K-12 newspapers & yearbooks
By David L. Hudson Jr.
First Amendment scholar
Student journalists do not possess the same level of First Amendment
protections as adult journalists. Many public school students who work on their
school newspapers or yearbooks find that they do not have the freedom to write
on certain controversial subjects. In 1988, the U.S. Supreme Court ruled in
Hazelwood
School District v. Kuhlmeier that public school officials can censor
school-sponsored student expression as long as they have a valid educational
reason for doing so.
This decision has given school officials broad authority to regulate
school-sponsored publications. Generally, such publications are deemed to be
non-public — as opposed to public — forums, which are defined as places that
traditionally have been open to diverse viewpoints and First Amendment activity.
The Hazelwood decision
The controversy arose in 1983 at
Hazelwood East High School in St. Louis County, Mo. A journalism class produced
a newspaper called the Spectrum. An issue of the school paper included
articles on teen pregnancy and the impact of divorce on teenagers. The school
principal, Robert Reynolds, objected to these articles, finding that the
pregnancy story, which used fake names for the pregnant students, raised privacy
concerns and contained inappropriate subject matter for younger students.
Concerning the divorce story, Reynolds said the parents of the students quoted
in the story should have been given an opportunity to respond.
Reynolds ordered the stories removed, which resulted in two pages’ being cut
from the newspaper. Several students, including layout editor Cathy Kuhlmeier,
challenged Reynolds’ actions in federal court. After losing in the lower courts,
Kuhlmeier and others took the case all the way to the U.S. Supreme Court.
The students argued that their rights should be governed by the prevailing
standard for student First Amendment rights articulated by the Court in the 1969
case Tinker
v. Des Moines Independent Community School District. In that decision,
the Court ruled that public school officials could not constitutionally punish
students for their peaceful, symbolic expression of wearing black armbands to
school to protest U.S. involvement in Vietnam. The Court set up the
Tinker standard — that school officials cannot censor student expression
unless they can reasonably forecast that the expression will create a
substantial disruption or material interference with school activities or invade
the rights of others.
Kuhlmeier contended that the articles in question created no disruption
within the meaning of Tinker. However, the Supreme Court’s decision in
Hazelwood set up a new standard for school-sponsored speech. The majority
of the justices applied their notion of school-sponsored speech beyond student
newspapers to include school yearbooks, campus mascots, school plays and — in
the words of the Court — “other expressive activities that students, parents,
and members of the public might reasonably perceive to bear the imprimatur of
the school.”
In describing the new standard, Justice Byron White wrote:
“The standard articulated in Tinker for determining when a
school may punish student expression need not also be the standard for
determining when a school may refuse to lend its name and resources to the
dissemination of student expression. Instead, we hold 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.”
Penological to pedagogical: schools as prisons
With this language
Justice White established the Hazelwood standard for school-sponsored
expression. Ironically, the year before, the Court had established a standard
for prisoner constitutional rights in Turner
v. Safley (1987) — ruling that prison officials could impinge on
inmates’ constitutional rights if their reasons for doing so were reasonably
related to legitimate penological concerns. In Hazelwood, the Court
appeared to substitute “pedagogical” for “penological.” In effect, the ruling
means public school students have a similar level of First Amendment rights as
prison inmates — a frightening thought for student-rights advocates.
“That really is what the Hazelwood standard is based upon. In some
places prisoners have greater rights to freely express themselves than high
school students do,” Mark Goodman, director of the Student Press Law Center,
told the First Amendment Center Online. “Anyone who thinks our society benefits
by treating these two groups the same has a very cynical view of our future and
I just can’t believe those are the values we as a society want to promote.”
“Schoolhouses are sometimes being turned into jailhouses,” said Michael
Steinberg, legal director for the ACLU of Michigan. “The Constitution provides
greater protection for students than inmates and we have to stop those districts
[that] sometimes treat their students as prisoners.” Although Steinberg said
Hazelwood did not convert schools into prisons, he said the case no doubt
had led to reduced level of protection of student First Amendment rights.
The question becomes what is a reasonable pedagogical, or educational,
concern within the meaning of Hazelwood. In its decision, the Court gave
a few examples, writing: “A school must also retain the authority to refuse to
sponsor student speech that might reasonably be perceived to advocate drug or
alcohol use, irresponsible sex, or conduct otherwise inconsistent with the
shared values of a civilized social order, or to associate the school with any
position other than neutrality on matters of political controversy.”
The last example — allowing the school to censor student articles that would
associate it with controversial political issues and positions — draws the ire
of student-press advocates.
“I think that one certainly went too far,” said H.L. Hall, a long-time high
school educator and immediate past president of the Journalism Educators
Association. “Administrators are interpreting that particular statement to mean
that newspapers should not cover anything of a controversial nature and,
therefore, a lot of administrators will censor stories that they see as bad
public relations for the district. For example, an administrator could use this
reasoning to prohibit students from writing a story about a teachers’ strike
because it is controversial and bad public relations for the district.”
Goodman said the Court in Hazelwood failed to appreciate that people
can distinguish between students’ views and views that should be attributed to
the schools: “Schools should only be able to utilize that language of political
neutrality in Hazelwood if the school can show that people reasonably
believe that this was the school’s expression.” Goodman added that school
officials were more concerned with students’ disagreeing with views put forth by
school officials.
Many types of student-written articles could be at the mercy of school
censors.
“Anything involving sex, surveys about sexual habits, are often nixed by a
lot of administrators,” Hall said. “They target anything controversial. Even in
the states that have passed anti-Hazelwood laws, censorship problems are
still strong and prior review is still going on in those states even though the
laws say there should be no prior review.”
Particularly censorship-prone, Goodman said, is “anything that is perceived
as critical of school policies or school officials.” Sex and drug use are topics
often deemed “controversial or sensitive or somehow inappropriate for
discussion,” he said. “The concern is less over a discussion of the issue than
the perception that the problem is relevant in this particular school. For
example, on the subject of drug use, schools may be willing to allow students to
write stories about drug use/abuse, but they don’t want them to localize them.”
Public-forum question
A deciding issue in student-press cases is
whether the school-sponsored student publication is a public forum, a
publication that “by policy or practice” has been opened up as a forum for
student expression where students make the key decisions as to content. In other
words, if school officials make the final decisions with respect to content and
conduct prior review of the newspaper, the publication is not a public forum.
Students often have little control over whether their paper is a public forum
because in many instances administrators have already established a tradition of
regulation over the student publications. Students may find some success in
talking with their newspaper adviser and petitioning the school administration
for policy changes.
Student-press advocates insist that students learn more about journalism when
they really run the newspaper and can make content decisions free from school
censorship. Goodman lists three reasons:
“First, it instills in people the importance of free expression and
press freedom in a democratic society. There is no way a school can teach
American values while modeling the values of a dictatorship. Secondly, we are
preparing future journalists. There is widely reported research that many
working journalists got their start in high school. We want people who
understand and appreciate the role of the news media and don’t accept that the
government dictates what is or is not news. Also, student publications provide
invaluable insight into the thoughts and concerns of young people. There are
very few ways for adults to know what teenagers are thinking today. A student
publication is a great opportunity for that. We all lose as a community when we
cut off that channel of communication.”
Anti-Hazelwood laws
Several states — Arkansas, Colorado,
Iowa, Kansas, Massachusetts and Oregon — responded to Hazelwood by
enacting laws that provided greater free-speech protection to student
journalists. These laws are often called anti-Hazelwood laws. California
had a similar law in place before the Hazelwood decision. Pennsylvania
and Washington have administrative codes that purport to provide protection to
student journalists. Whether they do provide any is questionable.
These statutes vary considerably from state to state. Some apply only to
student journalists, while others apply to student expression in general. For
example, the Arkansas law — called the Arkansas Student Publications Act —
applies to student publications. It provides that school officials shall
recognize student journalists’ free-expression rights, but reserve the right to
prohibit certain types of publications, including:
“(1) publications that are obscene as to minors, as defined by state
law; (2) publications that are libelous or slanderous, as defined by state law;
(3) publications that constitute an unwarranted invasion of privacy, as defined
by state law; or (4) publications that so incite students as to create a clear
and present danger of the commission of unlawful acts on school premises or the
violations of lawful school regulations or the material and substantial
disruption of the orderly operation of the school.”
On the other hand, the Massachusetts law provides a more expansive protection
to students’ freedom of expression in the sense that it is not confined to
student journalists. It provides: “The rights of students to freedom of
expression in the public schools of the commonwealth shall not be abridged,
provided that such right shall not cause any disruption or disorder within the
school.”
Between 1995, when Arkansas passed an anti-Hazelwood law, and 2007, several
states considered but failed to pass such legislation. Those states included
Alabama, Connecticut, Illinois, Missouri and Nebraska. The dry spell for
student-press advocates was broken in 2007 when the Oregon Legislature passed
the Oregon Student Free Expression Law. Signed by the governor in July 2007, the
measure provides broad protections to student journalists. It provides that
“student journalists have the right to exercise freedom of speech and of the
press in school-sponsored media, whether or not the media are supported
financially by the school or by use of school facilities.”
Why more states haven’t responded to Hazelwood with a statute is an
interesting question. “It is really hard work,” Goodman says, to push for such
legislation. “Many high school teachers and students who are strongest advocates
just got burned out (trying promote such laws).” The other factor, according to
Goodman, is the attitude of legislators, which has “become problematic in the
course of the last ten years, certainly in light of recent incidents of school
violence,” he said. “There is much more willingness to give school officials
much more authority to regulate student expression.”
Another problem, according to student-press advocates, is the prevalence of
prior review — the process by which school officials review student newspapers
before their distribution. In its book The Law of the Student Press, the
Student Press Law Center writes: “There is no way a student publication can
remain an independent source of news or serve as a watchdog for the school
community when a school administrator is shaping its content before it goes to
press.”
Hall calls prior review a lose-lose situation for student journalists because
it:
- Teaches students that their ideas have no value or are dangerous.
- Says students don’t need to be critical thinkers.
- Says someone else will take responsibility for whatever they do.
- Says the First Amendment is not a necessary part of society.
- Shows journalism teachers are not needed because school administrators know
best.
- Says students no longer need responsibilities, morals, values, ideas,
imaginations, dreams and hopes because they can expect someone else to always
provide them.”
He adds that the problem of prior view is pervasive. “Even in the states that
have passed anti-Hazelwood laws, censorship problems are still strong and
prior review is still going on in those states even though the laws say there
should be no prior review.”
Viewpoint discrimination
In his Hazelwood dissent, Justice
William Brennan warned that “the case before us aptly illustrates how readily
school officials (and courts) can camouflage viewpoint discrimination as the
‘mere’ protection of students from sensitive topics.” He added: “Even in its
capacity as educator the State may not assume an Orwellian ‘guardianship of the
public mind.”
A looming legal question is whether the Hazelwood standard —
reasonably related to legitimate educational concerns — swallows the general
First Amendment prohibition against viewpoint discrimination. In other words,
can school officials restrict speech based on viewpoint under Hazelwood?
The lower courts are divided on this issue. As a recent federal district court
opinion, Chiras v. Miller (2004), acknowledges: “The circuits are split
on whether Hazelwood affords discretion to educators to engage in
viewpoint-based discrimination, as long as the discrimination is reasonably
related to legitimate pedagogical concerns” or whether Hazelwood requires
viewpoint neutrality.
In Fleming v. Jefferson County Sch. Dist., the 10th U.S. Circuit Court
of Appeals determined that the Hazelwood standard does not require
viewpoint neutrality: “The Court’s specific reasons supporting greater control
over school-sponsored speech, such as determining the appropriateness of the
message, the sensitivity of the use, and with which messages a school chooses to
associate itself, often will turn on viewpoint-based judgments.”
On the other hand, the 9th Circuit, 11th Circuit and 2nd Circuit have
determined that Hazelwood does not sanction viewpoint-based
discrimination. For example, in the 1989 decision Searcey v. Harris, the
11th Circuit wrote: “Although the Supreme Court did not address viewpoint
neutrality in Hazelwood, there is no indication that the Court intended
to drastically rewrite First Amendment law to allow a school official to
discriminate based on a speaker’s views.”
More recently, a three-judge panel of the 2nd Circuit in October 2005
concluded in Peck v. Baldwinsville Central School District “that a
manifestly viewpoint discriminatory restriction on school-sponsored speech is,
prima facie, unconstitutional, even if reasonably related to legitimate
pedagogical interests.”
Eventually, the Supreme Court may well have to clear up the confusion in the
lower courts regarding the Hazelwood standard and the fundamental First
Amendment principle counseling against viewpoint discrimination. In the
meantime, student journalists and other students engaged in school-sponsored
expression must deal with the reality of reduced First Amendment protection in
the school.
Updated October 2007