Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

At the end of each year, the English Department at the High School publishes “The Light,” an anthology of poetry written by our students. Teachers can nominate particularly good student work, and students can submit work themselves for publication. A small group of teachers reads the submissions and chooses the “best” poetry for inclusion in the anthology. I say “best” in quotations because one of the poems that was included has caused a firestorm on social media. I am no tender flower, but the poem in question made even me uneasy in its quite graphic depiction of a sexual encounter between two students. Now, the Internet is blowing up with parental and community outrage that we would have published this poem in a school anthology.

I talked to the members of the selection committee, and they sheepishly agreed that they wondered whether the poem was appropriate for a school publication. After some debate, however, they agreed that the poem has substantial artistic merit, and they felt that they could not censor this student’s poem because the student has free speech rights.

I know that the United States Supreme Court has provided some guidelines for addressing student speech in its decisions in Hazelwood School District v. Kuhlmeier (1988) and Bethel School District No. 403 v. Fraser (1986). However, I don’t know where we can draw the line in telling a student that her poem won’t be included in the anthology despite, in the eyes of some, its artistic merit. Help!

Thank you,
What’s Art Anyway

Dear What:

Take heart that the school year is over and soon so too will be the furor over the poem. In the interim, Legal Mailbag is here to help, though your prior knowledge of the Hazelwood and Fraser cases makes me wonder if you really need help. In any event, let us briefly review those decisions for the general reader so that we can all understand why those teachers had every right to refuse to include the offending poem in the publication (and should have).

Any discussion of student free speech rights perforce starts with Tinker v. Des Moines Independent School District (1969), where the United States Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Under Tinker, school officials may regulate individual student speech in school only if they reasonably forecast material disruption or substantial interference with the educational process, or invasion of the rights of others.

By contrast, in 1986 the Court ruled that school officials do not have to tolerate vulgar speech by students in school, irrespective of whether such vulgarity causes a disruption. In the Fraser case, a student was suspended for three days after making a vulgar speech at a school assembly (Google it if you want). The lower courts relied on Tinker and ruled, absent disruption, the suspension violated the student’s free speech rights. However, the United States Supreme Court reversed and in Fraser created the first exception to the Tinker rule: students have no free speech right to be vulgar in school because school is a place for students to learn about decorum.

Two years later, the Court created the second exception to the Tinker rule in a case involving a challenge by student editors of the school newspaper over what they claimed was censorship in violation of the First Amendment. Hazelwood School District v. Kuhlmeier (1988). There, the principal spiked stories on teen pregnancy and children of divorce, and the lower courts held that that action violated the free speech rights of the student editors. However, the Court again reversed, holding that school administrators may regulate student speech in school-sponsored activities (such as the school newspaper) as long as they have a “legitimate pedagogical interest” in doing so. Given the potential for embarrassment of students and for violating their privacy interests if the stories had been published, the Court ruled that, in killing the stories, the school administrators had acted within their authority and had not violated the First Amendment rights of the students.

The Hazelwood rule has since become the guide in considering student free speech rights in school-sponsored events, such as the school play, the school newspaper and even books in the curriculum or library. Given that the anthology in question was school-sponsored, the Hazelwood rule applies to your situation. You (and the clueless selection committee) had the right to refuse to publish the poem. Here, the selection committee had more than ample pedagogical concern that including such a poem in the anthology would divert attention from the purpose of the anthology – to celebrate student work. Even if the student who wrote the poem is eighteen years of age, the anthology was for all ages, and the courts have been tolerant of school officials’ efforts to keep sexual matters out of school publications and events.

Do tell me that you wrote up the teachers on the selection committee for their poor judgment . . . .