Hazelwood is the training-wheels version of free speech. It’s past time the Court revisited it.

For nearly four decades, students in America’s public schools have experienced a straightjacketed version of the First Amendment.

That’s due to the Supreme Court’s Hazelwood v. Kuhlmeier decision. School administrators — who are government officials — have used Hazelwood to censor student expression, often prioritizing the school’s reputation over student voices. 

These administrators mark certain stories and topics as off-limits, including critiques of school boards or commentary on federal immigration policy. It should come as no surprise then that the nation’s largest journalism teaching organization has condemned Hazelwood. Still, schools argue that they should be able to dissociate from student speech to maintain its reputation. With that in the foreground, Justice Samuel Alito’s recent dissent calling the Court to reconsider Hazelwood should be echoed, not dismissed.

In Hazelwood, the Supreme Court set a low bar for school administrators to censor school-sponsored publications and activities that the public might reasonably perceive to bear the imprimatur of the school. To quash such expression, a school must only show the censorship is reasonably related to legitimate educational concerns — which touches essentially every aspect of student life at school. Schools have pointed to the sole justification of “avoiding controversy” to meet that bar. 

To characterize Hazelwood as a protector of diversity at schools, as New Jersey Public Education Coalition founder Michael Gottesman recently did, is to allow the school’s reputation to supplant student expression. Schools are not made more diverse when officials demand student speech be non-controversial. Instead, they become chilling enclaves where students shed their rights as citizens in favor of government officials’ subjective concerns for the school’s image. 

License to censor 

“Maintaining neutrality” is the sheep skin the censorial wolf wears, and it affects expression on all sides of the political spectrum. Take for instance the case that sparked Alito’s dissent, in which the student leader of a pro-life club sought to hang flyers advertising the club’s meetings that the school rejected because they included images of members holding “Defund Planned Parenthood” signs. The justification the school offered — appearing neutral on a politically ripe issue — was the same rationale Nebraska officials used after pulling a student journalist’s editorial cartoon critical of ICE’s actions in Minneapolis. Reconsidering Hazelwood could end this cycle of censorship.

The chill is spreading 

That cycle reaches beyond K-12 institutions. Postsecondary students have had to surrender their expressive rights to administrators’ discretion under decisions that expanded Hazelwood to reach college student media. Look no further than the University of Alabama, where administrators shut down two student-run magazines that focused on women and black students. In May, a federal district court held these magazines fit within the Hazelwood standard, and then went on to characterize them as government speech that the university could cast aside at its whim. 

Alito specifically called on the Court to revisit Hazelwood in light of the “government speech” doctrine, which had not yet been recognized when Hazelwood was handed down. As Alito’s dissent notes, the distinction between private speech and government speech is paramount, as First Amendment protections extend to the former and not the latter. The time to clear this muck did not come soon enough for the University of Alabama student journalists who lost their magazines. But the Court could offer clarification before it spreads. 

Take off the training wheels 

Hazelwood forces students into a training-wheels version of free speech. It has been so discredited that 18 states have enacted “anti-Hazelwood” statutes specifically to nullify its effect. The idea that the government’s “right” to a controversy-free reputation overrides the right to engage in core political speech the Constitution most fiercely protects runs counter to that founding document itself. Under the guise of maintaining neutrality, schools interpret Hazelwood to grant them nearly boundless authority to turn their hallways into the placid Seahaven of The Truman Show that ignores the outside world. 

The reality is that students also live in the outside world. Yet their cartoons, club posters, and editorials must ignore controversy should a school administrator decide to elevate the government’s reputation over student voices. We are in the middle of a self-fulfilling cycle in which the government demands institutional approval for speech, then censors speech to avoid any risk of attribution the school itself invited. 

The stakes are high — not just for student journalists, but for all students. Students learn democracy best by exercising it. But unless Hazelwood is revisited, students may learn a different lesson: the government’s reputation matters more than their expression.