WASHINGTON, D.C. — In a forum discussing free speech on school campuses, two First Amendment advocates agreed on most, but their views diverged on the use of the 1988 Supreme Court decision in Hazelwood School District v. Kuhlmeier to regulate high school newspapers.
George Washington University Law School’s Federalist Society for Law and Public Policy invited Baylor University President Ken Starr and Adam Goldstein, attorney advocate of the Student Press Law Center, to debate the importance of upholding free speech on campus on Monday. Both speakers emphasized how the First Amendment is key to maintaining individual liberty — and academic freedom is foundational to the values of higher education.
But while Starr, a former D.C. Circuit federal judge and U.S. solicitor general, felt strongly about not restricting free speech on college campuses, he insisted restrictions are necessary in high school publications when speech may disrupt the school’s educational function, which is the Hazelwood standard.
The ruling in Hazelwood gave high school officials the right to censor school newspapers that are not public forums, as long as they can provide a “reasonable educational justification” and the censorship is viewpoint neutral.
Starr echoed the legacy of Supreme Court Justice William Brennan, who throughout his judicial career fought to strengthen and uphold the First Amendment — even in controversial situations, such as flag burning in Texas v. Johnson.
However, Starr argued that the full extent of First Amendment protection should be granted to students the day they graduate high school. Although the baseline is freedom, he said, K-12 students are in a “very different custodial setting” in public schools, where contrasting rules apply.
Starr: “A university is a conversation.” Encourage people to be civically minded. #splc @SPLC
— Ryan Tarinelli (@ryantarinelli) February 8, 2016
After being appointed to the Supreme Court in 1956, Brennan looked at any threat to free speech with strict scrutiny. In his dissent in Hazelwood, Brennan expressed his disdain for the Court allowing schools to evade the duty of preparing students to exercise the very constitutional rights they learn about in class.
“Instead of ‘teach[ing] children to respect the diversity of ideas that is fundamental to the American system’ and ‘that our Constitution is a living reality, not parchment preserved under glass,’” Brennan wrote in his dissenting opinion, “the Court today ‘teach[es] youth to discount important principles of our government as mere platitudes.’”
Starr said it is important for educators to place a heavier weight on civic education, and to teach students about the full extent of First Amendment and the rights given to them once they are “free of the shackles” being imposed on them by school administrators.
He said schools should start teaching students about why their rights are dialed back in the “unusually sensitive setting of public education.”
Goldstein argued that censoring high school students creates a mindset that the First Amendment is something that can be suspended when it becomes inconvenient for someone.
“Who are the two groups of people the Supreme Court doesn’t think are entitled to the full benefit of the First Amendment?” Goldstein said. “Felons and students. And the felons are winning.”
He said many students come to college and believe they can restrict others’ First Amendment rights — such as requiring “safe spaces,” free speech zones and trigger warnings on campus — because they grew up being told to restrict themselves so as not to offend anyone else in school.
Starr: As of now, the court does not restrict speech that hurts feelings. @FedSoc @StevetheSkunk #FederalistSociety pic.twitter.com/Vi2eRoLo52
— Ryan Tarinelli (@ryantarinelli) February 8, 2016
“[Students] were told what the words meant, but they were given no opportunity to actually experience it themselves,” Goldstein said. “I think it is very difficult to correct that problem by the time you get to college.”
Still, Starr argued increased efforts in First Amendment education throughout high school will help. But Goldstein said unless the students are allowed to exercise their First Amendment rights in school, the words won’t have enough weight.
“[Students] are being told they aren’t allowed to write their actual thoughts on any topic the school may subjectively decide is controversial,” Goldstein said. “So by the time [students] are 18, you have people who can register for Selective Service but don’t actually have First Amendment rights in school.”