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By Andrew Stanton
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Justice Samuel Alito pressed the U.S. Supreme Court to revisit a 38‑year‑old precedent governing students’ free‑speech rights in public schools in a new dissent on Monday.
Alito’s statement signals renewed interest in revisiting Hazelwood v. Kuhlmeier, the 1988 decision that gave schools broad authority to regulate student speech in school‑sponsored publications. He warned that lower courts have struggled to understand the limits of the ruling, which has been adjusted by the court in the decades that followed.
Key Takeaways
- Justice Samuel Alito said the Supreme Court should revisit a 38‑year‑old ruling on student speech after the Court refused to hear a case about a teenager blocked from posting anti-Planned Parenthood flyers.
- His warning suggests schools, parents and courts may be relying on unclear rules about what students can and cannot say, raising the risk of more legal fights nationwide.
- Any future Supreme Court rulings on the matter would affect how millions of students express themselves in school.
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What Was the Case About?
The Court on Monday declined to grant certiorari in E.D. ex rel. Duell v. Noblesville School District. It centered around a minor identified only as E.D, who founded a Students for Life club at her high school. Administrators declined to approve flyers at the school because they featured photographs of students with "Defund Planned Parenthood" signs and then revoked the group's recognition.
The posters were rejected for containing political content. Lawyers representing the student wrote in court filings that an "unwritten" rule prohibited photos on club flyers deemed to be political or inappropriate, but that the district did not define the terms.
Plaintiffs asked the court to clarify splits among circuit courts on the Hazelwood ruling.
"An entrenched 3-1-2 circuit split exists over when Hazelwood’s censorship-friendly standard applies. Three circuits—including the court below—apply it to any speech someone might erroneously think the school endorses. One applies it to speech arising from any 'organized and structured educational activity.' Two others get it right: Hazelwood applies only when students engage in school sponsored curricular speech—like in a high school journalism class," the lawyers wrote in a court filing.
John Bursch, senior counsel and director for the Center of Appellate Advocacy at Alliance Defending Freedom, who represented the plaintiffs, agreed with Alito’s dissent in a statement to Newsweek.
“We agree with Justice Alito’s dissent that the Court should have granted the petition to clarify the line between government and student speech," he said. "Public-school officials should not be in the business of censoring student speech that takes place outside the school’s curriculum.”
Why Alito Dissented
Alito, a conservative, issued a dissent, explaining why he believes the court should have heard arguments in the case. It provided the court with a vehicle to revisit the Hazelwood case, which he believes has sowed confusion among lower courts.
"Since Hazelwood was decided, lower courts have struggled to ascertain its precise limits, and in my view, clarification by this Court is in order," he wrote.
The question addressed in the case is "closely related to the question whether expression is ‘government speech’ or private expression," he wrote, adding that the court has "decided a series of cases that addressed the latter question."
"The distinction between private speech and government speech is critical because the Free Speech Clause of the First Amendment constrains censorship of the first category only," he wrote.
He warned that courts must be careful when a government claims speech by private speakers is actually government speech because it can be difficult to know whether the government is using the law "as a subterfuge for favoring certain private speakers over others based on viewpoint.
Read Alito's Full Dissent
AlitoDissent.pdf.PDF
What Is the Hazelwood Decision?
In Hazelwood, the Supreme Court narrowed the First Amendment rights of public‑school students working on school‑sponsored publications. The ruling held that schools may censor student speech in curricular activities, like a journalism class newspaper, when the censorship is "reasonably related to legitimate pedagogical concerns." This created a new test for the Supreme Court and other judges to determine cases involving student speech on public school campuses.
Students in a journalism class in St. Louis wrote in a school-funded newspaper about students’ experiences with teen pregnancy and divorce, but a principal removed the articles without notifying the students.
The students claimed it was unconstitutional, suing on a First Amendment basis. But the Supreme Court found that because the newspaper was part of a graded class and was sponsored the school, the censorship was constitutional.
The Supreme Court gave schools more censorship ability under the Hazelwood standard compared to the standard produced in the 1969 case Tinker v. Des Moines Independent Community School District. In that case, the Court ruled that neither students nor teacher "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" and that a school could not prohibit students from wearing black armbands to protest the Vietnam war.
What to Know About Alito's Background
Alito joined the Supreme Court in 2006 after being nominated by President George W. Bush
Prior to joining the Supreme Court, Alito worked as an assistant U.S. attorney in New Jersey, held senior roles in the Reagan administration—including assistant to the solicitor general and deputy assistant attorney general—and later served as U.S. attorney for the District of New Jersey. In 1990, President George H.W. Bush appointed him to the U.S. Court of Appeals for the Third Circuit, where he developed a reputation as a reliably conservative jurist.
He remains one of the most conservative justices on the Supreme Court.
What Happens Next
The court decided Monday not to revisit it, but Alito's dissent signals that there is some interest among the justices to look at the landmark case, though it's less clear whether other justices are in agreement. No other justices made a public dissent.
Alito has at times urged the court to revisit long-standing precedent.
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