Free Speech and School Governance in the Wake of Hazelwood

Authors

Rosemary C. Salomone, St. John's University School of LawFollow

Document Type

Article

Publication Title

Georgia Law Review

Publication Date

Winter 1992

Volume

26(2)

First Page

253

Abstract

(Excerpt)

The Supreme Court's 1988 decision in Hazelwood School District v. KuhImeier upholding public school officials' authority to censor material in a high school student newspaper sent immediate shock waves throughout the educational and legal communities. The Court's sweeping language in Hazelwood moved far beyond the narrow issue of school newspaper censorship. It even moved beyond the question of appropriate or acceptable speech in public secondary schools. It was clear that Hazelwood could have far-reaching consequences for student rights, school governance, and the scope of official authority to make curricular decisions that reflect the values of the local community.

Some school officials hailed the decision as a long-awaited signal to exercise greater control over the school environment. For them, the Court had given the go-ahead to pull in the reins on a student-centered system that had seemingly run riot. Others feared the negative consequences of Hazelwood, that it would create community pressure on students to censor their expression and that it would disturb the school environment and ultimately lead to controversy and potential litigation. Student rights advocates, in particular, viewed the Court's apparent retreat from prior case law as sounding the death knell for students' free speech rights.

The latter view represents both the immediate visceral response to Hazelwood and the more sustained public and professional perception of the decision. Nevertheless, from the legal perspective, the significance of a Supreme Court decision is not clearly determinable at the outset but rather develops over time. What is the holding of a case and what is mere dicta sometimes take years of lower court decisions to sort out. From the implementation perspective, the extent to which the decision influences public policy or practice depends on whether, over time, other interpreting and enforcing populations reaffirm the norms established by the Court. The more the Court appears in step with the dominant values of those populations, the more likely the decision will be reinforced at the state and local levels and vice versa. Widespread noncompliance with the Court's school prayer decisions well into the 1980s is a clear example supporting that proposition.

This Article examines the impact of Hazelwood four years after the decision was handed down. Has the decision been merely symbolic or has it had a significant effect on educational policy and practice nationwide? Has it demonstrably changed what students can actually say, read or publish in public secondary schools? Drawing on the methodology of impact theory as developed during the 1960s and 1970s, the Article examines the response to Hazelwood of lower federal and state courts, of state legislatures, and of local educational officials. The discussion is placed within the context of the Supreme Court's shift from a rights-based to a values-based ideology of schooling and of the inherent tension between students' constitutional rights to freedom of expression, on the one hand, and the authority of local school officials to make curricular decisions that reflect the preferences and values of the community majority.