8 ways a landmark Supreme Court ruling has changed student journalism

Devastation.

According to Student Press Law Center Executive Director Frank LoMonte, the impact of the Hazelwood ruling on student journalism in this country has been nothing short of sheer devastation. In a recent column, University of Wisconsin-Madison student journalist Pam Selman similarly referred to Hazelwood as an “infectious disease … quietly spreading across the country, harming students at college campuses and high schools alike.” For his part, law professor Richard Peltz-Steele has described it as a long-term “censorship tsunami.”

The storm formed in the early 1980s, when the principal of East Hazelwood High School in St. Louis, Mo., objected to a pair of stories produced by journalism students for The Spectrum school newspaper. The principal deemed the stories — on teen pregnancy and a classmate coping with her parents’ divorce — editorially unsound and unfit for an adolescent audience. Prior to the paper’s publication, he pulled the pages containing the pieces. In response, the Spectrum’s student editor and two reporters sued.

Roughly five years later, the Supreme Court ruled in the school’s favor. The landmark January 1988 decision in Hazelwood v. Kuhlmeier was a giant step back for student press and speech rights. Unlike an earlier Supreme Court ruling that established the so-called Tinker Standard, the Hazelwood decision declared students do shed some of their Constitutional rights at the schoolhouse gate.

Currently, close to 30 years after the Spectrum first filed its controversial stories and 25 years after the Supreme Court ruled on the case, Hazelwood’s reach has expanded far beyond journalism, secondary schools, school-sponsored speech, and print publications.

In a recent interview timed to coincide with the milestone anniversaries, LoMonte provided eight basic truths about Hazelwood’s continued visible and invisible impact and how the ruling can be neutralized.

Truth #1: Hazelwood is a presence at the college level.

“When Hazelwood was first decided back in 1988 there was this long period where everybody in the legal and journalism community proceeded under the assumption that it was a case about children,” said LoMonte. “That was a safe assumption for a while, but it’s proving not to be any longer. The federal courts increasingly are looking to Hazelwood as providing the governing First Amendment legal standard for anyone at all who is a student, no matter how old, no matter how mature, no matter the level of education.”

For example, in 2011, a federal district court cited Hazelwood to support a decision by Auburn University at Montgomery to remove a 51-year-old graduate student from its nursing program. The student argued she had been unlawfully expelled for speaking out about perceived problems with the program’s disciplinary policies.

Truth #2: The Hazelwood ruling lays out a long, vague, subjective list of justifications for school censorship.

Administrators are increasingly empowered to ban or remove student press content they personally judge to be biased, poorly written, poorly researched or expressing an opinion on a hot-button issue.

The truthfulness or public service potential of a story are not mitigating factors. One example: a 2009 student newspaper report about drug use at Chicago’s Stevenson High School which featured an anonymous student discussing the ease of obtaining drugs on campus.

In response, LoMonte said, “The administration fabricated a fictitious ‘no anonymous sources’ rule to justify banning the story. Of course, high school newspapers not only routinely use anonymous sources, but routinely are ordered to do so by administrators under the rationale of protecting the reputations of vulnerable kids. But Stevenson was able to hide behind the fig leaf of ‘bad journalism’ to conceal what was transparently its true motivation: protecting the carefully crafted PR image of the school.”

Bottom-line, according to LoMonte, “If the administration can stop you from publishing because, in their subjective judgment, a piece is inadequately researched, biased or it takes a stand on a controversial political issue, then you’re talking about dumbing down journalism to Dick and Jane level. You’re talking about student journalism that’s going to have to meet Sesame Street standards.”

Truth #3: In a Hazelwood dispute, students or student media have an incredibly hard time claiming victory.

“If your speech is governed by the Hazelwood standard, then it is almost invariably true that in a dispute the school will win and you will lose,” said LoMonte. “Once a court decides that Hazelwood is the right legal standard, then a student is going to have to have an absolutely flawless case against a very foolish and stubborn school in order to prevail.”

This stubborn reality is producing the scariest outcome of all: a can’t-win mentality.

Truth #4: Many students no longer fight speech and press censorship.

LoMonte stated “there is no question” high school and college students — and their teachers, professors, and advisers — more actively combatted censorship prior to Hazelwood. He points to archived issues of the Student Press Law Center Report as one form of printed proof. Almost every pre-Hazelwood issue of the thrice-yearly magazine published in the 1970s and 1980s contains a summary of a legal battle against school censorship initiated by students.

“All of that changed after Hazelwood, and the spigot of litigation has almost entirely closed,” he said. According to LoMonte, it has been nearly five years since students in the U.S. filed a lawsuitagainst school censorship.

Frank LoMonte

“There’s a real sense — as I talk to students around the country — that they won’t even try to push boundaries anymore because they’re very busy,” he said. “They have two part-time jobs, six extracurricular activities, and three volunteer commitments. The last thing they need is to spend two weeks working on a story that never gets published.”

LoMonte described the mindset as akin to “You can’t fight City Hall.” As he explained, “There is a real sense that the balance of power has shifted so completely in favor of school administrators that a vindictive administrator can get away with anything — even ruining a teacher’s career or ruining a kid’s shot at college — and that the law will not step in and correct the wrong.”

Truth #5: Students are entering college timid and unaware of the power of journalism and free expression.

“What I’m hearing at the college level is that students are arriving in a damaged state,” LoMonte said. “They have been trained to believe that publishing material that upsets people is a bad thing. They have been trained if you ask too many tough and embarrassing questions of your institution that your story can be killed and you might personally be punished.”

During a symposium on Hazelwood’s legacy last fall, David Cuillier, director of the School of Journalism at the University of Arizona, said in the shadow of the ruling, “We are raising a generation of sheep.”

LoMonte agreed. “We’re fooling ourselves if we think the habits that are being taught in K through 12 are not going to carry over into college and into the profession,” he said.

Truth #6: The next avenue of expression with the potential to fall under Hazelwood’s scope is online.

“That’s our greatest fear,” LoMonte admitted. He cited the prominent 2012 case Tatro v. University of Minnesota, which involved a graduate student in UM’s mortuary science program punished by school officials after she published Facebook posts deemed threatening and inappropriate.

“We saw the University of Minnesota actually argue before the state Supreme Court that a college student’s speech on a Facebook page is entitled to only the Hazelwood level of protection if the speech somehow relates to school programs or if it is punished through academic channels,” he said.

“Although that was a pretty outlandish argument and the Court thankfully didn’t buy it, the fact that you have experienced college lawyers trying to stretch Hazelwood that far is indicative of the ambitions of at least some college administrators to completely control everything their students say about the school.”

Truth #7: Don’t expect the courts — Supreme or otherwise — to help mitigate or overturn Hazelwood.

“Honestly, I think what we’re seeing is the courts don’t want to get into the business of second-guessing schools and colleges because they think that refereeing these disputes is beneath them,” said LoMonte. “They think a dispute over flunking a class is too penny-ante for the federal courts to expend their time.”

From LoMonte’s perspective, this avoidance mentality comes at the victims’ expense. “It’s really misguided because the court is always supposed to be the place where an injured person who has nowhere else to turn can get relief,” he said. “If the courts are going to start telling students that their disputes are too insignificant for the judicial system then students are going to be left to the mercies of their schools.”

Truth #8: There are a few ways to fight back.

For inspiration, LoMonte points to school policies and state legislatures that have reversed Hazelwood or “guarantee students more than the Hazelwood minimum level of freedom.”

One example: the Illinois College Campus Press Act. The statute was cited successfully last year in a district court decision forcing Chicago State University to rehire a campus newspaper adviser who had been fired in clear retaliation for what students had published.

Ultimately, turning the Hazelwood tide requires much greater public awareness.

“That means anyone who feels that they’ve been censored needs to put it on the record,” said LoMonte.

“It’s disheartening to see anyone censored, but it’s doubly disheartening when people are so frightened and intimidated that they won’t even speak up about it. You’re never going to change public policy until the decision-makers perceive there is a widespread problem.”

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