Legal guide to Hazelwood and viewpoint suppression

A Colorado high school student newspaper wanted to publish two editorials — one in favor of a proposed administration plan to make study halls mandatory for underclassmen and one against the plan. But when the principal reviewed the paper, he decided to censor the editorial opposing the study hall plan while leaving the one that supported the administration’s proposal intact.[1]

The actions of the principal in this example represent viewpoint discrimination, which is the practice of censoring one point of view on a subject while allowing others. Most courts have said that viewpoint discrimination violates the First Amendment when it is engaged by government officials — even in the context of a “nonpublic forum” where First Amendment protection is most limited. Generally, the government may not open a forum to permit discussion of a subject and then prohibit people from speaking on that subject just because the government disagrees with their point of view. For example, if a school board holds a meeting to discuss a plan to make the school year longer and allows citizens in favor of the plan to speak at the meeting, then the board must also let those opposed to the plan speak. This is true even if the school board could have prevented the plan from being discussed at all.

However, a June 2002 decision by the U.S. Court of Appeals for the Tenth Circuit casts doubt on whether school officials, who permit students to express one view on an issue in school-sponsored student media, must also let students express an opposing view. Under the ruling, a principal’s censorship of one viewpoint, but not another, would not necessarily violate the First Amendment because, the Tenth Circuit said, the Supreme Court’s 1988 ruling in Hazelwood v. Kuhlmeier permits school officials to censor school-sponsored expression in nonpublic forums based on viewpoint.

The Tenth Circuit’s ruling in Fleming v. Jefferson County School District stems from a challenge by parents of one of the victims of the 1999 Columbine High School shooting to restrictions school officials placed on a tile painting and installation project that was part of the reconstruction of the school.[2] The parents had written the date of the shooting and the words “Jesus Wept” on a decorative tile that they wanted to include in the school’s project. But school officials rejected the tile because it violated guidelines requiring the tile designs to be free of references to the shooting and religious designs and symbols. The parents said the restrictions violated their First Amendment right to freedom of speech because they censored their views. The Tenth Circuit upheld the school’s decision, saying that educators may make decisions that require judgments based on viewpoint.

As a result, the Tenth Circuit’s decision has added uncertainty to the question of whether school officials may allow one position on an issue to be heard while silencing the opposing perspective. The Supreme Court held in Hazelwood that secondary school officials could censor school-sponsored publications that had not been opened as public forums if they had reasons related to legitimate educational concerns. But the Court majority did not explicitly say whether school officials also had to be viewpoint-neutral in choosing what they censored.[3] In January, the Court refused to review the Tenth Circuit’s decision in Fleming.[4]

This lack of guidance has resulted in a split in the federal courts of appeal over whether school officials’ censorship in nonpublic forums must be viewpoint-neutral, with the U.S. Courts of Appeal for the First,[5] Third[6] and Tenth[7] Circuits saying censorship of certain viewpoints could be permissible and the Sixth,[8] Ninth[9] and Eleventh[10] Circuits saying it is not. The remaining federal courts of appeal have not yet ruled on the issue.

This distinction could be crucial to the many high school publications that have not been opened up as public forums and thus operate under the constraints of the Supreme Court’s Hazelwood decision. Student publications that by school policy or practice have operated as public forums — where student editors make the content decisions — still have much stronger legal protection. The same goes for those in states with free-expression laws or regulations: Arkansas, California, Colorado, Iowa, Kansas, Massachusetts, Pennsylvania and Washington state.

In Hazelwood, the Supreme Court ruled that a high school principal did not violate the First Amendment when he censored articles about teen pregnancy and divorce in a nonpublic-forum student newspaper because his actions were related to legitimate educational concerns. But the principal never said that he disagreed with the opinions expressed in the articles; in fact, the school district conceded that the principal’s control over the newspaper had to be viewpoint-neutral to be constitutionally permissible.[11] Although this concession could be seen as an explanation for the Supreme Court’s failure to address the requirement of viewpoint neutrality in Hazelwood, the Tenth Circuit chose to construe the Court’s silence as support for the view that Hazelwood allows school officials to restrict content based on viewpoint. The Tenth Circuit said this view was bolstered by the deference the Hazelwood Court accorded decisions made by educators and the reasons the Court gave for supporting greater control over school-sponsored speech, such as the need for school officials to determine “the appropriateness of the message, the sensitivity of the issue, and with which messages a school chooses to associate itself.”[12] The Tenth Circuit said school officials should be able to “promote student speech advocating against drug use, without being obligated to sponsor speech with the opposing viewpoint.”[13]

The Eleventh Circuit, on the other hand, has held that the Supreme Court’s silence in Hazelwood should be interpreted as requiring neutrality because “there is no indication that the Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker’s views.”[14] Instead, the court said, the Supreme Court merely applied the standard it laid out in Cornelius v. NAACP Legal Defense Fund for the kinds of restrictions the government may place on expression in nonpublic forums. In Cornelius, the Court held that officials can control access to a nonpublic forum based on subject matter and speaker identity as long as the distinctions drawn are reasonable and viewpoint-neutral.[15] This reasoning was echoed by the Ninth Circuit, which also relied on Cornelius to support its holding that Hazelwood requires school officials’ censorship to be viewpoint-neutral.[16]

Although the Supreme Court did not expressly apply the Cornelius censorship standard for nonpublic forums to the principal’s censorship in Hazelwood, the Court did say that school officials’ restrictions on school-sponsored speech must be “reasonable.”[17] The Court cited its decision in Perry Education Association v. Perry Local Educators’ Association, which held, like Cornelius, that the state may restrict access to a nonpublic forum “as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”[18] The Court’s reliance on Perry has been considered support for the view that Hazelwood requires viewpoint neutrality, as has Justice Brennan’s dissent in that case. He says that the Court has “never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government may entirely exclude discussion of the subject from the forum.”[19]

The courts of appeal that have found no requirement of viewpoint neutrality in Hazelwood have either not discussed the Hazelwood Court’s citation to Perry or, in the case of the First Circuit, said Hazelwood does not require viewpoint neutrality despite the majority opinion’s citation to Perry.

By reducing the constitutional constraints on school officials’ power to restrict school-sponsored speech, the Tenth Circuit has made it more difficult for student journalists to challenge administrators’ censorship of nonpublic-forum student publications. In addition to declaring certain subjects off-limits in nonpublic-forum school-sponsored media, school officials in New Mexico, Oklahoma, Utah and Wyoming[20] — and perhaps their counterparts in the First and Third Circuit states — could now censor the publication of opinions with which they disagree. Thus, as long as a principal can state a legitimate educational reason for his or her actions, he or she could prohibit the student newspaper from publishing an editorial against a proposed school dress code while permitting it to run one supporting it. Or the principal could allow the paper to publish an editorial in favor of one school board candidate but not another. The principal could even censor articles in the newspaper critical of the school administration, permitting only the publication of “good news.” Of course, it would be extremely difficult for school officials to come up with a reasonable educational justification for censoring many of these examples, and the fact that they are engaging in viewpoint discrimination could make it even harder.

In his dissent in Hazelwood, Justice Brennan warned that the Court’s opinion would allow school officials to “camouflage viewpoint discrimination as the ‘mere’ protection of students from sensitive topics.”[21] By eliminating the requirement that restrictions on school-sponsored speech be viewpoint-neutral, courts could be extending the reach of Hazelwood to permit school officials to engage in censorship without even the pretense of neutrality and handing school officials an unprecedented amount of control over the opinions students are allowed to hear and express. Undoubtedly, more courts will confront this issue. But until the Supreme Court settles the matter, the obligation of school officials to remain viewpoint neutral will be a matter of debate.

1 Principal censors ‘derogatory’ editorial cartoon, Student Press Law Center Report, Fall 1988, at 22.
2 Fleming v. Jefferson County Sch. Dist., 298 F.3d 918 (10th Cir. 2002), cert. denied, 123 S. Ct. 893 (2003).
3 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). However, the school district conceded that the principal’s control over the student newspaper had to be viewpoint-neutral to be constitutionally permissible. Id. at 287 (Brennan, J., dissenting) (citing Brief for Petitioners at 32).
4 Fleming v. Jefferson County Sch. Dist., 123 S. Ct. 893 (2003).
5 Ward v. Hickey, 996 F.2d 448, 454 (1st Cir. 1993).
6 C.H.ex rel Z.H. v. Oliva, 195 F.3d 167, 172-73 (3rd Cir. 1999).
7 Fleming, 298 F.3d at 928.
8 Kincaid v. Gibson, 191 F.3d 719, 727 (6th Cir. 1999). A three-judge panel of the Sixth Circuit noted that Hazelwood permits only reasonable, non-viewpoint-based restrictions on student speech, but this decision was later vacated on other grounds. Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001) (en banc) (rejecting the application of Hazelwood to the college student media).
9 Planned Parenthood v. Clark County Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (en banc).
10 Searcey v. Harris, 888 F.2d 1314, 1319 (11th Cir. 1989).
11 Hazelwood, 484 U.S. at 287 (Brennan, J., dissenting) (citing Brief for Petitioners at 32).
12 Fleming, 298 F.3d at 928.
13 Id. at 928, 934.
14 Searcey, 888 F.2d at 1319 n.7.
15 Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 811 (1985)
16 Planned Parenthood, 941 F.2d at 829.
17 Hazelwood, 484 U.S. at 270.
18 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983).
19 Searcey, 888 F.2d at 1324 (quoting Perry, 460 U.S. at 62 (Brennan, J., dissenting)).
20 Colorado and Kansas are also in the Tenth Circuit. However, as discussed earlier, both states have so-called “anti-Hazelwood” laws that would limit nearly all forms of viewpoint-based censorship.
21 Hazelwood, 484 U.S. at 288 (Brennan, J., dissenting).