitimate pedagogical concern to stop student journalists.”
But doing high-quality work is not a complete defense.
“The problem is, of course, that lots of elementary and high schools claim that everything is pedagogical, that their task is to inculcate values as much as it is to teach who was on which side of the Civil War,” said Chris Hansen, senior national staff counsel at the American Civil Liberties Union. “Therefore every decision they want to make within the context of school is pedagogical.”
Hansen said one reason the Hazelwood standard remain murky is that many disputes are worked our without ever going to the courts — and thus do not set a precedent.
From the perspective of advisers and student journalists, “legitimate pedagogical concern” leaves a legal gray area administrators can abuse to put leverage on student media because it is so malleable a term.
Candace Perkins Bowen, director of the Center for Scholastic Journalism at Kent State University, said that administrators will often use the unclear meaning of the term as a basis to censor student media at their discretion.
“I think they sort of see it as a big ‘this says we can prior review and censor,’ Perkins Bowen said. “They don’t see the ‘but’ in it. They don’t see the parts of Hazelwood that don’t give them carte blanche.
“They clearly censor things that have absolutely nothing to do with pedagogy,” Perkins Bowen said. “Telling a publication it can’t publish about losing football games has nothing to do with the school’s educational soundness and they don’t understand the viewpoint neutrality that Hazelwood contains.”
Jane Blystone, a journalist and former high school newspaper adviser of 21 years, said advisers — stumped by the definition of “legitimate pedagogical concern” or simply unaware of their rights — will often unwittingly lead their newspaper into Hazelwood’s murky waters.
“I think that the biggest thing that we have seen is that, in schools where there are highly trained journalism advisers who establish that students have the right to choose content, they usually don’t have censorship issues,” Blystone said. “Where administrators hire people that have no experience and no training in student publications is where they get into trouble.”
Compounding the problem, Blystone said, is that administrators and advisers are often not well trained in student press law.
Blystone said when she was training to get her principal’s certification at California University of Pennsylvania, she disagreed with how one of her law class textbooks covered Hazelwood.
“I was very concerned about the rendering of the opinion because it doesn’t clearly express what I have read as the Court’s opinion,” said Blystone. “It’s the author’s rendition of what the actual opinion states, and it leads the reader to believe that the principal can censor in any situation.”
Out of a sampling of five public school law textbooks, the book Blystone used, American Public School Law, deviates little from the rest. All cover the Hazelwood decision, saying — as in Blystone’s book — that censorship decisions should be based on a school rule that advances an educational purpose and is uniformly enforced. But none of the books give examples of legitimate educational purpose or discuss limits on what might be a legitimate educational purpose.
For student press advocates, the twentieth anniversary of Hazelwood is no cause for celebration.
“This is a case that has always been confusing to people, and I don’t see it as being different than it ever was,” said Warren Watson, director of J-Ideas at Ball State University. “It was a poor case to go to the Supreme Court, and the direction that the Court gave was so vague that it has been open to liberal interpretation.
As director of an organization devoted to educating student journalists, Watson has found that Hazelwood’s legacy is seen in nearly every aspect of a student journalist’s job.
“The biggest thing that I’ve noticed is that there is a lot of self-censoring going on,” Watson said. “It has created a chilling effect that continues on student media. People are trying to navigate what is a difficult situation, dealing with a principal or administrator, and there are times when they simply won’t take that chance to write a controversial story.”
reports, Winter 2007-08