There has been in recent years a surprisingly broad but little noticed shift in judicial thinking about public schools”an affirmation of schools’ right to define the intellectual and moral content of education. After a quarter century of declining support for public education, this shift signals an important trend that may allow schools to take much stronger stands in teaching their students.
The late 1960s were a time of unprecedented turbulence in American schools. The student revolts that began at Berkeley in 1964 spread swiftly on college campuses, and while the effect on secondary schools was less visible, it was no less profound. Radical critics, shaking public confidence in traditional teaching, portrayed schools as the enemy of true learning and the instrument of social control. The influential British educator A. S. Neill argued that the child is “innately wise and realistic. If left to himself without adult suggestion of any kind, he will develop as far as he is capable of developing.” Some schools took this notion to the point that a cartoon from the early 1970s showed a boy lamenting, “Do we have to do what we want to again today, teacher?”
In the midst of this upheaval, the courts began to recognize a new concept of constitutional rights for students. In 1969 the Supreme Court heard Tinker v. Des Moines School District . Examining the discipline imposed on a group of Iowa children who wore black armbands to protest the war in Vietnam, the Court concluded that the school had violated the students’ constitutional right of free speech. In what became a much-quoted phrase, the Court announced that students do not shed their constitutional rights at the schoolhouse gate. The only guideline given administrators in determining the boundaries of student expression was the test of whether the expression manifestly disrupted the conduct of school.
In the years that followed, both the courts and the schools struggled through an erosion of confidence in schools’ educational authority. By the 1980s, researchers had begun to note serious declines in students’ academic achievement. Finding that students in private schools generally perform better by about two grade levels than students in public schools, James Coleman concluded in 1982 that a primary cause of academic deterioration in public schools was “a fundamental change in the relation of the school to the student.” Where schools had once been “a trustee for parental authority,” by the 1970s they had relinquished their authority.
Meanwhile, lower courts were interpreting Tinker in ways that further undermined school authority. In Fraser v. Bethel School District , where a Seattle high school student delivered a vulgar speech to a student assembly, a federal appeals court concluded that the school should not have disciplined the student. In Kuhlmeier v. Hazelwood School District , where a St. Louis administrator pulled two questionable stories from a high school’s official newspaper, a federal appeals court held that administrators may not suppress student publications unless the stories would actually disrupt educational activities or harm others so seriously that the school would probably lose a lawsuit for invasion of privacy.
The surprise came when Fraser and Hazelwood reached the Supreme Court in 1986 and 1988, and the Court reversed them both. “The process of educating our youth for citizenship in public schools,” the Court explained in Fraser , “is not confined to books, the curriculum, and the civics class.” Schools should teach “the habits and manners of civility as values conducive to happiness and indispensable to the practice of self government.” In Hazelwood , the Court distinguished the private, passive wearing of armbands in Tinker from expression in a school-sponsored activity. When activities imply school sponsorship, schools may regulate student expression within reasonable limits. “The education of the nation’s youth,” the Hazelwood Court declared, “is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.”
These decisions were not popular with the media (perhaps because they seemed to restrict free speech), and many legal scholars have tried to interpret them narrowly in order to preserve the priority of speech rights. Perhaps for these reasons, the lower courts’ application of Fraser and Hazelwood has not attracted much attention. But it deserves to, for the course of cases since 1988 offers parents and administrators new confidence in their ability to educate their children.
One group of cases has applied the Court’s reasoning that while schools must “tolerate” student expressions, they need not “promote” them with school-sponsored forums. Just after a Nevada federal court held that a school newspaper was obliged to accept advertisements from Planned Parenthood, the Supreme Court handed down Hazelwood , and the Nevada court withdrew its earlier opinion, relying on Hazelwood s theory that a school may determine the content of official publications. An appeals court in Florida in 1989 upheld the discontinuance of a humanities textbook which, in the opinion of the school board, contained vulgar and sexually explicit material.
A second group of cases reaffirms the doctrine that schools act in place of parents” in loco parentis . By the late 1970s most educators considered the concept as antiquated as the Latin phrase. Yet the Supreme Court itself resurrected the phrase in its 1986 Fraser opinion and later affirmed (in a 1995 decision affirming the right of public schools to conduct random drug tests on student athletes) that “for many purposes” public school teachers and administrators “stand in loco parentis over children entrusted to them.” A 1990 Minnesota case, citing Hazelwood , similarly upheld a school’s right to discipline students who attended parties at which alcohol was consumed.
A third set of cases since 1988 has extended Hazelwood to permit school officials to regulate the expression of faculty members. A 1993 federal case sustained a school’s decision not to reappoint a teacher who had inappropriately discussed the abortion of Down’s Syndrome babies in class. Another case upheld a school district’s right to require its teachers to use the district’s reading lists. And in a Colorado case in 1991, a federal court applied the Hazelwood standards to sustain a school’s decision to reprimand a teacher for making comments during class about the rumored sexual activities of two students. Recognizing the implicit school sponsorship of classroom activities, the court declared that judges should not “interfere with the authority of the school officials to select among alternative forms of discipline. We will protect appropriate constitutional interests [but we] should not and will not run the schools.”
A fourth set of cases has used Hazelwood to bolster the authority of schools to regulate student speech in assemblies and graduation ceremonies. In holding that the First Amendment does not give a student the right to make discourteous remarks about school officials, a federal appeals court stated in a 1989 Tennessee case, “Independence of thought and frankness of expression occupy a high place on our scale of values, or ought to, but so too do discipline, courtesy, and respect for authority . . . . Local school officials, better attuned than we to the concerns of the parents [and] taxpayers who employ them, must obviously be accorded wide latitude . . . . We may disagree with the choices, but unless they are beyond the constitutional pale we have no warrant to interfere with them.”
Hazelwood s principles are still subject to important limits. A few states, including California, have enacted laws allowing students editorial control over school newspapers. The rules from Tinker still require schools to tolerate personal speech, and students’ rights to wear campaign buttons or distribute written materials have been upheld when the expression is not manifestly disruptive. In controversies over homosexual clubs in Utah schools, the courts are still sorting out the connection between Hazelwood and the Equal Access Act of 1984. The Supreme Court in 1990 cited Hazelwood for the proposition that “schools and school districts retain a significant measure of authority over the type of officially recognized activities in which their students participate,” but the 1984 law arguably requires that if a school opens its facilities to some unofficial student groups, the school may need to accommodate all student groups.
Among Hazelwood s most important results, the Court has removed the bias against institutional authority that required schools to justify their functions as though they were necessary evils rather than agencies of enlightenment. The over-emphasis on constitutional issues in educational law during the 1970s and 1980s created an exaggerated concern with what schools may not do, without clarifying what they may do. First Amendment doctrine is not the primary explanation of why schools exist, and our ability to educate children went into serious decline while, in the years before Hazelwood , courts and educators assumed that it was. The vision of Fraser and Hazelwood that schools should teach “the habits and manners of civility” and other “shared values of a civilized order” reaffirms the broad state authority and responsibility on which public schools have always drawn to teach both personal autonomy and social responsibility. The judicial breakthrough that began in 1986 and 1988 represents a much needed call to restore our original understanding about the duties, responsibilities, and authority of public schools.
Now the schools, with public support, can respond to this opportunity by developing within our young people the intellectual values and skills the First Amendment was designed to protect. To do so, teachers have to intervene constructively in children’s lives, and students must be protected against possible abuses. But unless schools exert enough authority to employ sound educational judgments, little serious education is possible. The courts have not somehow licensed authoritarianism; they have merely recognized that educators, not judges, are best able to determine for children what forms of education will develop mind and character. The courts have finally recognized that the First Amendment is best preserved”is only preserved”when the schools are free to educate.
Bruce C. Hafen is Professor of Law and Provost at Brigham Young University. Jonathan O. Hafen is an associate with Kimball, Parr, Waddoups, Brown & Gee in Salt Lake City.