Unlearning Liberty cover
David Moshman on ‘Unlearning Liberty’ and 25 Years of ‘Hazelwood’

By January 9, 2013

Writing in The Huffington Post, University of Nebraska professor (and free speech advocate) David Moshman looks back at the 25 years since the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Court held that educators at the high school level do not violate the First Amendment when they regulate student speech and expression “in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273.

Hazelwood, as Moshman writes, marked a significant departure from the Court’s previously friendly jurisprudence toward student and faculty speech rights:

In 1988, American students and teachers at all levels of education had enjoyed 19 years of strong First Amendment protection since the Supreme Court’s 1969 ruling in Tinker v. Des Moines that “neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” They shed those rights, the Court now ruled in Hazelwood, at the classroom door.

Tinker, ruled the Hazelwood Court in a 5-3 decision, applies only to “personal expression that happens to occur on the school premises.” In a major victory for government power and administrative discretion, the court placed the curriculum, and all associated speech, largely beyond the scope of the First Amendment.

We at FIRE, of course, are more than aware of the negative impact Hazelwood has had on speech rights in the educational context, due to the fact that its holding has been translated by some courts from the secondary school setting to colleges and universities, and from purely curricular speech to non-curricular student expression. For instance, we railed against the United States Court of Appeals for the Seventh Circuit’s application of Hazelwood to shortchange the expressive rights of student journalists at Governors State University in Illinois in 2005. We issued a policy statement against the Seventh Circuit’s misapplication of Hazelwood and submitted an amicus curiae brief to the Supreme Court urging it to reverse the decision (sadly, the Court did not take the case). In the years since, we have continued to monitor the damage caused by Hazelwood.

Moshman, however, poses a different question: how has Hazelwood impacted students’ own understanding of, and attitudes toward, their free speech rights? On this extra-legal question, he discusses the lessons of FIRE President Greg Lukianoff’s book, Unlearning Liberty: Campus Censorship and the End of American Debate:

Where are we 25 years later? In Unlearning Liberty: Campus Censorship and the End of American Debate, Greg Lukianoff proposes that we are losing the hard-won insights of liberty. As president of FIRE, the Foundation for Individual Rights in Education, Lukianoff draws on more than a decade of experience defending free expression and due process for college students and faculty.

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Most of all, this is a story of student passivity in the face of appalling restrictions on liberty. Student responses to blatant acts of censorship, it appears, are typically some variant of “whatever,” as in “whatever the administration deems proper.”

Is that what the Supreme Court deems proper? Reading Lukianoff’s accounts of student silence and apathy, I have to wonder if this is the work of my old nemesis. Are these students the progeny of Hazelwood?

These are truly important, thought-provoking questions, ones in which we will continue to engage as we enter a new year. Be sure to read Moshman’s entire piece for his excellent take.