25 years later, a look at one generation under Hazelwood

It was only a matter of hours after the decision in Hazelwood School District v. Kuhlmeier was read before its effects began being felt nationwide.

Nick Ferentinos learned of the Hazelwood ruling right arriving at Homestead High School on Jan. 13, 1988. The California journalism adviser and his students had been following the case and had even produced a two-page spread about it in an October 1987 issue of the student newspaper.

The Epitaph planned to send an issue to the printer the next day that included a story about a student with HIV. The paper was withholding the student’s name and had spent considerable time vetting the piece.

At the time, HIV/AIDS was still a taboo topic that people were unsure how to approach. Few publications, student or professional, were devoting much attention to individuals with the disease, Ferentinos said.

Still, the staff felt they had a responsibility to their readers to cover the issue, said Mike Calcagno, The Epitaph’s editor-in-chief at the time.

“We didn’t feel we could serve that mission if we didn’t address issues like sexuality,” Calcagno said. “These things were relevant to high school students at the time, and we thought we had all kinds of administrative support for the class.”

Ferentinos learned otherwise that morning, after the school’s principal told him the paper couldn’t publish the article. He cited that morning’s Hazelwood ruling — the first of many times in the next days, months and years in which administrators would cite the ruling as a defense for censoring student speech.

Stunned by the principal’s decision, Ferentinos mentioned it to a San Jose Mercury News reporter who called him seeking a comment reacting to the Supreme Court’s decision. Ferentinos told him about the effect the ruling was already having, and a story about the censorship went on the wire and made national news.

The national attention ultimately prompted Homestead High administrators to walk back their decision. The next day, the California Department of Education said the ruling didn’t apply to students in the state because of its Free Expression law passed in 1977, which protects students from administrative censorship.

The Epitaph’s story eventually was published, but the near-censorship was difficult for staff to understand, Calcagno said.

“At the time it was stressful, and we worried,” he said. “We had some distant ruling come down really thinking that it didn’t apply to us. Then learned that it actually did, it was difficult to take at the time.”

In the first few months of Hazelwood, a Florida school cited the decision when censoring articles about teenage sexuality. A school in Virginia wouldn’t allow the student newspaper to publish the results of its survey on teen alcohol and drug use. And a Tuscon, Ariz., community college started asking if it could apply the ruling to its adult students as well.

In the 25 years since the ruling, thousands of students have experienced the ruling’s impact first-hand. Many knew little of the case before finding themselves censored; others knew of it from their journalism textbooks and classes but never anticipated it would actually apply to them.

Members of both the journalism and educational communities say they have been surprised by the degree to which Hazelwood has been extended by schools and courts to apply to everything ranging from student newspapers to textbook choices and even to student speech at the collegiate level. In Texas, it was even used to back a school’s decision to remove a cheerleader from the team after she refused to cheer for a basketball player accused of raping her.

The case, revisited
Cathy Frey, formerly Cathy Kuhlmeier, said that when she and her classmates brought the lawsuit against their school district they felt really confident in the case because their former adviser had taught them about their rights.

The students at Hazelwood East High School had tried to publish a two-page spread featuring articles about teen pregnancy, runaways and the impact of divorce on teens. Frey, who was editor of the paper at the time, said the staff got the idea for the stories from looking at old issues of The Hazelwood Spectrum and were trying to update the pieces.


Leanne Mosby, left, and Cathy Frey, right, said in November at a conference on Hazelwood’s effects they were surprised by how the ruling had been applied. Frey, who was editor of the paper when she, Mosby and another student brought the lawsuit, said she felt as though they had “crushed journalism hopes for students.” (Sara Gregory, SPLC)

When the principal reviewed the issue, as was the practice at the school, he decided to cut the two pages out of the planned six-page edition. He didn’t tell the student journalists of his decision; they found out only after the paper had been printed and the four-page issue, minus the spread, was delivered to the school.

Later, Principal Robert Reynolds said he censored the articles because they were inappropriate for student readers and because the articles were not fair, balanced pieces.

Frey and two staff members, Leslie Smart and Leanne Tippett, decided to sue with the help of the American Civil Liberties Union. Their lawsuit was filed a few months later in a federal district court.

Smart and Tippett, now Leanne Mosby, graduated right after the issue was published; Frey, a junior, said her last year at the school was frustrating. She said Reynolds kept a close eye on her after becoming upset by an appearance she made on The Phil Donahue Show talking about the censorship.

“Once it started progressing it felt kind of overwhelming,” Frey said.

By the time she was in college, Frey said the case had quieted down. She was in her last semester of college when the Supreme Court’s decision finally came down, ruling that Reynolds was allowed to censor the issue.

The court said the paper wasn’t a “public forum” because it was produced as part of a class. Schools could censor student speech, the court said, based on a “legitimate pedagogical concern.”

The ruling curtailed existing student speech rights, which up to that point had been determined based on the ruling in the 1969 Tinker v. Des Moines Independent Community School District case. In Tinker, the court ruled that students and teachers did not “shed their constitutional rights” at the schoolhouse gate. Schools may censor students only if they can prove the speech would cause a “material” disruption to the school.

Mosby said the ruling didn’t come as a shock — she wasn’t optimistic after the Supreme Court agreed to hear the case — but more so as a disappointment. Frey agreed with her.

“When it finally came down that we’d lost, it felt like we’d just kind of crushed journalism hopes for students,” Frey said. “That was never really our intent.”

The purpose of journalism education
The journalism being censored under Hazelwood is often the type of public service truth-telling that is charateristic of the profession’s best work.

In 2002, a high school student in Michigan wrote an investigative piece looking into one couple’s claims that the school bus barn’s emissions were responsible for the husband’s lung cancer.

The story was pulled by the school district’s superintendent, who said the piece lacked research, said Gloria Olman, who advised The Arrow at the time.

Katy Dean, the author of the censored story, said she was surprised something like that could happen, even though she had learned about Hazelwood.

“I though we had progressed in society that we no longer suppressed factual stories,” Dean said.

A district court eventually ruled that that The Arrow was a public forum where Hazelwood did not apply. Dean said she wished her case could have gone farther to try and challenge Hazelwood.

In the wake of Dean’s lawsuit, Olman said the school imposed restrictions on her that made her life more and more difficult as the case moved to court. 

Olman was required to report to administrators about student behavior, including drinking. She felt it limited her role as an adviser because students could not be honest with her.
“It was extremely difficult and I couldn’t let the students know what was happening to me, the pressures that were being put on me,” Olman said. “There were mornings I was crying before I left for school, then you have to put on your big girl face and act as if all is well.”

Kathleen LaRoue said she felt similar pressures from administrators when she was an adviser to Madison County High School’s student newspaper in Virginia.
The students wrote about the poor condition of the school’s buildings, which were old, run-down and full of structural problems, LaRoue said. After the superintendent read the piece, it was immediately censored and LaRoue was placed on probationary status, she said.
LaRoue said the piece was “well-researched, 100 percent factual,” which administrators never questioned, she said. First, the superintendent told her it would cause “political problems,” then he said there were grammatical errors.

“The reason we were told in private that this was done was that they were worried the school board would read it and not give them money to fix the building,” she said.

Shortly after, LaRoue was removed from advising the newspaper and moved to an alternative education program with only a handful of students. She left the district and now teaches history classes at a Virginia Beach school.

The censorship at Madison was never brought to court, and the paper is still subject to prior restraint, LaRoue said.

At a November conference on the ruling, David Cuillier, the director of the University of Arizona’s journalism school, said that one of the main problems with how Hazelwood is applied is that many administrators don’t understand the purpose of journalism.
“It’s not to provide information that’s gramatically correct,” Cuillier siad. “That’s not our primary intent. So when we talk about pedagogical reasons for journalism education and teaching, it’s not that we correct their typos and make sure they follow AP Style. It’s that we teach them to learn to challenge to get the information that people need.”
Mark Goodman, a professor and Knight Chair in Scholastic Journalism at Kent State University who was executive director of the Student Press Law Center when the ruling came down, echoed that thought.

Hazelwood has essentially created scholastic journalism goals that are different from professional journalism standards, he said.

“School officials who are not legally obligated to have the least concern about quality journalism can justify their acts of censorship independent of quality journalism concerns, and that makes for a real problem,” Goodman said.

Cuillier sees a big connection between the implementation of Hazelwood over the last 25 years and the declining civic readiness he sees in the students that enroll at his school, noting that many arrive lacking basic critical thinking skills.

“I have been so alarmed by the kinds of students coming into our college programs who are completely unprepared for what journalism is about,” Cuillier said.

“They think it’s OK to be told what to print and what not to print. They don’t challenge authority like they should. We have to reprogram them. We have to retrain them.”

Cuillier’s concerns have been echoed by leaders in the education fields, who say students aren’t being given an opportunity to discuss controversial topics because of the way Hazelwood has been applied.

Ted McConnell, the Campaign for the Civic Mission of Schools’ executive director and an SPLC board member, said there’s been a big drop in the amount of time schools devote to civics education as well as a change in how they cover the topic.

A half century ago, high students were required to take multiple courses on civic issues before graduating; now they might take one. Then, students were encouraged to discuss contemporary issues, even when they were controversial. Not anymore, he said.

“We’re falling down on educating the next generation in how their rights and responsibilities as citizens in this country work,” McConnell told the November conference.

Effective, high-quality student journalism is an “essential component” of civic learning that helps develop democratic communities in school, McConnell said. Without allowing students to “take government out for a test drive,” students get the wrong impression of democracy.

“The message that sends is, ‘yes, we talk a good game about democracy — but it doesn’t apply to you,’” McConnell said.

But there are issues with allowing student speech on controversial topics, said Neil Ramee, who represents Wake County Schools in Raleigh, N.C. Ramee said schools are in a difficult position.

“If schools were to allow more or to be required to promote and sponsor more student speech, what would happen?” Ramee asked the audience in November. “You’ll get complaints at a minimum — controversy and distraction from the educational mission.”

Ramee said there’s a difference between allowing students to wear black armbands in protest, as Tinker did, and allowing a student newspaper to publish an editorial that is critical of the Vietnam War. Forcing schools to support and allow editorials like that is “in a way” similar to compelled speech, he said.

“It’s like you’re compelling the school unconstitutionally to take a position on the Vietnam War,” Ramee said.

There is a balance that has to be struck between students’ interests and those of parents and schools, said Tom Hutton a Honolulu-based laywer and a former attorney for the National School Boards Association.

“The law compels parents to trust schools with their children,” Hutton said. “Schools have to worry about parental prerogative and age appropriateness of the content.”

Hazelwood exists so that in difficult situations the schools have some authority over their school-sponsored publication, Hutton said. However, that does not mean schools have free reign.

Hazelwood is not carte blanche for educators to censor anything they don’t like. It does come back to if they can articulate a legit pedagogical reason or privacy considerations,” Hutton said. “Schools run into trouble if they think they have a free hand entirely.”

Hazelwood’s limits have been tested several times since the ruling itself, and the various circuit courts have differed in their interpretation of the ruling. Five circuit courts say it applies to teacher’s classroom speech, while three say it does not. Two say the ruling permits viewpoint-based restrictions; three say it does not.

The circuit courts are equally split when it comes to the issue of whether the ruling applies to college students. Four circuits have definitively applied Hazelwood at the college level, while only the First Circuit has said it does not.

Emily Gold Waldman, a constitutional law professor at Pace Law School and an Hazelwood expert, told an audience that gathered in November to discuss the ruling that the circuit splits are the result of an “over-extension” of Hazelwood in which it has been used to apply to a wide range of groups not specifically mentioned in the ruling itself.

“Once Hazelwood is interpreted as applying to all these different contexts — students, teachers, outside entities — it’s not possible to come up with a uniform answer,” she said. “The contexts are just too different.”

Hazelwood’s lasting impact
Hazelwood’s effects on students has been profound, said Mike Hiestand, an attorney for the Student Press Law Center for the last 20 years.

Not as many censorship cases make it to court anymore because the Hazelwood ruling was so bad for students, he said. Students and teachers are more cautious about taking cases to court out of a fear that future rulings could restrict student speech even further.
More troubling though, are the chilling effects it has on students, who seem much less likely to push controversial issues that students a generation or two ago.

“You hear from advisers that are 40- to 50-years-old who lament about how they are often the most radical person in the newsroom among this group of late teen to 20-year-olds,” Hiestand said.

LaRoue said that when her students were censored, a few were upset, but most were surprised by how much more upset she was.

“Some of them felt extremely violated,” she said. “But others felt this was just par for the course.”

Ferentinos agreed and said he believes the fears of the journalism community in 1988, when the ruling came down, have come true. Now, many of high school reporters are afraid to tackle any kind of topic that they think could get them censored — so they don’t, he said.

Students aren’t the only ones who feel the pressure of censorship, Olman said.

“Students are afraid to cover topics, perhaps if the students aren’t the teachers are. The teachers will be threatened; they’ll lose their jobs,” Olman said. “If they’re not tenured the district will just release them. If they are tenured, the district will keep them in the building but take away publication.”

Capri Coffer, who was editor of Kentucky State University’s yearbook when administrators censored the book in 1994 and who sued and won her case when it went before the Sixth Circuit, said student journalists need to pursue excellent journalism even if they fear they will be censored.

“I would tell them not to back down and not to be afraid,” she said. “We have a court system in place for this very reason.”

Despite the outcome in her case, Frey said that she didn’t regret standing up for what she believed in and that she encourages her own children to stand up for what they believe in as well.

“Everyone always has the impression that it won’t do any good to speak up but it will, because if you believe strongly in something, you can maybe change things for others,” Frey said. “If nobody does nothing will ever be changed.” 
By Bailey McGowan and Sara Gregory, SPLC staff writers.

Hazelwood through the years

  • MAY 1983: Hazelwood East High School’s principal decides to cut two pages from The Spectrum, the school’s student newspaper.
  • JAN. 13, 1988: In a 5-3 decision, the Supreme Court hands down its ruling in Hazelwood School District v. Kuhlmeier, ruling that a school-sponsored newspaper produced as part of a class and without a “policy or practice” establishing it as a public forum for student expression could be censored if administrators demonstrated a reasonable educational justification.
  • JAN. 5, 2001: The Sixth Circuit Court of Appeals rules that Hazelwood does not apply in a lawsuit brought by a Kentucky State University student and the editor of the school’s yearbook, which was censored in part because administrators objected to the color of the cover, which was not one of the official school colors.
  • NOV. 17, 2004: A district court sided with the editor of a Michigan student newspaper whose school prohibited her from publishing a story about a couple who believed the husband’s cancer had been caused by emissions from the school district’s bus barn. The court said there was no legitimate pedagogical reason for the censorship.
  • JUNE 20, 2005: The Seventh Circuit Court of Appeals ruled against three Governors State University student journalists who sued when their dean put a hold on publishing without prior review. The school argued that Hazelwood applied at the college level, which the court agreed with — a first.
  • JUNE 25, 2007: Ruling on the infamous “Bong Hits for Jesus” case, the Supreme Court declined to apply Hazelwood in a 5-4 ruling that said an Alaskan school could punish the student’s speech because schools had a “compelling interest” in deterring drug use.
  • SEPTEMBER 2010: The Fifth Circuit Court of Appeals threw out a lawsuit brought by a Texas cheerleader who said she was kicked off her team because she refused to cheer for the basketball player accused of raping her. The court said that in her role as a cheerleader, she served as a “mouthpiece” for the school and that the school did not have to support her decision not to cheer.