RIVERSIDE — The Supreme Court, in its Hazelwood School District decision last month, defended academic freedom against a lawsuit brought by high school students, but the vote was close and the decision has proved unpopular, especially among those who haven't read it.
On May 13, 1983, two pages were excised from the final issue of Spectrum, the newspaper of Hazelwood East High School near St. Louis. The paper was published every three weeks or so, under the auspices of a journalism class, and was funded for the most part by the school board, which also paid the instructor and provided textbooks and supplies.
It was the job of the instructor to assign and edit stories as well as to determine the size and dates of the publication. The original instructor in the course had taken a job elsewhere, just as his class was preparing this school year's final edition. So a substitute had taken over for him. As was the practice at Hazelwood East, the instructor delivered page proofs for the principal's inspection shortly before the publication date.
The principal objected to the content of two articles. In order to meet what he thought would be the deadline for the last publishing run of the year, the principal consulted with the substitute instructor and then ordered that two whole pages of Spectrum be deleted, on which those two stories were to appear; this meant deleting other stories on those pages, although the principal stated no objection to them.
One article the principal found objectionable concerned divorce. A student had been named along with certain allegations she had made about her father, to which the father had been given no opportunity to respond.
The second article concerned sex among teen-agers. Here the principal had two objections: Although pseudonyms were used, the identities of three pregnant girls were nonetheless identifiable, and might prove embarrassing to them, their families and their boyfriends. Furthermore, the principal felt it inappropriate that this particular treatment of teen-age sex and birth-control appear in a paper also read by younger students. The principal testified he had no objection to other articles on those pages dealing with runaways, juvenile delinquency, teen-age marriage and a general piece on teen-age pregnancy.
Members of the journalism class sued their substitute teacher and the principal, together with the school district, alleging that their First Amendment rights were violated. The Federal District Court turned down the suit. The Eighth Circuit Court of Appeals reversed the District Court's decision. The Supreme Court on Jan. 13 decided for the school district, in a split decision, 5-3.
I applaud the Supreme Court's verdict and its majority opinion. What I find distressing is that three justices voted against the school district. The shrill voice of Justice William J. Brennan Jr.'s dissenting opinion, along with Justices Thurgood Marshall and Harry A. Blackmun who joined with him, does not serve our Constitution well nor education in the classroom. It's a case of crying "fire!" in a crowded theater or, more precisely, a case of crying "wolf!"
Justice Brennan claims that the school principal "violated the First Amendment's prohibitions." And Brennan raises the ugly specter of Orwellian "thought police," accusing the court majority of approving "brutal censorship." Brennan even suggests that the principal should be fired: "Such unthinking contempt for individual rights is intolerable from any state official." Brennan calls it "thought control" and "camouflage(d) viewpoint discrimination," and offers the suggestion that this might lead to "enclaves of totalitarianism" in our public schools.
That a justice on the Supreme Court should write in such a panicked voice while remaining strangely silent on the rights of other individuals involved, such as the castigated father, the pregnant students or even the instructor of the class, makes nonsense out of common sense. It can also make us hard of hearing, when our First Amendment rights are really threatened.
Legally, it was a question whether the Spectrum constituted a public forum, the way a public park or school cafeteria can be. In a 1969 decision, Tinker vs. Des Moines, the court had argued reasonably enough that even on school premises students had their First Amendment rights, just as if they were in a public forum, provided that there was no material disruption, disorder or invasion of the rights of others. The appellate court extended this decision to the Hazelwood case and found that censoring those two articles would have been justified "only if publication of the articles should have resulted in tort liability to the school." The appellate court believed no such liability could have been maintained--assuming all along that teachers could foresee this in this day and age. The appellate court invoked the Tinker precedent to overturn the case.