Samuel Alito Urges Supreme Court to Clarify Precedent Set 38 Years Ago

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.

What to Know

• The Supreme Court declined to grant certiorari in the case involving a high school student who founded a Students for Life club and was denied permission to hang up flyers.
• Plaintiffs asked the Supreme Court to clarify its Hazelwood ruling.
• Alito said the court should have heard arguments in the case, writing that courts have “struggled to ascertain” the “precise limits” of the ruling.

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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.

Plaintiffs asked the court to clarify splits among circuit courts on the Hazelwood ruling.

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.”

This is a breaking news story. Updates will follow.