It creeps! It leaps! Hazelwood Blob finally frozen in its tracks -- in a Texas courtroom



The original 1958 Steve McQueen version of "The Blob" is a classic of schlock-horror cinema. Although the film has been sequelized and remade, the central construct -- an amoeba-like alien slime creature that gets larger as it absorbs everything in its path -- enduringly terrifies.

The way that federal courts have applied the Supreme Court's 1988 Hazelwood standard to restrict First Amendment rights in public schools is straight out of the script of "The Blob," and equally horrifying. (That is, assuming "The Blob" actually had a script.)

From its judicial petri dish, Hazelwood School District v. Kuhlmeier -- which reduced the First Amendment protections afforded to students when they speak in "curricular" settings such as the pages of an in-class laboratory newspaper -- has bloated into a monstrosity, gobbling up chunks of public schools in its path.

The Hazelwood opinion appeared quite clearly to be limited to "curricular" speech -- that is, speech presented as part of a school-directed class activity for credit -- but, like the Hollywood Blob, the Hazelwood Blob quickly outgrew those confines.

In recent years, courts have decided that just about everything that takes place inside of a school building -- unless it is physically a part of a student's person, such as a T-shirt message or a hairstyle -- is Hazelwood "curricular" speech. This includes such dubiously curriculum-related outlets as student-painted tiles on the walls of Columbine High School, and commemorative bricks purchased by community members in a school's walkway. Indeed, it rarely seems that any square inch of school, no matter how tenuously connected with curriculum, is safe from being sucked into Hazelwood's freedom-devouring gullet.

In a recently issued ruling, a U.S. district judge in the Southern District of Texas finally halted Hazelwood's path of destruction, at least for the moment.

In his July 30 ruling in Pounds v. Katy Independent School District, Judge Lee H. Rosenthal decided that the messages in holiday cards ordered through a Texas elementary school were not Hazelwood speech. Consequently, the school violated the First Amendment by scratching out an overtly Christian message from the choices of cards available to students' families.

Attorneys for Pattison Elementary School tried to argue that Hazelwood allowed the school to do what the First Amendment almost never allows a government agency to do: discriminate for or against certain viewpoints. The school conceded that forbidding the vendor from offering a Christian message was viewpoint discrimination, but argued that viewpoint discrimination is permissible where the speech is directly attributable to the school, i.e., curricular.

But the judge found otherwise. Although the cards were ordered through the school as part of a fundraiser for art supplies, that was the end of the school connection. The messages on the cards were not chosen by the school, the cards were to be delivered to parents' homes by a private vendor, and teachers were not supervising the selection of the cards or incorporating them into lessons. Therefore, the speech was too distantly removed from school to be Hazelwood curricular speech.

Perhaps even more remarkably, Judge Rosenthal strongly hinted that the school's rationale for censoring the Christmas card offerings -- to disassociate itself from religious proselytizing -- would not even satisfy the rather minimal justification that Hazelwood requires. The Hazelwood standard requires only that the school point to some valid educational purpose for its actions, but the judge -- noting that the cards were to be distributed and viewed off school premises -- said the school presented nothing to connect the cards with "disruption of the learning environment."

That is a sound and a faithful application of the Hazelwood standard, but not one that the courts unanimously share. Hazelwood should be a meaningful and demanding check on schools' censorship authority, as Judge Rosenthal understood, and not an invitation to censor first and slap together a justification afterward.

The Hollywood Blob was defeated (though with a foreboding postscript hinting at a sequel) by being immobilized with fire extinguishers. The Hazelwood Blob has proven more resistant, but there are at least some indications that it too is being frozen in its destructive path, sparing some of its would-be victims from the monster that a tragic Supreme Court misjudgment unleashed.

Tagged: censorship