"We need not now decide whether the same degree of deference [to censorship by school officials] is appropriate with respect to school-sponsored expressive activities at the college and university level." - Hazelwood School District v. Kuhlmeier (1988)

"Hazelwood provides our starting point" - Hosty v. Carter (2005)

For about ten years now, we've had a bit of a Chicken Little Complex at the Student Press Law Center. Worried - but not wanting to push the panic button too hard. Mindful of the criticism we heard from those charging that we were overreacting.

Well, it turns out that Chicken Little was right: on June 20 the sky did, in fact, fall for some college student media. On that date, 11 judges sitting on the federal Seventh Circuit Court of Appeals did what none of us in the student media community obviously hoped - and I think most of us never really thought - they would do: they potentially gave college administrators in three states the same devastating censorship key handed to their high school counterparts 17 years earlier.

How did we ever reach this point? More importantly, what's next?

Hazelwood

In 1988, in a 5-3 decision, the U.S. Supreme Court ruled in Hazelwood School District v. Kuhlmeier that public high school officials had significant authority to censor most (not all) student newspapers and other forms of student expression sponsored by the school. While the censorship power of high school administrators under Hazelwood was not unlimited, the decision created expansive new categories of "unprotected" speech, shocking in their vagueness and breadth. Instead of just "libel" or "obscenity," for example, high school officials, the Court said, could now censor speech if a principal deemed it "poorly written," "ungrammatical," "biased" or "inconsistent with the shared values of a civilized social order."

Read those categories again. The Hazelwood Court didn't merely adjust the First Amendment balance between administrative authority and student free speech rights, it pretty much tossed out the scale.

If there was any good news in the Hazelwood decision, it was only that the decision could have been even worse. For one thing, the Court gave college students a temporary pass. It declined to say that a public college president, for example, should have the same authority as a high school principal to censor a student's "poorly written" or "biased" editorial. The Court in 1988 said that was a question for another day.

Kincaid

That day didn't come for almost eight years. Our first official warning went out in November 1995 after students at Kentucky State University filed a lawsuit against university officials who had seized their student yearbook after it came back from the printer. Among the yearbook's alleged offenses, according to school administrators: its cover was purple instead of yellow and green, KSU's official colors.

As ludicrous as the reasons for the censorship were, the fact remained that state officials at a public university had locked some 2,000 copies of an otherwise completely lawful college student yearbook away in a closet and had refused to back down. More importantly, the university claimed Hazelwood gave them the authority to do so.

Despite some scary early rulings from both the federal district court and a 3-judge appellate panel, a full panel of judges of the U.S. Sixth Circuit Court of Appeals recognized the importance of free speech on a college campus and, in January 2001, issued a strong decision rejecting KSU's attempt to bring Hazelwood to public university student newsrooms.

Hosty

Despite the ruling in Kincaid, later that year Illinois' Attorney General decided to take another shot - with another court - at bringing Hazelwood to America's college and university campuses. Student newspaper editors at Governor's State University sued school officials for halting publication of their student newspaper absent administrative prior review and approval of future issues. The state's chief lawyer argued such action was just fine, citing Hazelwood. This time, the students won at both the district court and before a three-judge panel of the U.S. Seventh Circuit Court Appeals. But on June 20, seven appellate judges bought into the Illinois AG's argument and reversed the lower court rulings, officially opening the college door to Hazelwood. Four judges strongly dissented. In weighing the rights of college students, the court majority wrote, "Hazelwood provides our starting point."

I'm sure Abe Lincoln would be proud.

For proponents of a free press, the decision is hard to sugarcoat. It changes things. For college journalists in the three states covered by the Seventh Circuit - Illinois, Indiana and Wisconsin - the answer to the question "Can they censor?" is no longer always a clear and easy call. Most of the time - at least for now - the answer will still be "no." If school officials have recognized their student media - either by policy or practice - as "designated public forums" (yes, it gets complicated) and allow student editors to determine their own editorial content, Hazelwood's lesser standards still won't apply. The Seventh Circuit made clear that in a designated public forum student newspaper, "no censorship [is] allowed."

Currently, almost every public college student newspaper in the country operates like a public forum because up until now it seemed clear that is what the law required. But for students in the Seventh Circuit, Hosty means that college officials may now have a choice. "Public forum" status is not automatic. And as hundreds of examples at the high school level have shown over the past several years, where a student publication is sponsored by the school, administrators can - if they do so carefully - take steps that make it unlikely a court would recognize the publication as a designated public forum.

Let there be no doubt: giving college officials such a "choice" puts student newspapers - and every other university-sponsored expressive activity - at risk. Thanks to the Seventh Circuit, the new reality may be that truly free school-sponsored speech will exist on public college campuses only so long as administrators on that campus want it to exist.

The First Amendment for the New Millennium: Congress shall make no law - unless it wants to.

Civics Education 2005

"Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from one to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees." - Justice Brennan's dissent, Hazelwood v. Kuhlmeier (1988)

The effects of Hazelwood on our public secondary schools have been predictable. The government officials running our high schools did exactly what the Founding Fathers knew government officials would always do absent a clear limit on their ability to control speech: they exercised such control. Administrative censorship of high school student media since 1988 has skyrocketed. Calls for legal help to the Student Press Law Center are up more than four-fold. Newspapers at many high schools have taken on the look and feel of the school district's public relations office. Others have simply folded up shop.

More troubling than any of that, however, is that students started to graduate from high school without the foggiest notion of a living First Amendment and why it is relevant and vital to how things are supposed to work in our country. The high school years are often our newest citizens' first introduction to the idea of what it means to be a participant in the United States. For many, it will be their only formal civics education before we call upon them to start taking an active role in the process of self-government. Certainly, for way too many of the students that called our office for help over the past 17 years - and for the countless others who never even bothered - this introduction to American civics has been sorry indeed.

"I'm sorry," I would often be forced to explain, "but I'm afraid the First Amendment isn't going to be of much help."

It made no difference whether they were calling about an editorial in favor of school prayer or a column defending same-sex marriages. They had, sometimes for the first time in their lives, chosen to publicly take a stand and to have their voice heard. To exercise a basic right they had been told - and they believed - belonged to all Americans.

It hurt - each and every time - to hear that bubble burst at the end of the phone line.

I sincerely hope those students will give the First Amendment another shot. Perhaps, at some point in the future, they will see how a free press really can work and how it truly is worth standing up for and defending. The way things are going, we're going to need every one of them.

The Road Ahead

I have a quote that hangs in my office from Horace Mann, frequently referred to as the "Father of American Education." Back in 1845 he wrote:

"The great moral attribute of self-government cannot be born and matured in a day; and if school children are not trained to it, we only prepare ourselves for disappointment if we expect it from grown men... As the fitting apprenticeship for despotism consists in being trained to despotism, so the fitting apprenticeship for self-government consists in being trained to self-government."

Well, thanks in part to nearly two decades of Hazelwood, I can attest that the training of our high school students - and the disappointment - appears nearly complete.

College advisers routinely tell me that many of the students entering their newsrooms simply don't understand the press's role. About questioning authority. About seeking and covering the news, no matter how controversial the topic. About confirming the authenticity of statements made in a university press release prior to publication. Or instinctively challenging administrative attempts to dictate what they print. This, it was clear to their college advisers, simply wasn't done - or even discussed - in high school. They were Hazelwood-ized.

The recent national survey by the Knight Foundation - which, among other disturbing results, revealed that more than a third of all high school students believe the First Amendment "goes too far" in guaranteeing freedom of speech and freedom of the press - certainly conforms to the findings of the college advisers I spoke with.

Apparently not bothered by such results, however, the Illinois Attorney General and the federal judges of the Seventh Circuit Court of Appeals have now chosen to take Hazelwood - and its First Amendment Lite brand of civics education - to college. There is no telling whether the U.S. Supreme Court, who gave us the decision in the first place, will see fit to step in now and limit - or embrace - its extension to the university setting.

"It is a sad day for journalism in the United States," Society of Professional Journalists President Irwin Gratz said, "...students [affected by Hosty] will now spend eight years with prior review and censorship as part of their journalistic experience."

It's a sad day for much more than journalism.

One must ask: How do we go from thinking of American college and university campuses as the "quintessential marketplace of ideas," as courts referred to them not so long ago, to places where state officials may now be permitted to censor student speech when they determine it is "inconsistent with the shared values of a civilized social order?"

It is a question whose answer, I think Horace Mann would agree, says much about the direction we, as a country, are headed.

Mike Hiestand is an attorney, based in the far, upper left corner of the "Lower 48," and works as a legal consultant to the Student Press Law Center.