Hazelwood was nothing less than a license to censor, and many school administrators jumped at the chance to do so, as the mounting requests for legal assistance received by the Student Press Law Center in Arlington, Virginia, attest. But the collegiate press successfully dodged this bullet because, in a footnote, the high court explicitly left open the question of "whether the same degree of deference [to school administrators] is appropriate with respect to school-sponsored expressive activities" at the college level. Relatively few officials at public universities tried to use Hazelwood to interfere in the exercise of students' free press rights, and no federal appeals court considered the question--until now.
In September, the 6th U.S. Circuit Court of Appeals ruled, 2-1, that administrators at Kentucky State University were justified in confiscating and prohibiting distribution of the 1992-94 student-produced yearbook, The Thorobred. The majority relied on Hazelwood to support its finding, but provided no explanation for its conclusion that the Supreme Court intended that case to apply to the collegiate press.
Former yearbook Editor Capri Coffer and student Charles Kincaid have petitioned for a rehearing, says their lawyer, Bruce Orwin.
The Supreme Court's reasoning in Hazelwood turned on several factors that would seem to have limited applicability to publications produced by university students. The court emphasized that the student newspapers censored in that case were produced as part of a credit-bearing course, taught by a faculty member, and therefore subject to tighter restraints in the interest of improving style and content. The court also cited concerns about the "emotional maturity" of the intended audience, hinting, for example, that younger students might be upset if an elementary school newspaper suggested that Santa Claus doesn't really exist.
But the most important element of the Hazelwood decision was the Supreme Court's finding that a school-sponsored newspaper, produced as a "supervised learning experience for journalism students," is not a "public forum" open to all viewpoints and opinions. Instead, the court said, "a school must be able to set high standards for student speech that is disseminated under its auspices."
And so it was that the KSU administrators made their case for applying Hazelwood to The Thorobred. When the yearbooks arrived, Betty Gibson, who was vice president for student affairs, didn't like them. She didn't like the purple cover. She didn't like the "vague" theme and title, "Kentucky State: Destination Unknown." And she didn't like the inclusion of photos of current events, presumably at the expense of campus activities. Pointing out that the yearbook was published on campus and partially funded by a mandatory student activities fee, she argued that The Thorobred was a school-sponsored publication.
Citing some ambiguous language in the KSU student handbook about whether the yearbook was an official organ of the university, Gibson argued, and the appeals court agreed, that the book wasn't a public forum. Even though it was the work of a single editor, not a class, and the Student Publications Board hadn't exercised its nominal authority to oversee production, the court said those factors failed to create the kind of "public forum" that would have been granted broad First Amendment protection.
The university had intended that The Thorobred provide a record of school activities and enhance the image of the school. When the 1992-94 edition failed to do that, school officials were entitled to confiscate it, the court majority ruled.
Dissenting Judge R. Guy Cole Jr. rejected the majority's unexplained adoption of Hazelwood, but was even more disturbed by its declaration that The Thorobred wasn't a public forum. At the least, Cole wrote, it was a limited forum, and speech in such a setting can be censored only to advance a compelling state interest.
September's decision plays into the hands of administrators who would like to turn student publications into public relations brochures. Although it is understandable that a college would like to show its best face to the community, that's not an appropriate goal for the scholastic press.
More than 10 years ago, the Supreme Court fired a shot across the bow of the good ship "Scholastic Journalism," when it handed down its 5-3 decision in Hazelwood School District vs. Kuhlmeier. The majority ruled that public elementary and secondary school administrators may regulate the style and content of student expression, including school newspapers, provided the expression is sponsored by the school and the censorship is reasonably related to "legitimate pedagogical concerns."