Returning to Hazelwood's Core: A New Approach to Restrictions on School-Sponsored Speech

Abstract

This article analyzes two major circuit splits that have developed in the wake of Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Supreme Court upheld a high school principal's censorship of a student newspaper produced in a journalism class, holding that school restrictions of student speech in school-sponsored settings are permissible as long as the restrictions are reasonably related to legitimate pedagogical concerns. Since then, Hazelwood has been invoked not only in a broad range of student speech contexts, but also in cases involving teachers' classroom speech, curricular and textbook selections, and the speech of outside entities in the school setting. The circuits, in turn, have divided over (1) how broadly Hazelwood should extend and (2) whether Hazelwood permits viewpoint-based speech restrictions, which are generally prohibited under the First Amendment. Each of these splits has generated much discussion by courts and commentators. But the two splits are rarely considered in tandem. In this article, I argue that the two circuit splits are actually connected in a crucial way: Hazelwood's over-extension has unnecessarily muddled the viewpoint discrimination question. After tracing the two evolving circuit splits and the relationship between them, I discuss why Hazelwood is uniquely suited to student speech cases, and why other existing legal frameworks are better equipped to handle the remaining school speech categories to which Hazelwood has been applied. I further argue that returning to Hazelwood's origins as a student speech case helps to clarify the viewpoint discrimination issue. In this vein, I propose a new sliding-scale framework for evaluating schools' viewpoint-based restrictions of student speech.