20JLEduc253 In the Wake of Fraser and Hazelwood ANN M. GILL

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In the Wake of Fraser and HazelwoodANN M. GILL*

No two first amendment cases handed down by the United StatesSupreme Court during the 1980s received more attention than the pair in-volving free speech rights of public high school students-Bethel SchoolDistrictNo. 403 v. Fraser'and Hazelwood SchoolDistrict v. Kuhlmeier.2The commentary on these cases in legal journals was, by and large,negative. Among the expressed fears were that the cases signalled a retreatfrom the broad free speech rights granted students by Tinker v. DesMoines IndependentSchool District3 and that the holdings were so vaguethat state and lower federal courts would extend the precedents beyondtheir facts. Although some of the fears have not materialized, many werewell-founded, as both Fraserand Hazelwood have been used to limitrights of free speech well beyond the high school classroom. In this essay, Ireview the cases themselves, the response by legal commentators, and thecourt decisions in the wake of Fraserand Hazelwood.

REVIEW OF THE CASESTo understand Fraserand Hazelwood, a review of Tinker is helpful. A

group of students and adults in Des Moines, Iowa, decided to wear blackarmbands to publicize their objections to the war in Vietnam. After schoolofficials became aware of the plan, they adopted a policy that any studentwearing a black armband to school would be asked to remove it and wouldbe suspended if he or she refused. Three students suspended for refusal toremove their armbands brought action against school officials forviolating their first and fourteenth amendment rights. The Court upheldthe claim of the students, pointing out that first amendment rights clearlywere implicated because not all political symbols were prohibited, onlyblack armbands.

* B.A., Western State College, 1974; M.A., Colorado State University, 1976; J.D., University ofColorado, 1979; Ph.D., University of Denver, 1986. The author presently serves as Associate Pro-fessor and Chair of the Department of Speech Communication at Colorado State University.

1. 478 U.S. 675 (1986).2. 484 U.S. 260 (1988).3. 393 U.S. 503 (1969).

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254 Journal of Law &EducationIn perhaps the most often-quoted passage of the opinion, the Court an-

nounced that neither students nor teachers "shed their constitutionalrights to freedom of speech or expression at the schoolhouse gate," point-ing out this had been "the unmistakable holding of [the] Court for almost50 years." 4 The major test reiterated in the case for determining when ex-pression might be regulated was that of material or substantial disruption.The Court found no such interference with appropriate discipline inTinker. As the Court stated, "[uinder our Constitution, free speech is nota right that is given only to be so circumscribed that it exists in principlebut not in fact." 5

This precedent remained unchallenged until 1986. Fraser, the casewhich began the erosion of Tinker, involved a high school student whodelivered a nominating speech for a fellow student as a part of a voluntaryassembly held during school hours. The assembly was attended by six-hundred students, many of them fourteen years old. The speech involvedextended sexual allusions and double entendres:

I know a man who is firm-he's firm in his pants, he's firm in his shirt, hischaracter is firm-but most ... of all, his belief in you, the students of Bethel, isfirm.Jeff Kuhlman in a man who takes his point and pounds it in. If necessary, he'lltake an issue and nail it to the wall. He doesn't attack things in spurts-he driveshard, pushing and pushing until finally-he succeeds.Jeff is a man who will go to the very end-even the climax, for each and everyone of you.So vote for Jeff for A.S.B. vice-president-he'll never come between you andthe best our high school can be. 6

The student was charged with violation of a disciplinary rule of the school.As a result, he was suspended for three days, and his name was removedfrom the list of candidates for graduation speaker at commencementceremonies.The Supreme Court drew a distinction between this speech and theblack armband in Tinker. However, the Court did not rest its decision touphold the actions of school officials on the "material disruption" stan-dard set out in Tinker, despite citing evidence of disruption the speechcaused in the audience. Instead, the Court discussed in some detail the roleof the American public school system to " 'inculcate the habits and man-ners of civility as values in themselves conducive' " to happiness and self-government. 7 In order to fulfill their role of educating students in these

4. Tinker at 506.5. Id. at 513.6. 478 U.S. at 687 (Brennan, J., concurring).7. Id. at 681, quoting C. BEARD & M. BEARD, NE W BASIC HISTORY OF THE UNITED STATES 228

(1968).

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In the Wake of Fraserand Hazelwood 255

fundamental values and socially appropriate behavior, the Court deemedschool officials' prohibition of vulgar and offensive terms both permissi-ble and appropriate-"schools must teach by example the shared valuesof a civilized social order." 8 Such duty by the school officials was seen asa permissible limitation on the free-speech rights of students.

The Court drew a distinction between students and non-student adultsin limiting the first amendment rights of the former. The constitutionalrights of students in public schools were deemed "not automatically coex-tensive with the rights of adults in other settings." 9In 1988, the Court revisited the public high schools in the Hazelwoodcase. Three student staff members of Spectrum, a school newspaper whichwas a project of the journalism class at Hazelwood East High School,claimed violation of their first and fourteenth amendment rights when thehigh school principal deleted two pages of articles from an issue of thenewspaper. One of the articles detailed the experience of three Hazelwoodstudents with pregnancy; the other discussed the impact of divorce onstudents at the school.In upholding the actions of the school officials, the Court began byciting the language in Fraser that rights of students are not coextensivewith rights of adults. In that context, the court then determined that thestudent newspaper was not a public forum. Neither by practice nor policywas it open to indiscriminate use by the public. Instead, it was used as a"supervised learning experience."10 This, according to the Court,distinguished the case from Tinker, for the public might "reasonablyperceive" that opinions expressed in the newspaper bore "the imprimaturof the school." ' The Court suggests that school authorities have the rightnot only to inculcate values, citing Fraser,but to act as publisher of thepaper since the school is lending "its name and resources to the dissemina-tion of student expression." 12 In the role of publisher, school officials arepermitted to make editorial decisions about the paper, so long as they are"reasonably related to legitimate pedagogical concerns." 13 Absent such avalid educational purpose, the First Amendment is violated when schoolofficials censor speech.

The Court apparently is willing to give wide discretion to school of-ficials, as "education of the nation's youth is primarily the responsibilityof parents, teachers, and state and local school officials, and not of

8. d. at 683.9. d. at 682.10. Hazelwood, 84 U.S. at 267.11. d. at 271.12. Id. at 272-73.13 . Id. at 273.

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256 Journal of Law &Educationfederal judges." 14 In this case, the Court determined that the school prin-cipal had reasonable concerns about the articles in question-includingthe privacy of the divorced parents of students interviewed as well as thepregnant students, although none were named in the article.

LEGAL COMMENTARYThe bulk of the voluminous response to Fraserand Hazelwood in legal

journals is negative. In general, the decisions are seen as a threat tofreedom of speech, I5 and precedents that may chill exercise of protectedrights. 16 Most commentators see both Fraserand Hazelwood as a retreatfrom Tinker. 17 Among the impacts on Tinker are the new standards fo r

14. Hazelwood, 48 4 U.S. at 273.15 . Meyer, Assuring Freedom or the College Student PressafterHazelwood, 24 VAL. U.L. REv.

53, 54 (1989). See, also, Comment, The FirstAmendment Rights ofPublicSchool Students Are NotViolated When School Officials Impose ReasonableEditorialControl over the Content of School-Sponsored Publications,30 S. TEX. L. J. 193, 195 (1988); Comment, PublicSchool Students' FirstAmendment Right of ExpressionSubject to StandardofReasonableness:HazelwoodSchool Districtv. Kuhlmeier, 22 SUFFOLK U.L. REV. 851, 859 (1988); Comment, FirstAmendment Rights in PublicSchools: Bethel School Districtv. Fraser,12 OKLA. CITY U.L. REV. 907, 908 (1987); Note, The Schoolas Publisher:Hazelwood School Districtv. Kuhlmeier, 67 N.C.L. REv. 503, 516 (1989); Note, TheSupreme CourtFurtherRestricts StudentFirstAmendment Rights in PublicSchools: The Future of'Free Trade in Ideas" after HazelwoodSchool District v. Kuhlmeier, 20 Loy. U. Cm. L.J. 145, 163(1988); Note, Turning Back the School Clock: A Case Analysis of Hazelwood School District v.Kuhlmeier, 12 HAIMINE L. REv. 131, 150 (1988); Abrams and Goodman, End ofan Era?The DeclineofStudentPressRights in the Wake ofHazelwoodSchoolDistrictv. Kuhlmeier, 1988 DUKE L.J. 706,707; Note, A School DistrictMay Impose Sanctionsupon a Student in Response to His OffensivelyLewd and Indecent Speech Without Violating His Rights, and a School District Rule ProscribingObsceneLanguage andAdmonitions of TeachersAre Adequate WarningsPursuant o Students' DueProcessRights - Bethel School District v. Fraser,36 DRAKE L. REV. 643, 64 9 (1987); Note, Only theNews That's Fit to Print: Student Expressive Rights in Public School CommunicationsMedia AfterHazelwood v. Kuhlmeier, 11 HASTINGS COMM./ENT. L.J. 35, 35 (1988); Comment, Students' FirstAmendment Rights: Gone with the Wind? 11 AM. J. TRIAL ADvoC. 173, 184 (1987); Note, Kuhlmeierv. Hazelwood School District: The First Amendment Rights of Public High School Students, 22AKRON L. REV. 251, 251 (1988); Leading Cases, 102 HARV. L. REv. 143, 272 (1988); Note, Seen ButNot Heard: In What Forum May High School Students Exercise First Amendment Rights AfterHazelwood?, 25 WILLAMETrE L. REv. 197, 222 (1989).

16. Note, Bethel School Districtv. Fraserand StudentFreeSpeech, 9 GEO.MASON L. REV. 369,369 (1987); See also, Comment, The FirstAmendment Rights of Public School Students Are NotViolated When School Officials Impose ReasonableEditorialControl over the Contentof School-SponsoredPublications,supra note 15, at 213.

17. See, e.g. Comment, Public School Students' FirstAmendment Right of Expression Subjectto Standardof Reasonableness,supra note 15, at 856; Note, The Supreme Court FurtherRestrictsStudent First Amendment Rights in Public Schools: The Future of 'Free Trade in Ideas' AfterHazelwood School District v. Kuhlmeier, supra note 15, at 147; Recent Developments, The FirstAmendment and School-SponsoredActivities - Hazelwood School District v. Kuhlmeier, 11 IHARv.J. L. & PUB. POL'Y 837, 877 (1988); Bethel School Districtv. Fraserand Student Free Speech, supranote 16, at 369; Note, Tinker to Fraserto Hazelwood: Supreme Court's Double Play Combination

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In the Wake of Fraser nd Hazelwood 257limitation of students' rights of free expression set by Fraser andHazelwood. After Fraser, one commentator suggests, the focus of the"disruptive" test in Tinker now centers on "the teaching of societal valuesrather than the maintenance of classroom order." ' 8The Hazelwood stan-dard is seen to be the "reasonableness" of the limitations of "school-sponsored student expression" rather than the disruptiveness of thespeech. ' 9 Other commentators take an even more restrictive view of thesecases, characterizing them as creating new exceptions to the first amend-ment, that of" 'indecent student speech' or the use of sexual innuendo bya student" 20 or, less elegantly, the "disruption of value inculcation excep-tion." 21 Implicit in this criticism is a preference for the "disruption" stan-dard of Tinker.22

Another concern is the lack of clarity in the decisions. Although Fraseris referred to as "murky," ' 23 the concerns are particularly with theHazelwood decisions. Commentators are concerned that the majoritydoes not make clear the "limits of its application" 24 and that it charts a"foggy course" for lower courts. 25 Such ambiguity, it is claimed, is madeclear only by development of subsequent case law, 26 which leads to confu-

Defeats High School Students' Rally for First Amendment Rights: Hazelwood School District v.Kuhlmeier, 38 DE PAUL L. REV. 487, 504 (1989); Abrams and Goodman, supra note 15, at 707; TheSupreme Court Report, 74 A.B.A. J. 38, 40 (1988); Comment, The First Amendment Rights of PublicHigh School Students: Bethel School District v. Fraser, supra note 15 , at 260; Note, Silencing StudentSpeech: Bethel School District No. 403 v. Fraser, 37 Am. .L. REV. 03, 221 (1987); Recent Develop-ment, Hazelwood School District v. Kuhlmeier: An Administrator's Authority to Exercise PriorRestraint over School-Sponsored Publications, 62 TUL. L. REV. 1467, 1475 (1988); But cf. Note, ToPublish or Not to Publish: That is the Question: Hazelwood School District v. Kuhlmeier, 53 Mo. L.REV. 807, 822 (1988).

18. Note, The FraserBalancing Test: Leaving Cohen's Jacket at the Schoolhouse Gate: BethelSchool District v. Fraser, 52 Mo. . REV. 913, 914 (1987).19. Comment, PublicSchool Students' First Amendment Right of Expression Subject to Stan-dard of Reasonableness: Hazelwood School District v. Kuhlmeier, supra note 15 , at 856.20. Comment, First Amendment Rights in Public Schools: Bethel School District v. Fraser,supra note 15, at 908.21. Note, Protecting a School's Interest in Value Inculcation to the Detriment of Students' Free

Expression Rights: Bethel School District v. Fraser, 28 B.C.L. REv. 595, 598 (1987).22. Prygoski, Low-Value Speech: From Young to Fraser,32 ST. Louis U.L. J. 317, 352 (1987).See also, Comment, MaintainingOrder or Denying ConstitutionalRights?, 17 MEM. ST. U.L. REV.447, 463 (1987); Abrams and Goodman, supra note 15, at 724.23. Note, Silencing Student Speech: Bethel School DistrictNo. 403 v. Fraser, upra note 17, at221; See also, Note, The FraserBalancing Test: Leaving Cohen's Jacket at the Schoolhouse Gate:Bethel School District v. Fraser, supra note 18 , at 914.24. Note, Tinkering with Tinker: Academic Freedom in the PublicSchools - HazelwoodSchoolDistrict v. Kuhlmeier, 16 FLA. ST. U.L. REV. 159, 182 (1988). See also, Note, Kuhlmeier v. HazelwoodSchoolDistrict: The FirstAmendment Rights of PublicHigh School Students, supra note 15, at 260.

25. Note, Turning Back the School Clock: A Case Analysis of Hazelwood School District v.Kuhlmeier, supra note 15, at 150.

26. Note, The Expanded Role of School Administratorsand Governing Boards in FirstAmend-

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258 Journalof Law &Educationsion among circuits. 2 7 Furthermore, commentators suggest this lack ofclarity creates a potential for abuse. 28Concern for abuse takes a variety of directions. For example, fearsabound that Fraser and Hazelwood will be used to erode rights of free

speech beyond publications and speech "sponsored" by public highschools. 29 Specifically, the commentators are concerned these cases willserve as precedent for censoring library holdings 30 or extending the firstamendment exceptions to the public college and university press 3 ' or toadults. 32

In addition to concerns about extension of the holdings in FraserandHazelwood beyond the high school, commentators decry the essence ofthe decisions themselves. For example, the Hazelwood decision is seen as acontent restriction in which the Court moves closer to "debating themerits of speech, based on the majority's reaction, rather than upholdingthe rights of the speaker." ' 3 3One of the Court's main concerns in the Hazelwood decision is thepublic-forum doctrine. Commentators dispute the value of this part of thedecision. Positive evaluations include claims that Hazelwood clarifies the

ment Student Speech Disputes: Bethel School DistrictNo. 403 v. Fraser, 17 GOLDEN GATE U.L. REv.257, 277 (1987).27. Note, Tinker to Fraser to Hazelwood: Supreme Court'sDouble Play Combination DefeatsHigh School Students' Rallyfor First Amendment Rights: Hazelwood SchoolDistrict v. Kuhlmeier,supra note 17 , at 511.28. Note, Hazelwood SchoolDistrict v. Kuhlmeier: The Death of No Prior Restraint in an Of-ficial High School Newspaper, 91 W. VA. L. REV. 635, 661 (1988-1989).29. Recent Development, It's All on How You Label It: Students Get a Civics Lesson inHazelwood School District v. Kuhlmeier, 41 OKLA. L. REV. 191, 193 (1988). See also, Note, Tinkeringwith Tinker: Academic Freedom in the Public Schools - Hazelwood School District v. Kuhlmeier,supra note 24, at 182; Note, The Fraser Balancing Test: Leaving Cohen's Jacket at the SchoolhouseGate, supra note 18 , at 914. But cf, Note, Hazelwood School District v. Kuhlmeier: Teaching OurNation's Youth a Different Civics Lesson, 1988 DET. C.L. REV. 669, 680-683.30. Note, Turning Back the School Clock: A Case Analysis of Hazelwood School District v.Kuhlmeier, supra note 15, at 157.31 . Note, Officials May Censor School-Sponsored Student Speech if Censorship has 'ValidEducational Purpose,' 10 U. ARK. LirT.E ROCK L.J. 755, 769 (1987-88). See also, Supreme CourtRamifications, Hazelwood School District v. Kuhlmeier: Has the Schoolhouse Gate Shut on theMarketplace of Ideas?, 3 ST. JOHN's L. REV. 141, 157 (1988); Note, Hazelwood School District v.Kuhlmeier, 16 N. KY. L. REV. 191, 203 (1988); Hazelwood SchoolDistrict v. Kuhlmeier: The CourtDeclines to Tinker with Students, Free Press Rights, 15 J. ONT. L. 1,2 (1989); Note, Turning Backthe School Clock: A Case Analysis ofHazelwood SchoolDistrict v. Kuhlmeier, supra note 15 , at 188;Note, Tinker to Fraser to Hazelwood: Supreme Court's Double Play Combination Defeats HighSchool Students' Rallyfor First Amendment Rights: Hazelwood SchoolDistrict v. Kuhlmeier, supranote 17 , at 511; Recent Decision, Hazelwood School District v. Kuhlmeier: Increased Regulation ofthe University Press?, 40 ALA. L. REV. 267, 281 (1988).32. Note, Bethel School District No. 403 v. Fraser - Is the Pig in the Parlor?, 15 N.KY.L. REv.205, 225 (1988).33. Comment, Freedom of Speech - Bethel School District No. 403 v. Fraser, 5 N.Y.L.S. J.HUM. RT. 189, 210 (1987).

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In the Wake of Fraserand Hazelwood 259notion of public forum with an easy-to-apply standard. 34 However, onecommentator argues that, in light of the Court's overall analysis, thepublic forum language is "excess verbiage." 35 On the other hand, anothercommentator sees the distinction been public and nonpublic, specializedfora as not only essential to the decision but as replacements for the"disruptive" test of Tinker. 36 Yet another argues that the case blends thetwo tests-when a forum is not public but specialized, then limitations onspeech may be only "reasonably related to legitimate pedagogical con-cerns. '" 37 In other words, Hazelwood is seen as portending "that theCourt will not view the exercise of reasonable editorial discretion by stateentities over the content of pubications they sponsor as unconstitutionalper se. ' ' 38

One basis of the specialized forum analysis is the special role of theschools. However, some commentators suggest the Court ignores the im -portance of a student forum in the educational process. 39 Freedom, theyargue, teaches as well as control does. 40

One of the problems of the Hazelwood case is that the question of stu-dent publications which are not a part of a classroom exercise, or notfunded by the school, is not answered. 4 1 The suggestion is made thatfailure to address this distinction could "backfire" and leave way foruncensored publications on public high school grounds. 42Although the bulk of the commentary on Fraserand Hazelwood is quitenegative, the decisions are praised in two articles. One praises the decisionsfor locating control of schools with school officials rather than federalcourts. 43 The other, by the Dean of Brigham Young University LawSchool, takes a unique perspective on freedom of speech. He argues that

34. Note, Seen But Not Heard: In What Forum May High School Students Exercise FirstAmendment Rights After Hazelwood?, supra note 15, at 222.

35. Note, Tinker to Fraser o Hazelwood: Supreme Court'sDouble Play Combination DefeatsHigh School Students' Rally for FirstAmendment Rights: Hazelwood School Districtv. Kuhlmeier,supra, note 17, at 509.36. Note, FirstAmendment Restrictionsin Public School: A Public Forum Debate: HazelwoodSchool District v. Kuhlmeier, 22 CREIGHTON L. REV. 22, 23 (1988-1989).37. Note, To Publish or Not to Publish: That is the Question: Hazelwood School District v.Kuhlmeier, supra note 17, at 819.

38. Wiltse, The Road Not Taken: Controlof Speech in Non-Public Forums,a ComparisonofKuhlmeier and Sinn, 19 J. L. & EDUC. 51, 72 (1990).

39. Note, The School as Publisher:Hazelwood School District v. Fraser,supra note 15 , at 511.40 . Meyer, supra note 15, at 76.41. Note, Hazelwood School District v. Kuhlmeier; The DeathofNo PriorRestraint,supra note28, at 661.42. Note, Tinker to Fraser o Hazelwood: Supreme Court'sDouble Play Combination Defeats

High School Students' Rallyfor FirstAmendment Rights: Hazelwood School District v. Kuhlmeier,supra note 17, at 511.

43. Note, FirstAmendment Restrictions n PublicSchools: A Public Debate:HazelwoodSchoolDistrict v. Kuhlmeier, supra note 36, at 239.

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260 Journalof Law &EducationHazelwood does not weaken students' constitutional rights but ratherstrengthens their interest in the principles of free expression. 44 The focus,he argues, ought to be on institutions rather than individuals, as "personalrights may take ongoing sustenance from certain forms of institutionalnurturing." ' 45 In other words, the first amendment protects freedom "forexpression," ' 46 protecting "not only writers, but newspapers[,] not onlyreligious persons, but churches[,J not only individual students andteachers, but schools." ' 47In sum, the commentary on Fraserand Hazelwood recognizes that theCourt has shifted in its position on free-speech rights of public high schoolstudents and, with few exceptions, expresses concern about the erosion ofstudent rights. Particular concerns include the lack of clarity in the deci-sions, with the attendant worry that state and lower federal courts willhave wide latitude in interpreting the decisions, resulting in extension ofthe precedent beyond the schoolhouse gate.

RECENT CASESReview of recent cases relying on Fraserand Hazelwood indicates thatnot all concerns by legal commentators were misplaced. Although some

courts have limited Fraser and Hazelwood to their factual situations,others are extending the precedents outside the public school classroom.However, the variety of responses by state and lower federal courts in-dicates that concerns about the ambiguity of the two cases were most ontarget.In general, Fraserand Hazelwood are used to limit or give special treat-ment to the constitutional rights of public high school students. 48 Usually,the limited constitutional right is free expression; however, some courtscite one of these cases to limit due process rights. Fraser s used for theproposition that due process for students does not require notice of allpossibilities or ranges of punishment for certain expression. 49The right to

44 . Hofen, Hazelwood School District and the Role of FirstAmendment Institutions, 1988DUKE L.J. 685.

45. Id. at 686.46. Id. at 700.47. Id. at 704-705.48. Poling v. Murphy, 872 F.2d 757 (6th Cir. 1989), cert. denied, 110 S.Ct. 723 (1990).49. Rosa R. v. Connelly, 889 F.2d 435, 439 (2nd Cir. 1989), cert. denied, __ U.S. __, 11 0S.Ct. 3225 (1990) (affirming a summary judgment for school sued by student challenging decision todeny credit for time served out of school during pendency of expulsion hearing). See also Palmer v.Merluzzi, 868 F.2d 90 , 94 n.3 (3rd Cir. 1989). Fraseralso is used for standards for de novo review. See

also Acorn v. City of Phoenix, 798 F.2d 1260, 1263 (9th Cir. 1986).

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In the Wake of Fraser and Hazelwood 261discipline students is a part of the school's duty to prepare them forcitizenship. 50 The Third Circuit cites Fraser, saying "[sichool disciplinerules need not be as detailed as a criminal code." 51 However, the courtfinds a due process problem in a sixty day athletic suspension for smokingmarijuana and drinking a beer at the school radio station, saying students"should not be subjected to the unrestrained hands of school authoritieswho wish to act whenever and however they please." ' 52In most cases citing Fraser and Hazelwood, the issue is expression.Many courts read these cases as forcing them to consider the special cir-cumstances of the educational process in defining the scope of firstamendment protection. For example, consideration of the special cir-cumstances leads courts to acknowledge that teachers serve as role models,which results in limitation on their first amendment rights while in theclassroom. 53 Among the unprotected expressive activities of teachers isshowing R-rated movies to high school students, 54 keeping a Bible on thedesk in a classroom, 55 or swearing in a classroom. 56

In addition, some courts are reading Hazelwood as giving schools con-trol over expression that is sponsored or promoted by the school, as wasSpectrum, the school newspaper in the Hazelwood case. This would makecases on point if they involve expression that bears the "imprimatur" ofthe school.5 7 The Sixth Circuit has made much of this distinction. Thecourt affirmed dismissal of a petition by the parents of a student who wasdisqualified as a candidate for student council; the student gave a cam-paign speech despite being warned to change certain references to the ad-ministration and other students. In doing so , the court appliedHazelwood, finding the assembly was held during school hours and onschool property with "attendance compulsory." 58 As the campaign

50 . Boster v. Philpot, 645 F. Supp. 798, 803 (D.Kan. 1986). See also Brands v. Sheldon Com-munity School, 671 F. Supp. 627, 634 n.6 (N.D. Iowa 1987) (involving ineligibility of high schoolathlete following statutory rape with three other males).

51. Palmer v. Merluzzi, supra note 49 , at 94 n.3.52 . Id. at 100. See also People in Interest of P.E.A., 754 P.2d 382, 388 n.6 (Colo. 1988) (claim-ing discretion is not unbounded and holding that fourteenth amendment rights of minors must be pro-

tected).53. See, e.g., Poling v. Murphy, supra note 48, at 762.54. Fowler v. Board of Educ. of Lincoln County, Kentucky, 819 F.2d 657, 661 (6th Cir. 1987),

cert. denied, 484 U.S. 986 (1987).55. Roberts v. Madigan, 702 F. Supp. 1505, 1518 (D . Colo. 1989).56. Martin v. Parish, 805 F.2d 583, 585 (5th Cir. 1986).57. Searcey v. Crim, 681 F. Supp. 821, 827 (N.D. Ga. 1988). See also Crosby v. Holtsinger, 852

F.2d 801, 802 (4th Cir. 1988).58. Poling v. Murphy, supra note 48 at 762-763. Se e also Planned Parenthood of S. Nevada v.Clark County School Dist., 887 F.2d 935, 941 (9th Cir. 1989) (allowing a school to dissociate itselffrom certain types of speech if a public forum is found).

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262 Journal of Law & Educationspeeches were school-sponsored speech, the actions by the school weredetermined to be constitutional. The Fourth Circuit affirmed the dismissalof an action against a high school prinicipal for banning use of theschool's "Johnny Reb" symbol because it might reasonably be perceivedto bear the imprimatur of the school. 59

The tolerate/promote distinction, however, does not always result indecisions limiting speech. The Ninth Circuit, in a case brought by a publichigh school student challenging the school district's refusal to provide aroom for religious meetings on school property, affirmed the denial of amotion for preliminary injunction, relying on Hazelwood. The Circuitmade clear its intention to rely on the tolerate/promote distinction byreversing a decision in favor of a school district policy requiring submis-sion and approval of material to be distributed on school grounds as un-constitutionally overbroad. The court stated, "This case, unlike[Hazelwood] concerns a policy aimed at curtailing communicationsamong students, communications which no one could associate withschool sponsorship or endorsement." 60

A different distinction is drawn by other courts-speech inside aclassroom as opposed to outside. A Federal District Court in New Yorkfound a student newspaper created as an extracurricular activity to havegreater first amendment protection than one created by a journalism class.The court bypasses the tolerate/promote distinction:

To be sure, the passage does invite a broad interpretation of the term cur-riculum, and does suggest that educators' authority to control student expressionmay derive less from the fact that the particular forum is linked to the classroomthan from the educators' sponsorship of an expressive activity for which there issome articulable pedagogical purpose. Nonetheless ... because Hazelwoodopens the door to significant curtailment of cherished first amendment rights, thisCourt declines to read the decision with the breadth its dictum invites. Becauseeducators may limit student expression in the name of pedagogy, courts mustavoid enlarging the venues within which that rationale may legitimately obtainwithout a clear and precise directive. 6 1

Courts that adopt this distinction apply Hazelwood to in-class matters.The Ninth Circuit found a policy that ignores the question of curricularversus noncurricular and subjects all communication on school grounds to

59. Crosby v. Holtsinger, supranote 57, at 802. For imprimatur being a trial issue, see Romanov. Harrington, 725 F. Supp. 687, 69 1 (E.D.N.Y. 1989).60. Burch v. Barker, 861 F.2d 1149, 1150 (9th Cir. 1988).61 . Romano v. Harrington, supra note 59, at 689. On the other hand, the Eighth Circuit uphelda requirement of advance review for distribution of underground newspapers on a high schoolgrounds, citing Fraser'sauthorization for school officials to limit lewd, indecent, or offensive speech.Bystrom v. Fridley High School, 822 F.2d 747, 753 (8th Cir. 1987).

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In the Wake of Fraseran d Hazelwood 263pre-publication review, including an underground newspaper, to violatethe first amendment. 62 However, as a Florida court says, if the expressionis part of the curriculum, Hazelwood gives the school authorities broaddiscretion to determine "the educational suitability of the curricularmaterials in question." 63

Another issue for courts has been the effect of Fraserand Hazelwoodupon Tinker and its disruption standard. The Ninth Circuit attempted todistinguish the cases using Hazelwood'spromote/tolerate distinction. Thecourt suggests that Tinker dealt with what school officials must tolerate,but both Hazelwood and the Establishment Clause support the schooldistrict's refusal to promote religious speech by denying religious groupsthe right to meet on school grounds. 64 Although the substitution ofHazelwood's tolerate/promote" distinction seems to be a major changefrom Tinker's "materially disrupt" standard, some courts have struggledto maintain some aspects of Tinker.65 On the other hand, the Eighth Cir-cuit, in affirming a decision upholding advance review for an undergroundhigh school newspaper, claimed Tinker's disruption standard can be metby school official's forecast of disruption, 66which gives far less protectionto students' free-speech rights. One federal district court in Indiana sug-gests the Tinker language that students did not shed their rights at theschoolhouse gate is narrowed "considerably."

67Perhaps the most damage to Tinker is done by courts relying on Fraser.

The key language in Fraser s the "inculcation of values" sections. Usual-ly, courts cite these passages to support punishment or censorship of

62. Burch v. Barker, supra note 60.63. Virgil v. School Bd. of Columbia County, Florida, 677 F. Supp. 1547, 1550 (M.D. Fla.1988), aff'd, 862 F.2d 1517 (11th Cir. 1989). See also Krizeky v. Cicero-Stickney Township High

School Dist. No. 201, 713 F. Supp. 1131, 1138-39 (N.D. Ill. 1989) (involving suit by nontenuredteacher who was no t renewed following showing of R-rated film in class).64. Garnett v. Renton School Dist. No. 403, 865 F.2d 1121, 1126 (9th Cir. 1989). After this af-firmation of the trial court's refusal to grant a preliminary injunction, the case was heard, with verdictin favor of the school district upheld in Garnett v. Renton School Dist. No. 403, 874 F.2d 608 (9thCir. 1989). However, the Supreme Court has vacated the case for reconsideration in light of Board ofEduc. of Westside Community Schools v. Mergens, 110 S.Ct. 2356 (1990) (involving equal access toschool meeting rooms for a Christian high school club), Garnett v. Renton School Dist. No. 403, 110S.Ct. 2608 (1990).

65. See, e.g., Nelson v. Moline School Dist. No. 40, 725 F. Supp. 965, 971 (C.D. Ill.989) (con-cerning distribution of nondenominational religious publications on school grounds), and Rivera v.East Otero School Dist., 721 F. Supp. 1189, 1195 (D. Colo. 1989) (dealing with school policy ofdistribution of nonschool literature on school grounds).66. Bystrom v. Fridley High School, supra note 61 , at 754.

67. Schaidl v. Tippecanoe City School Corp., 679 F. Supp. 833, 851 (N.D. Ind. 1988), aff'd, 864F.2d 1309 (1988). See also Virgil v. School Bd., supra note 63, at 1550, in which the breadth ofHazelwood is affirmed.

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264 Journal of Law &Education

"vulgarity," "lewd" expression, or simply sexually explicit expression 6 8as well as to inculcate values of "civility." ' 69 This duty is seen to giveschool districts the right to discriminate among speech based on content. 70For example, the language has been used to uphold decisions punishing astudent for wearing a T-shirt emblazoned with a caricature of school of-ficials, 7 ' removal of great literature with sexual themes from a readinglist, 72 and implementation of policies against sexual or racial epithets. 73 Adecision of a district court in Texas indicates the length to which partieswill go in using this langauge-a school district which terminated un-documented alien custodial workers because they gave false Social Securi-ty numbers argues that such action was in keeping with its duty to in-culcate the value of honesty in its students. 74

Another frequent use of Fraser is to give schools the right to limitvulgarity. The Eighth Circuit vacated a determination that a schooldistrict's policy of predistribution review of all materials handed out onschool premises was unconstitutional, relying heavily on Fraserand Hazel-wood, stating the Supreme Court made clear "that school boards havepower to prohibit the introduction onto their property by students of writ-ten material pervaded or characterized by four-letter words that used to beconsidered unprintable." 75

However, not all jurisdictions are using Fraser o systematically destroystudents' free-speech rights. In several decisions indicating hostility to anerosion of Tinker, the "inculcate values" language is used to further ex-pression as well. For example, the Sixth Circuit reversed a decision that

68. See, e.g., Bystrom v. Fridley High School, supra note 61, at 753.69 . Poling v. Murphy, supra, note 48, at 758.70 . Fowler v. Board of Educ., supra note 54, at 661 (involving showing of the movie Pink Floyd- The Wall to a high school class); Martin v. Parish, supra note 56, at 1550 (involving a college pro-

fessor swearing in class); and Nelson v. Moline School Dist., supra note 66, at 69-70 (involving schoolpolicy regarding distribution of nonschool materials).

71. Gano v. School Dist. 411 of Twin Falls City, Idaho, 674 F. Supp. 796, 798 (D. Idaho 1987).72. Virgil v. School Bd. of Columbia County, Florida, supra note 63, at 1522.73. Doe v. University of Michigan, 721 F. Supp. 852, 863 (E.D. Mich. 1989) (a challenge to a

university policy of discriminatory harassment).74 . League of United Latin American Citizens v. Pasadena Indep. School Dist., 662 F. Supp.443, 451 (S.D. Tex. 1987).

75. Bystrom v. Fridley High School, supra note 61, at 753. The court relies on the SupremeCourt's approving quotation of a circuit court case stating that "the first amendment gives a highschool student in the classroom right to wear Tinker's armband, but not Cohen's jacket." BethelSchool Dist. No. 403 v. Fraser, 478 U.S. 675, 681, citingThomasv. Board of Educ., Branville CentralSchool Dist., 607 F.2d 1043, 1057 (2nd Cir. 1979). Cohen v. California, 403 U.S. 15 (1971), held thata jean jacket, worn in a courthouse, embroidered with "Fuck the Draft," was constitutionally pro-tected expression. See also Martin v. Parish, supra note 56, at 585 (involving a college professordischarged for cursing in class).

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In the W ake of Fraser andHazelwood

certain required and prescribed-readings textbooks violated the constitu-tional rights of objecting parents, citing Fraser, and suggesting thattolerance of divergent views was a value the school could inculcate. 76 In asimilar use of Fraser, he Eleventh Circuit held that toleration of diverseviews and independent thought "is an entirely appropriate seculareffect." ' 77 A Mississippi state court used the language in finding for ateacher who sought unemployment benefits after dismissal from her jobfor wearing a religious headband, saying Fraser"reminds us that, amongthe fundamental values schools are supposed to teach, are 'tolerance ofdivergent political and religious views.' ",78

One of the most frequently cited aspects of the two cases is thedeference the Court gives to school officials. Other courts endorse theclaim that it is the school administration, not federal courts, who shouldbe running the schools. 79

Usually, however, courts use this language to defer to judgments byschools on matters such as "discipline and maintaining order." 80 Thisdeference can come despite the court's disagreement. In a case involving achallenge to a school board's decision to discontinue use of twohumanities texts deemed sexually explicit and vulgar-AristophanesLysistrataand Chaucer's The Miller's Tale-the court upheld the decisionof the board while remarking, "[o]f course, we do not endorse the Board'sdecision. Like the district court, we seriously question how young personsjust below the age of majority can be harmed by these masterpieces ofWestern literature." 8 ' The Sixth Circuit upheld dismissal of a challenge todisqualification of a candidate for student-council president after hedelivered a speech including rude and discourteous remarks about schooladministrators at a school-sponsored assembly, saying "The universe oflegitimate pedagogical concerns is by no means confined to theacademic." 8 2

There are limits, however, to some jurisdictions' deference. A Califor-

76. Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1068 (6th Cir. 1987), cert. denied,484 U.S. 1066 (1988).

77. Smith v. Board of School Comm'rs. of Mobile County, 827 F.2d 684, 692 (1 1th Cir. 1987).78. Mississippi Employment Sec. Comm'n v. McGlothin, 556 So. 2d 324, 331 (Miss. 1990).79 . Palmer v. Merluzzi, supra note 49, at 41 4 (involving suspension of a student for smoking

marijuana and drinking beer on high school grounds); Olesen v. Board of Educ. of School Dist. No.228, 676 F. Supp. 820, 822 (N.D. Il. 1987) (involving a school's antigang rule prohibiting wearing ofearrings by male students).

80. Wise v. Pea Ridge School Dist., 855 F.2d 560, 566 (8th Cir. 1988). See also, Poling v.Murphy, supra note 48, at 761.

81. Virgil v. School Bd., supra note 63, at 1525.82. Poling v. Murphy, supra note 48, at 762.

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266 Journalof Law &Educationnia court suggests it would not be blind to the reasons a school limitedspeech:

We do not interpret this statement to mean that regardless of the religious,political, or philosophical reasons why a school board may exclude a book from acurriculum, the board's exercise of discretion will be upheld so long as the boardexpresses some educational reason for excluding the book. This interpretationwould permit school officials to camouflage religious 'viewpoint discrimination'[ and would be tantamount to vesting an absolute discretion in the board ....Thus, the true motives of the board members must be examined to answer a firstamendment challenge. 8 3

A federal district court in New York granted an injunction to parentschallenging a school's exclusion of their daughter from kindergartenbecause she wasn't immunized based on the parents sincerely heldreligious beliefs. The court cited the Hazelwood language, but held it isn'ta question "of education but rather a first amendment claim about whichthe school board has no special expertise." 84 The Ninth Circuit likewiselimits school board discretion "by applicable constitutional or statutoryprinciples." 85

At least one state has avoided limitation of student free-speech rights inthe face ofFraserand Hazelwood. California courts, in reliance on a statestatute giving free-speech rights to students, base their post-Fraserand-Hazelwood decisions on the statute.8 6

The portion of Hazelwood that may prove most enduring is its con-tribution to the law of public fora. The Hazelwood decision rested on afinding that the school newspaper was not a public forum as it was notopened to indiscriminate use by some segment of the public. A number ofsubsequent decisions involve a two-step determination, in reliance onHazelwood. The first step is to determine whether the arena of the expres-sion in question is a public forum. Once a finding is made that no publicforum exists, deference is given to the school district's restrictions on ex-pression.Some cases read Hazelwood as saying a public high school is not apublic forum, indicating no distinction among various fora within theschool. 87 Some cases, however, go beyond this analysis to determine

83. McCarthy v. Fletcher, 254 Cal. Rptr. 714, 724 (Cal. Ct. App. 1989) (involving school of-ficials' attempt to restrict teacher's use of John Gardner's Grendel and Gabriel Garcia Marquez's OneHundred Years of Solitude in class).84. Lewis v. Sobol, 71 0 F. Supp. 506, 512 (S.D.N.Y. 1989).

85. Garnett v. Renton School Dist., supra note 64, at 614.86. Wexner v. Anderson Union High School Dist. Bd. of Trustees, 258 Ca. Rptr. 26, 53 (Cal. Ct.

App. 1989).87. See, e.g., Garnett v. Renton School Dist., supra note 64, at 612, in which classrooms were

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In the Wake of FraserandHazelwood 267whether some aspects of public fora may exist on school grounds. TheNinth Circuit actually looks at the school district's intent before determin-ing whether a public forum exists. 88 Similarly, the D.C. Circuit found adistinction between a classroom and a football stadium owned by a schooldistrict, as the latter was "dedicated to boisterous recreational activity." 89The Eleventh Circuit harmonizes Hazelwood with the public forum caseof Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 90claiming the former merely applies the latter to a "curricular program." 9'

Some cases use Hazelwood's public-forum analysis far beyond thepublic high school. A federal district court in Florida, in a challenge to amunicipal airport's policy prohibiting use of tables and semi-fixed signs incertain sections of an airport, engages in public-forum analysis by citingHazelwood for what is not a public forum. 92 A federal district court in Il-linois, in a case involving challenge to a city ordinance regulating locationof coin-operated newsstands, cites Hazelwood for the proposition thatonce a forum is determined to be nonpublic, it may be regulated in anyreasonable manner, "so long as it is viewpoint-neutral." ' 93 The EleventhCircuit extends Hazelwood to the college level, finding that the studentgovernment association elections did not involve public fora, therefore,"[t]he university should be entitled to place reasonable restrictions on thislearning experience." ' 94As this case indicates, there is evidence that one of the biggest concernsof commentators-that Fraserand Hazelwood would be used to extendlimitations on student rights of free expression beyond the public highschool classroom-has some basis. The Eleventh Circuit upheld regula-tions adopted by a college student government association regardingdistribution of campus literature and limiting the time period for politicaldebate and open fora for student government elections. Citing Fraser's

found not to be public fora, and Kirkland v. Northside, Ind. School Dist., 890 Fr2d 794, 800 (5th Cir.1989), holding that high schools generally are not public fora. In Seemuller v. Fairfax County SchoolBd., 878 F.2d 1578, 1580 n.2 (4th Cir. 1989), a case brought by a teacher who was disciplined forwriting a letter to the school newspaper, the court distinguished Hazelwoodon its facts, as the schooldid not claim the newspaper was not a public forum.

88. Planned Parenthood of S. Nevada v. lark County School Dist., supra note 58 at 940 (in-volving advertisements in the school newspaper, yearbook, and athletic program).

89. Stewart v. District of Columbia Armory Bd., 863 F.2d 1013, 1019 (D.C. Cir. 1988). InCrosby v. Holtsinger, supra note 57, at 802 n.2, the Fourth Circuit found no public forum relating tothe school's use of the Johnny Reb symbol.

90 . 473 U.S. 788 (1985).91. Searcy v. Harris, 888 F.2d 1314, 1319 (11th Cir. 1989).92. International Caucuses of Labor Comms. v. Dade County, Florida, 724 F.Supp. 917, 924

(S.D. Fla. 1989).93. Chicago Tribune Co. v. City of Chicago, 705 F. Supp. 1345, 1347 (N.D. II1. 1989).94 . Alabama Student Party v. Student Gov't. Ass'n., 867 F.2d 1344, 1347 (11th Cir. 1989).

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268 Journal of Law &Educationdiscussion of the school's educational mission and Hazelwood's notionthat the first amendment rights of public school students are notautomatically coextensive with rights of adults in other settings, the courtfinds no public forum, failing to address the issue of whether theseprecedents are applicable beyond the high school. 95The First Circuit, however, indicates Hazelwood is not applicable tocollege newspapers, 96 and a New Jersey court skirts the issue in granting amotion for summary judgment to a college student newspaper in adefamation suit brought by a college administrator lampooned by a spoofedition of the paper. Referring to the plaintiff's reliance on Hazelwood,the court says, "The argument begs the question, which is whether indeedthe publication here is constitutionally protected. Having determined thatit is, there is no need in this case to consider the key question of the ap-plicability of Hazelwood . . . to a state college's student newspaper." ' 97Casual language in other cases indicates the court might read Fraser orHazelwood as applicable to all students. A California court, in finding nolower standard of first amendment protection for aliens in deportationcases, in dictum, refers to areas where first amendment protection islower-prisons, the military, and, citing Fraser, "students." ' 98

Once deciding schools are different, the standard for limiting speech isvery low. In many cases, courts are allowing school officials to limitspeech in any way so long as it is "reasonably related to a pedagogical con-cern." 99 A California court correctly notes that this notion of pedagogicalconcern is "the current emphasis of federal decisions." 100 The Fifth Cir-cuit goes so far as to locate final say in the reasonable belief of the schoolboard rather than that of teachers, saying "[wihile teachers may havespecial competence in methods of classroom instruction, they have nospecial skill in making final curricular decisions." 10'

95. Id. The Second Circuit attempted to distinguish between educational activities and other ac-tivities in a university, ruling limitations on sale of product in dormitory rooms unconstitutional. See,Fox v. Board of Trustees of State Univ. of N.Y., 841 F.2d 1207 (2nd Cir. 1988), rev'd, 109 S.Ct. 3028(1989), based on lessened protection for commercial speech.

96. Student Gov't. Ass'n. v. Board of Trustees of Univ. of Mass., 868 F.2d 473, 480 n.6 (1st Cir.1989).

97. Walko v. Kean College of N.J., 561 A.2d 680, 687 n.5 (N.J. Super. Ct. Law Div. 1988)(court upholds school in suspension for vandalism, finding no due process violation; Frasercited fo rlower constitutional standard for students).

98. American-Arab Anti-Discrimination Comm. v. Meese, 714 F. Supp. 1060, 1081 (C.D. Cal.1989). See also, Torres v. Wisconsin Dep't. of Health and Social Serv., 859 F.2d 1523, 1534 (7th Cir.1988) (dissenting opinion), cert. denied, 109 S.Ct. 1537 (1989).99. Nelson v. Moline School Dist., supra note 66, at 971; Virgil v. School Bd. of ColumbiaCounty, Florida, supra note 63 at 1525; Alabama Student Party v. Student Gov't. Ass'n., supra note94 , at 1347.

100. Leeb v. Delong, 243 Cal. Rptr. 494, 502 n.10 (Cal. Ct. App. 1988).101. Kirkland v. Northside Indep. School Dist., supra note 87, at 801.

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In the Wake of Fraserand Hazelwood 269

The final use of Fraserand Hazelwood is the broadest-indicating awillingness to extend the precedents beyond students of any sort. For-tunately, this group of cases is very limited. A Washington court readsFraser as allowing content restriction,1 02 and a Wisconsin court extendsHazelwood to youth in any setting. 103

CONCLUSIONSAlthough instances can be found confirming every dire prediction made

by a legal commentator writing about Fraserand Hazelwood, high schoolstudents have felt the biggest effect. A majority of the cases reviewedeither have adopted the public-forum analysis from Hazelwood or as-sumed the right of the school to limit speech as a part of inculcatingvalues, citing Fraser o uphold restrictions on expression by public highschool students. Furthermore, Hazelwood's "tolerate/promote" distinc-tion has not proved useful to limiting such actions by school officials inany consistent manner, as courts grant broad discretion to school officials.

However, the main difficulty with both cases, as commentators warned,is their ambiguity. Failing to establish the precise impact on Tinker, to ad-dress expression not "promoted" by the school, to determine whether theruling was limited to high schools, and to define limitations on the discre-tion of the school officials has left state and lower federal courts to fendfor themselves on these issues. The result has been predictable-conflict-ing decisions among the circuits as well the states.

102. City of Seattle v. Eze, 727 P.2d 626 (Wash. App. 1986).103. City of Milwaukee v. K.F., 42 6 N.W.2d 329, 338 (Wis. 1988).

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20JLEduc253 In the Wake of Fraser and Hazelwood ANN M. GILL

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