Introduction

Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.

                                                                Thomas Jefferson[1]

The concept of free speech has always been one of the foundations of our government.[2] The First Amendment provides in part: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”[3] The Supreme Court has designated three categories for purposes of First Amendment consideration, based on where the speech at issue took place: (1) public forums, (2) limited public forums, and (3) nonpublic forums.[4] In all three of these categories, including nonpublic forums, the government may only place restrictions on speech that have a neutral objective.[5]

In Hazelwood School District v. Kuhlmeier,[6] the Supreme Court considered the appropriate standard for First Amendment analysis in the context of school regulation of a student newspaper in a public high school.[7] Subsequently, some circuit courts of appeals have found that the decision in Hazelwood created a new subset of nonpublic forums that do not require viewpoint neutrality.[8] Other circuits, however, have found that the requirement of viewpoint neutrality that applies generally to governmental restrictions of speech in nonpublic forums also applies in the context of school-sponsored nonpublic forums.[9] This split in the circuit courts presents a significant difference in interpretation of First Amendment law that can only be resolved by a future decision of the Supreme Court.[10]

Part I of this Note will discuss Supreme Court cases relevant to the issue of viewpoint neutrality as a requirement for restriction of free speech in public schools.[11] Part II will discuss the Supreme Court’s 1988 decision in Hazelwood.[12] Part III will discuss the cases forming a split in the circuit courts since Hazelwood.[13] Additionally, Part III will discuss the developing trend toward interpreting Hazelwood as creating a new subset of nonpublic forums for school-sponsored activity where viewpoint neutrality is no longer required.[14] Finally, Part IV will demonstrate that the Supreme Court decisions in Hazelwood and Perry Education Association v. Perry Local Educators’ Association[15] did not intend to abandon the viewpoint neutrality requirement.[16] Accordingly, this Note concludes that the decisions of those circuit courts of appeal that have not required viewpoint neutrality as a constitutional imperative in this context are wrongly decided.[17]

I.  Supreme Court Cases Involving Free Speech in Public Schools

A.  Tinker v. Des Moines Independent Community School District[18]

In Tinker v. Des Moines Independent Community School District, school officials suspended three students who wore black armbands to school to protest the Vietnam War.[19] The school suspended the students pursuant to a policy the school had recently implemented.[20] School officials specifically adopted the policy when they learned of the students’ plan to wear armbands to school.[21]

The Court noted that activities such as wearing armbands are symbolic acts that should be entitled to broad protection under the Free Speech Clause of the First Amendment of the United States Constitution.[22] In an oft-quoted passage, the Court stated that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[23]  Although the Court acknowledged that school officials are entitled to broad discretion in order to maintain control in schools, it recognized that such discretion must be balanced against the rights granted by the Constitution.[24] The Court held that public school officials may not prohibit conduct protected by the First Amendment without showing that the conduct would “‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’”[25] Because school officials presented no evidence that the wearing of armbands in this case had caused any disruption whatsoever, the Court found that the students’ activity was protected and therefore that their suspensions violated the First Amendment.[26]

Significantly, the Court also noted that the rule did not prohibit all political symbols, but only the armbands that students wore in order to protest the Vietnam War.[27] In an early showing of its requirement of viewpoint neutrality, the Court stated that the Constitution does not permit school officials to disallow a particular opinion without a showing of substantial interference with discipline.[28]

B.  Perry Education Association v. Perry Local Educators’ Association[29]

    In Perry Education Ass’n v. Perry Local Educators’ Ass’n, a teachers union brought suit claiming First Amendment violations because the school district had granted the incumbent union exclusive access to the district’s interschool mail system.[30] Perry Education Association (“PEA”) was the exclusive bargaining representative of the teachers.[31] Perry Local Educators’ Association (“PLEA”) was a rival union that had formerly enjoyed access to the mail system, but was denied access by the terms of the collective bargaining agreement between the Board of Education and PEA.[32]

    Justice White, writing for the majority, first discussed the three classifications of forums for First Amendment analysis and found the interschool mail system to be a nonpublic forum.[33] Justice White stated that school officials could impose restrictions in these forums as long as they were reasonable and viewpoint neutral.[34] The Court held that the school district had not violated PLEA’s First Amendment rights because the district’s restriction in this case was reasonable and not intended to suppress any particular viewpoint.[35]

Justice Brennan, writing in dissent, voiced concerns about the way the majority had applied the viewpoint neutrality requirement.[36] He believed that denial of access to the mail system to one union while allowing it to another was tantamount to viewpoint discrimination.[37] In Justice Brennan’s view, the majority merely focused on the forum analysis and completely disregarded the general prohibition on viewpoint discrimination, no matter what the forum.[38]

Justice White disagreed with Justice Brennan’s conclusion that the Court had abandoned the viewpoint neutrality requirement.[39] The majority found that the policy did not discriminate based on viewpoint but rather on the status of the union as the teachers’ exclusive bargaining representative.[40] The Court applied forum analysis to determine the appropriate First Amendment standard because the Court found that the school district had not engaged in viewpoint discrimination.[41]

C.  Bethel School District No. 403 v. Fraser[42]

In Bethel School District No. 403 v. Fraser, a high school student, Fraser, gave a sexually suggestive speech nominating another student for student office.[43] School officials determined that the speech violated a disciplinary rule against use of obscene language.[44] Accordingly, the school suspended the speaker for three days and removed his name from a list of potential graduation speakers.[45] The Court distinguished the disruptive nature of Fraser’s speech from the “nondisruptive, passive expression of a political viewpoint” that it had held constitutionally protected in Tinker.[46] The Court also noted that the rights of public school students are not necessarily coextensive with the rights of adults under other circumstances.[47] The Court observed that the regulation of vulgar or offensive language is part of the role of schools in instilling fundamental values in children.[48] Therefore, the Court held that the First Amendment does not prevent school officials from restricting students’ use of vulgar or indecent speech.[49]

II.   Hazelwood School District v. Kuhlmeier[50]

    In Hazelwood, student staff members of the school newspaper sued after their principal rejected two proposed pages of an issue of the paper, which contained two articles the principal found inappropriate for circulation.[51] Because he believed there was inadequate time to amend the issue of the newspaper and still distribute it before the end of the school year, the principal removed two entire pages which included the objectionable articles.[52]

The United States District Court for the Eastern District of Missouri found that school officials had not violated the students’ First Amendment rights.[53] Under the standard that the district court applied, the principal’s actions in deleting the two newspaper pages were “legitimate and reasonable” in light of the need to protect the privacy of the pregnant students and to ensure journalistic fairness in the case of the divorced father.[54]

The Eighth Circuit reversed, concluding that school officials had violated the student journalists’ First Amendment rights.[55] According to the Eighth Circuit, the school newspaper was a public forum in which the views of student journalists were protected from school official censorship under the standard announced by the Supreme Court in Tinker.[56] Thus, under the Eighth Circuit’s view, the deletion of the two pages violated the First Amendment because the principal had failed to demonstrate that publication of the two deleted newspaper pages would result in any material or substantial disruption to schoolwork or discipline.[57]

The Supreme Court reversed the Eighth Circuit Court of Appeals’ decision, specifically rejecting the court’s finding that the school newspaper was a public forum to which the Tinker standard applied.[58] Instead, after analyzing the policy and practice of the school in publishing the newspaper, the Court designated the newspaper as a school-sponsored, nonpublic forum.[59] The Court determined that the standard that it had announced in Perry for nonpublic forums applied.[60] Under that standard, “school officials were entitled to regulate the contents of [the newspaper] in any reasonable manner.”[61] The Court specifically held that the Tinker standard did not apply in these situations but rather that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”[62]

The Court emphasized the deference that courts should grant school officials in their decision-making, because school officials, teachers, and parents, rather than federal judges, are responsible for education.[63] Accordingly, the Court held that the principal’s actions in removing the questionable articles did not violate the students’ First Amendment rights because the principal based those actions on legitimate and reasonable pedagogical concerns.[64]

In formulating the Hazelwood standard for analyzing restrictions on school-sponsored expressive activities, Justice Byron White, writing for the majority, relied upon his earlier majority opinion in Perry.[65] Justice White found the principal in Hazelwood could permissibly regulate the school newspaper “in any reasonable manner,”[66] just as he had concluded that the school district in Perry could properly reserve its school mail system “for its intended purposes . . . as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”[67]

Justice Brennan wrote a dissenting opinion in Hazelwood, as he had in Perry.[68] Justice Brennan criticized the majority for abandoning the Tinker standard and announcing a new standard for school-sponsored speech.[69] Justice Brennan believed that the majority’s standard would allow school administrators to discriminate against a particular viewpoint under the guise of furthering a legitimate pedagogical concern.[70]

Justice White, in his majority opinion in Hazelwood, failed to reiterate that reasonable restrictions must be viewpoint neutral, as he had earlier expressed in the above passage from Perry.[71] As this Note explores, the absence of an affirmative restatement in Hazelwood of the continuing vitality of this fundamental viewpoint neutrality requirement has led to substantial disagreement among the circuit courts and uncertainty in an important area of First Amendment law.[72]

III.   The Split Among the Circuit Courts

A.  The Eleventh Circuit: Searcey v. Harris[73]

In Searcey v. Harris, the Eleventh Circuit considered whether, in light of the Supreme Court’s decision in Hazelwood, viewpoint neutrality remained a requirement when school officials sought to regulate school-sponsored speech.[74] In Searcey, the Atlanta School Board (“Board”) prohibited the Atlanta Peace Alliance (“APA”) from participating in two programs intended to motivate students and inform them of possible career paths.[75] Additionally, the Board prohibited the APA from placing information on bulletin boards or in guidance counselors’ offices.[76] The school had granted this access to military recruiters.[77] The APA claimed that the Board had violated its First Amendment rights, arguing that the preference for pro-military and anti-APA speech was unconstitutional viewpoint discrimination.[78]

The court analyzed Hazelwood in response to an argument by the Board that Hazelwood had changed the standard that courts should apply in cases involving curricular decisions of school officials.[79] The Eleventh Circuit decision concluded that the Supreme Court intended to “distinguish [Hazelwood] from Tinker and justify the application of the Cornelius standard” rather than to set a new standard for such cases.[80]

The Eleventh Circuit court in Searcey explicitly rejected the School Board’s argument that the Supreme Court intended to remove the requirement of viewpoint neutrality.[81] The court interpreted Hazelwood as allowing a government entity to discriminate on the basis of content but not viewpoint.[82] The court expressed its intention to continue requiring viewpoint neutrality.[83]

The court held that the Board engaged in viewpoint discrimination in violation of the First Amendment when it restricted the APA’s access to the programs because it disagreed with the APA’s views on the military.[84]

B.  The Ninth Circuit: Planned Parenthood of Southern Nevada, Inc. v. Clark County School District[85]

In Planned Parenthood of Southern Nevada, Inc. v. Clark County School District, the Ninth Circuit held that the First Amendment required viewpoint neutrality when school officials restricted speech in school-sponsored activities.[86] In that case, certain schools refused to publish Planned Parenthood’s advertisements in school newspapers, yearbooks, and programs for school sports events, although the schools generally allowed advertising in these publications.[87] Planned Parenthood claimed that the schools’ refusal to publish Planned Parenthood’s advertisements violated the First Amendment.[88]

As in Hazelwood, the court in Planned Parenthood found that the school publications were nonpublic forums.[89] The court recognized that Hazelwood granted school authorities broad discretion in their regulation of school-sponsored speech but made no distinction between school-sponsored speech and speech in other nonpublic forums in terms of the viewpoint neutrality requirement.[90] Therefore, the court concluded that the Cornelius standards would apply and any restrictions would have to be viewpoint neutral.[91]

The court specifically stated that it would not overrule its alternative holding in an earlier case that viewpoint discrimination was impermissible in school-sponsored nonpublic forums.[92] The court held that the schools did not violate the First Amendment because the schools did not engage in viewpoint discrimination when they refused to publish Planned Parenthood’s advertisements.[93]

A later decision of the Ninth Circuit Court of Appeals, Downs v. Los Angeles Unified School District,[94] demonstrated the court’s reluctance to uphold the requirement of viewpoint neutrality.[95] Downs did not involve the issue of viewpoint neutrality and thus did not overrule Planned Parenthood, but the court criticized its earlier decision: “Despite the absence of express ‘viewpoint neutrality’ discussion anywhere in Hazelwood, the Planned Parenthood court incorporated ‘viewpoint neutrality’ analysis into nonpublic forum, school-sponsored speech cases in our Circuit.”[96] However, the court did indicate that it would continue to apply its earlier interpretation of Hazelwood to school sponsored, nonpublic forum cases.[97]

C. The Sixth Circuit: Kincaid v. Gibson[98]

In Kincaid v. Gibson, the Sixth Circuit Court of Appeals interpreted Hazelwood to allow school officials to impose reasonable, viewpoint-neutral restrictions on student speech in nonpublic forums.[99] In Kincaid, the Vice-President of Student Affairs of Kentucky State University refused to distribute finished copies of the school yearbook, which she felt was not of sufficient quality.[100] The student publishers alleged that the Vice-President of Student Affairs’ true reason for refusing to distribute the yearbook was that she disagreed with the chosen theme, and that her actions were therefore viewpoint discriminatory.[101]

The court made clear that it believed the general standard which requires viewpoint-neutral restrictions in nonpublic forums is just as applicable in a school setting as it is in other nonpublic forums.[102] However, in accordance with Hazelwood, the court gave substantial deference to the school official’s decision, which the court believed was reasonable in light of the poor quality of the yearbook.[103] Therefore, the court found no First Amendment violation.[104]

The court later vacated its decision upon rehearing en banc, deciding that Hazelwood did not apply because the yearbook was a limited public forum.[105] Although the court stated that a state can contitutionally place reasonable restrictions on speech in nonpublic forums as long as the restrictions are viewpoint neutral, the standard that the Supreme Court had announced in Cornelius,[106] the court’s statement was merely dicta.[107] Therefore, the Sixth Circuit Court of Appeals has not indicated that it will continue to require viewpoint neutrality in subsequent cases.

D.  The Third Circuit: C.H. ex rel. Z.H. v. Oliva[108]

The Third Circuit weighed in on the issue of viewpoint neutrality post-Hazelwood in C.H. ex rel. Z.H. v. Oliva, which dealt with two separate events, both of which involved First Amendment considerations.[109] When Z.H. was in kindergarten, employees of the school he attended removed from a wall a poster Z.H. had made as part of a Thanksgiving project.[110] School officials permitted posters created by other students to remain.[111] The subject of the poster was to be something for which the student was thankful.[112] Z.H.’s poster showed that he was thankful for Jesus.[113] An unknown school employee removed the poster from the wall because of its religious theme.[114] When Z.H.’s teacher returned the next day, she replaced his poster on the wall with the other posters, but in a less prominent location.[115]

The second event occurred when Z.H. was in the first grade.[116] Students who had performed well on reading assignments were allowed to bring in a favorite story to read to the class.[117] Z.H. brought in a book called The Beginner’s Bible: Timeless Children’s Stories and wanted to read a story called A Big Family, which was based on Genesis 29:1-33:20.[118] Z.H.’s teacher refused to let him read the story to the class because of its religious theme.[119]

For the first time, a circuit court unequivocally held that Hazelwood did not require viewpoint neutrality: “Hazelwood clearly stands for the proposition that educators may impose non-viewpoint neutral restrictions on the content of student speech in school-sponsored expressive activities so long as those restrictions are reasonably related to legitimate pedagogical concerns.”[120] Drawing from examples the Court gave in Hazelwood of the types of permissible speech restrictions,[121] the Third Circuit concluded that a viewpoint-based restriction on student speech could be “reasonably related to legitimate pedagogical concerns” and, therefore, the Supreme Court had sanctioned at least some types of viewpoint discrimination.[122]

The Third Circuit equated school-sponsored speech with speech by the school itself and therefore concluded that, as in cases of regulation of the State’s own speech, viewpoint neutrality “is neither necessary nor appropriate.”[123]

Finding that each event had occurred in a nonpublic forum and that legitimate pedagogical concerns had been involved, the court held that Z.H.’s First Amendment rights had not been violated.[124]

The court vacated this opinion for rehearing en banc.[125] In its subsequent opinion, the court refused to address the constitutional question, so the Third Circuit Court of Appeals has not indicated whether it will allow viewpoint discrimination in future school-sponsored, nonpublic forum cases.[126]

E.  The First Circuit: Ward v. Hickey[127]

In Ward v. Hickey, a school committee did not reappoint a non-tenured biology teacher.[128] The reappointment would have given the teacher tenure.[129] The teacher alleged that three members of the committee voted against her because they disapproved of discussions about abortion that she had led in her classes.[130] The teacher alleged that such denial of tenure based upon the views expressed in her classroom discussions violated her First Amendment rights.[131]

The First Circuit found that, while school-sponsored speech restrictions must be reasonable and be “reasonably related to legitimate pedagogical concerns,” Hazelwood did not require school officials to be viewpoint neutral when restricting school-sponsored speech.[132] The court noted that, although the Court in Hazelwood had discussed the standard of viewpoint neutrality from Perry, the Court had not incorporated that standard into its holding.[133]

F.  The Tenth Circuit: Fleming v. Jefferson County School District R-1[134]

The most recent circuit court decision to address viewpoint neutrality in the regulation of school-sponsored speech is from the Tenth Circuit, Fleming v. Jefferson County School District R-1.[135] The decision in Fleming provides the most detailed analysis to date of the impact of Hazelwood.[136] Fleming involved an art project at Columbine High School that school officials developed in response to the 1999 shootings at the school.[137] The school invited students and members of the community to decorate four-inch square tiles that the school would use to decorate its hallways.[138] School officials did not intend the project to become a memorial, so they placed certain restrictions on how the students could decorate the tiles.[139] Among the restrictions imposed were “‘no references to the attack, to the date of the attack . . . no names or initials of students, no Columbine ribbons, no religious symbols, and nothing obscene or offensive.’”[140]

Certain participants in the project, including the parents of Columbine student victims, sought to have tiles bearing religious messages and symbols, names of victims, and other prohibited expressions included in the project.[141] In response to their complaints, restrictions were relaxed to allow children’s names and initials (including those of Columbine victims), the Columbine ribbon, and dates other than the date of the shooting, but the other restrictions remained in place.[142] When school officials refused to make further accommodations to permit the prohibited messages, certain parents of Columbine victims and others sued for violation of their First Amendment rights because the school had refused to include in the project tiles decorated as they desired.[143]

The Tenth Circuit Court of Appeals determined that the tile project would qualify as school-sponsored speech and proceeded to an analysis of Hazelwood.[144] The Tenth Circuit reasoned that “[i]f Hazelwood required viewpoint neutrality, then it would essentially provide the same analysis as under a traditional nonpublic forum case: the restriction must be reasonable in light of its purpose (a legitimate pedagogical concern) and must be viewpoint neutral.”[145] According to the Tenth Circuit, because the Supreme Court had stressed the unique aspect of cases involving speech in schools,[146] there would have been no point in deciding Hazelwood merely to repeat the existing standard for analysis of speech restrictions in nonpublic forums.[147] Therefore, the Tenth Circuit concluded that the Supreme Court had intended to create an exception to viewpoint neutrality in Hazelwood that applies to school-sponsored speech.[148]

After analyzing the split in the other circuit courts, the Tenth Circuit decided that Hazelwood did not require viewpoint neutrality on the part of school officials when limiting school-sponsored speech.[149] The court emphasized that Hazelwood made no specific mention of the viewpoint neutrality requirement, even though the Supreme Court’s previous decision in Cornelius presented the standard for nonpublic forums.[150] The court stated that the reasons that the Supreme Court gave in Hazelwood for granting school officials deference in placing restrictions on such speech implicitly allowed school officials to make viewpoint-based judgments.[151]

The court found that the school’s restrictions were “reasonably related to legitimate pedagogical concerns” and therefore did not violate the First Amendment.[152]

IV. Discussion

Prior to the decision in Hazelwood, the Supreme Court had uniformly decided that in traditional nonpublic forums, state speech restrictions must be viewpoint neutral.[153] Although the Supreme Court in Hazelwood announced a new standard for courts to apply to school-sponsored activities in nonpublic forums, it said nothing about abandoning the viewpoint neutrality standard that courts had consistently applied to these forums in general.[154]

Some circuit courts have read the majority opinion in Hazelwood as somehow crafting a category of speech that no longer enjoys First Amendment protection from viewpoint discrimination.[155] Those courts have both misapplied the dramatically more limited intent of the Supreme Court and created a haven for unconstitutional state regulation of speech that would enjoy protection in other contexts.[156] Perhaps unwittingly, the courts in these circuits have brought to reality the merely theoretical concerns expressed by Justice Brennan in his dissents in Hazelwood and in Perry.[157]

Justice Brennan dissented in Perry because he believed that Justice White’s majority opinion “disregard[ed] the First Amendment’s central proscription against censorship, in the form of viewpoint discrimination, in any forum, public or nonpublic.”[158] In moving away from the Tinker standard for speech in nonpublic, school-based forums, Justice Brennan feared the Supreme Court had effectively sanctioned viewpoint discrimination.[159]

Mindful of Justice Brennan’s critique, Justice White specifically addressed the facts on which the majority relied when rejecting the argument that viewpoint discrimination was present in Perry.[160] The standard that Justice White articuled in Perry expressly mandated viewpoint neutrality.[161] Therefore, the majority’s decision turned on an analysis of the particular facts involved in the case, rather than whether viewpoint neutrality remained constitutionally required.[162] Perry demands viewpoint neutrality, even if the regulation of speech is otherwise “reasonable.”[163]

Justice Brennan’s dissenting opinion lamented the majority’s failure to apply the standard from Tinker to the regulated speech.[164] As he had found five years earlier in Perry, Justice Brennan again concluded that the majority’s adoption of a “reasonableness” standard for regulation of school-sponsored speech constituted “unconstitutional viewpoint discrimination.”[165] While the majority in Hazelwood did not expressly condone viewpoint discrimination, Justice Brennan found it present again in Hazelwood, just as he found it in Perry: “It is . . . likely that the objectionable article was objectionable because of the viewpoint it expressed . . . .”[166] Justice Brennan did not support the adoption of the “reasonableness” standard in Hazelwood for precisely the reasons that he did not join the majority opinion in Perry.[167] In his view, allowing a state official “boundless discretion” to regulate even school-sponsored speech effectively endorses “brutal censorship” of particular viewpoints,[168] regardless of whether the regulation is “reasonably related to legitimate pedagogical concerns.”[169]

Having dismissed Justice Brennan’s viewpoint discrimination arguments in Perry only a few years earlier,[170] Justice White did not need to address Justice Brennan’s points again in Hazelwood.[171] Understandably, Justice White and the majority did not debate again whether the “reasonableness” standard the Supreme Court announced in Perry and incorporated in Hazelwood effectively served as a proxy for sponsorship of unconstitutional viewpoint discrimination.[172] The majority had already considered and rejected Justice Brennan’s concerns in Perry.[173] Because the evidence in Hazelwood established the principal’s viewpoint neutrality with respect to the subjects generally addressed in the deleted articles,[174] the majority opinion focused on the application of Perry’s “reasonableness” standard rather than the irrelevancy of viewpoint neutrality.[175] The Supreme Court’s failure to reiterate the part of the Perry standard not implicated by the facts of Hazelwood does not justify the deletion of the viewpoint neutrality requirement, yet courts have done exactly that.[176]

While the first circuit courts to interpret Hazelwood continued to require viewpoint neutrality in speech restrictions in nonpublic forums, as Perry and Cornelius required, the more recent trend, as exemplified by Fleming, has been to infer an exception to this rule for school-sponsored speech.[177]

Remarkably, courts have inferred an “exception” in Hazelwood to the general requirement of viewpoint neutrality despite complete silence on the subject in the majority opinion in that case.[178] As the Supreme Court noted in Shalala v. Illinois Council on Long Term Care, Inc.,[179] the Court “does not normally overturn, or so dramatically limit, earlier authority sub silentio.”[180] To the contrary, as the Eleventh Circuit noted in Searcey, the decision in Hazelwood “acknowledges a school’s ability to discriminate based on content not viewpoint.”[181] Equally remarkable is the suggestion inherent in the circuit court decisions that Justice White would delete the viewpoint neutrality requirement entirely in his Hazelwood opinion without mentioning it, reversing well-established First Amendment precedent.[182] This theory suggests that Justice White abandoned the viewpoint neutrality requirement that he articulated in his majority opinion in Perry without any subsequent comment suggesting that he had such an intention.[183] This seems an unlikely scenario at best, and one ill-fitted to an opinion in which the Supreme Court reiterated allegiance to the Perry and Cornelius standards.[184]

Justice White continued to consistently apply the requirement of viewpoint neutrality, even in cases involving nonpublic forums, well after he wrote the majority opinions in Perry and Hazelwood. For example, in Lamb’s Chapel v. Center Moriches Union Free School District,[185] Justice White wrote the majority opinion striking down a discriminatorily applied public school access policy.[186] Justice White summarized the Court’s free speech jurisprudence in Lamb’s Chapel: “The principle that has emerged from our cases ‘is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.’”[187] Nothing about the facts or standard that Justice White announced in Hazelwood suggests that the general principle he summarized above does not apply in the context of school-sponsored expression.[188] The dissenting opinion in C.H. ex rel. Z.H. cited favorably the Lamb’s Chapel decision in concluding that Hazelwood would not justify viewpoint discrimination against school-sponsored speech.[189]

Finally, the Tenth Circuit Court of Appeals, in Fleming, argued that “it would make no sense to assume that Hazelwood did nothing more than simply repeat the traditional nonpublic forum analysis in school cases.”[190] If that were all Justice White needed to do to decide Hazelwood, perhaps the Tenth Circuit would be correct, but the Tenth Circuit’s criticism ignores the fundamental distinction between “school-sponsored” and “school-tolerated” speech at issue in Hazelwood.[191] Because the Supreme Court was faced with two then-existing standards for “nonpublic forum school cases” (Tinker and Perry), the decision in Hazelwood certainly did far more than “simply repeat the . . . analysis.”[192] Even so, the Court did not go so far as to create a subset of speech for which the First Amendment does not require viewpoint neutrality.[193] This is precisely what the Eleventh Circuit correctly recognized in Searcey; that is, Hazelwood “was intended to distinguish the case from Tinker and justify the application of the Cornelius [and Perry] standard,” rather than to eliminate viewpoint neutrality.[194] Under either Tinker, Cornelius, or Perry, viewpoint neutrality has remained the law, even after Hazelwood.[195]

In the absence of clear instruction from the Supreme Court to abandon the viewpoint neutral requirement on restrictions of free speech, the circuit courts should not discard the requirement on their own.[196] Removal of the restriction is contrary both to Supreme Court opinions regarding free speech in public schools and viewpoint neutrality in general.[197]

Conclusion

The Supreme Court has established standards to be used when evaluating restrictions on speech in nonpublic forums, including schools.[198] In Hazelwood, the Court elaborated on the standard to be applied to school-sponsored speech.[199] After Hazelwood, the circuit courts have split on whether the viewpoint neutrality requirement still applies to cases of school-sponsored speech in nonpublic forums.[200] The courts that have discarded the viewpoint neutrality restriction have created an exception that the Supreme Court did not intend and that is not consistent with other Supreme Court decisions.[201]

Although the Court in Hazelwood did not expressly restate the viewpoint neutrality requirement, courts had consistently applied that standard to state speech restrictions in all nonpublic forums before Hazelwood.[202] The Court in Hazelwood did not indicate that the First Amendment does not require viewpoint neutrality in school-sponsored nonpublic forums.[203] Because in its earlier decision in Perry the Supreme Court forcefully declared that viewpoint-neutrality was indeed required in nonpublic forums, it would be highly unusual for the Court, in an opinion authored by the same Justice, to abandon that requirement altogether without even mentioning what would be a distinct change in the law.[204]

Therefore, those circuit courts that have understood Hazelwood to abandon the viewpoint neutrality requirement have created an exception for school-sponsored speech in nonpublic forums that the Supreme Court did not intend.[205] Courts should require viewpoint neutrality in school-sponsored nonpublic forums until the Supreme Court decides to abandon that standard.[206]

Denise Daugherty