INTRODUCTION :: Nearly twenty years ago in Hazelwood School District v. Kuhlmeier, the Supreme Court, in upholding the constitutionality of a public high school principal’s censorship of a student newspaper produced in a journalism class, held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Since then, Hazelwood’s “reasonably related to legitimate pedagogical concerns” standard has been invoked in a tremendous array of school speech cases. Courts have not only applied it in a wide variety of student speech contexts but have also relied on it in cases involving public schools’ textbook selections and curricular choices, teachers’ in-class speech, and even speech in a school setting by outside entities (such as recruiters and advertisers).
In the process, two major circuit splits have developed. First, the circuits have divided over the extent of Hazelwood’s reach, particularly whether Hazelwood applies to a teacher’s classroom speech. Second, a sharp split has developed over whether Hazelwood goes so far as to permit viewpoint-based speech restrictions, which are generally prohibited under the First Amendment. Both of these questions have given rise to rich parallel lines of scholarship. The two issues, however, are rarely considered in tandem.
This Article argues that these two issues are related in a critical, yet largely unexamined way: the extension of Hazelwood beyond the student speech context has severely muddled the question whether Hazelwood permits viewpoint-based speech restrictions. Indeed, three of the five circuits to explicitly address whether Hazelwood permits viewpoint discrimination did so in cases that did not even involve student speech. Moreover, the varying speech contexts in which the circuits have first confronted this question have led to divergent results. The First Circuit, for instance, first addressed the viewpoint discrimination issue in a teacher speech case. The court applied Hazelwood’s standard and concluded that it generally permitted viewpoint discrimination. On the other hand, the Ninth and Eleventh Circuits both first reached the question in cases addressing speech by outside entities-respectively yearbook advertisers and recruiters at a career fair. These courts applied Hazelwood’s standard and concluded that it generally forbade viewpoint discrimination. This divergent result is not a coincidence. Rather, the significantly different interests implicated by teacher speech and outside-entity speech directly contributed to these conflicting interpretations of Hazelwood. In short, Hazelwood has been pulled in so many directions that its underlying standard has lost coherence.
This Article argues that this conundrum can be untangled by returning to Hazelwood’s core as a student speech case. It first argues that Hazelwood’s reach has been significantly overextended and that it should be applied only in student speech cases. Hazelwood was a student speech case, and its rationale and approach are uniquely suited to that context.
Removing these other categories of speech from the Hazelwood equation, in turn, sheds light on the persistent debate over whether Hazelwood permits not only content- based discrimination but also viewpoint-based discrimination. In other words, resolving the circuit split over Hazelwood’s reach helps to resolve the circuit split over whether Hazelwood permits viewpoint-related speech restrictions. Once we return to Hazelwood’s student speech origins and to the text of Hazelwood itself, it becomes relatively clear that Hazelwood contemplated permitting viewpoint-based restrictions on student speech in certain circumstances-a position implicitly supported by the Supreme Court’s recent decision in Morse v. Frederick. The real question is not whether Hazelwood permits viewpoint discrimination, but when.
Answering this question requires a more nuanced analysis of two issues. First, what does it mean for student speech to occur in a “school-sponsored” context, such that, as the Hazelwood Court put it, “students, parents, and other members of the public might reasonably perceive [the speech] to bear the imprimatur of the school”? Second, which types of restrictions on student speech are “reasonably related to legitimate pedagogical concerns”? I argue that the courts should adopt a sliding-scale approach that weighs the level of school sponsorship against the nature of and justification for the speech restriction. When the perception of school sponsorship is highest-because the student speech at issue will affect other students’ learning experiences or permanently transform the physical appearance of the school-a school should have broad latitude to restrict the speech even if the restrictions are viewpoint based. In contrast, when the perception of school sponsorship is lower-because the student speech, despite its occurrence in a school-sponsored context, is clearly attributable to a particular student and will transform neither other students’ learning experiences nor the permanent appearance of the school-any viewpoint-based restrictions imposed by the school should be more rigorously scrutinized.
The Article begins by discussing the Hazelwood decision in depth. It then discusses the various contexts in which courts have applied Hazelwood and the circuit split that has developed over how broadly Hazelwood should reach. Next, it describes the circuit split over whether Hazelwood permits viewpoint-based speech restrictions, highlighting the different speech contexts in which the circuits have reached divergent conclusions. The Article then argues that the overextension of Hazelwood links the two splits. This Part also discusses why Hazelwood is uniquely suited to the student speech context and why other doctrines-namely, the Pickering-Connick framework for teachers’ classroom speech and basic public forum analysis for outside entities’ speech-are better suited to analyze school-speech restrictions of nonstudents. To support this position, this Article draws upon the Supreme Court’s recent decision in Garcetti v. Ceballos. Finally, having returned to Hazelwood’s core as a doctrine governing student speech, the Article proposes a sliding-scale approach that courts should use to evaluate viewpoint-based restrictions on student speech.