Education Week‘s Mark Walsh, a veteran Supreme Court reporter who deeply understands education law, is just out with a fascinating look behind the scenes at how the high court arrived at the First Amendment legal standard that governs much of the speech taking place in schools (and, increasingly, in colleges).
The entire piece is well worth reading, but it’s particularly enlightening for the nuggets Walsh was able to unearth from the papers of Justices Byron White, author of the majority opinion in Hazelwood School District v. Kuhlmeier, and Justice William Brennan, who wrote a stirring dissent.
Justice White’s official court papers became available just last year — 10 years from his death, as specified in his will. While nothing startling about Hazelwood emerges from the minimal surviving paper trail, it’s apparent that some back-and-forth bargaining for votes resulted in the unwieldy and confounding legal standard that has been the law for 25 years.
The core ruling in Hazelwood is that “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.” This is, both in concept and as applied in practice, a rather minimal hurdle for schools to surmount, and it has proven nearly impossible post-Hazelwood for a wronged student to successfully challenge school censorship.
As Ed Week reports, Justice White wanted to make the ruling even worse. His initial draft said administrators could censor student speech so long as the decision was not “wholly arbitrary.” But Justice John Paul Stevens — regarded as a centrist swing vote — pushed back against that wording. He wrote back suggesting an alternative — that censorship would be legal so long as the decision was not “wholly unrelated to pedagogical concerns” — that became the law.
That change may be what preserved Justice White’s slender 5-3 majority; had the Court deadlocked 4-4, the Eighth Circuit’s opinion in favor of the students would have been affirmed. (The Court was short one member that term due to a retirement.)
One more noteworthy tidbit emerges from Walsh’s review of the justices’ memos and notes.
Justice Brennan, the First Amendment champion whose cautionary dissent has proven so prophetic 25 years later, saved a prodigious amount of correspondence from ordinary citizens commenting on his opinions. In one, an Alabama yearbook adviser thanked Justice Brennan for his Hazelwood dissent — adding that, based on his experience with “incompetent, melon-headed administrators (who) hold authority over public schools,” he feared for the worst.