Unlearning Liberty: Hazelwood at 25

January 6, 2013

Jan. 13 will be Hazelwood’s 25th birthday. If I were sending a card, it would read, "Hazelwood, I wish you had never been born."

Yes, these are harsh words. I’m not usually that nasty, but we’d all be better off without Hazelwood. In fact, I’m proud to say that my disdain for young Hazelwood was immediate, literally beginning the day of birth.

That day was Jan. 13, 1988, when the U.S. Supreme Court announced its decision in Hazelwood School District v. Kuhlmeier. In the quarter-century since, Hazelwood has devastated intellectual freedom in American education.

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.

Responsibility for determining the propriety of classroom speech, concluded the Court, "rests with the school board… rather than with the federal courts." Thus, "school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community." Curriculum decisions, including censorship of students and faculty, need only meet the minimal requirement that they be "reasonable."

The three oldest justices sided with Cathy Kuhlmeier, who brought the case along with other censored student journalists. In a strong dissent, Justice William Brennan, joined by Justices Thurgood Marshall and Harry Blackmun, argued that the majority opinion created an unprecedented "taxonomy of school censorship" and that its rationale, upon rigorous analysis, amounted to "an obscure tangle of three excuses."

But Brennan did not prevail, so Hazelwood required me to revamp the manuscript of my book Children, Education, and the First Amendment, which was published the following year. In the era of Tinker, the First Amendment had genuinely protected intellectual freedom in education. Now I had to be clear that, in educational contexts, the First Amendment does not protect most of what it should.

After 1988, as I anticipated, the news just kept getting worse. Although Hazelwood involved censorship of high school student journalists, the decision has been applied to a broad range of curricular contexts, to teachers as well as students, and to higher education.

The U.S. Supreme Court later reinforced and extended Hazelwood, moreover, by applying its logic to public employees in general. In Garcetti v. Ceballos (2006), it announced that public employees generally do not have First Amendment rights when they are doing their jobs. Lower courts have applied this ruling to teachers at all levels of education.

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.

Unlearning Liberty is a worthy successor to The Shadow University, its 1998 predecessor by Alan Kors and Harvey Silverglate, who co-founded FIRE after writing their book. The Shadow University was in its day the definitive compendium on "politically correct" censorship of speech deemed too offensive for college campuses.

Unlearning Liberty, however, is not a story of feisty conservative students (though there are some here) defending themselves against censorship and indoctrination by liberal professors (though there’s some of that too). This is mostly a story of students, and sometime professors, being censored by administrators for a variety of bureaucratic reasons, including the ultimate sin of scrutinizing and questioning the administration.

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?

No doubt there are other factors also at play. Regardless, FIRE is firing up a new high school curriculum to promote understanding of free speech and the First Amendment. I hope it will be wildly successful.