Overview
For more than thirty years, local public
school boards and school administrators have been governed by
the following principle: “students do not shed their First
Amendment expression rights at the schoolhouse gate.” Tinker
v Des Moines (1969) However, as the United States Supreme
Court has clearly stated, the First Amendment rights of public
school students “are not automatically coextensive with the
rights of adults in other settings.” Bethel School District v
Fraser (1986)
The past three decades have produced
numerous student expression issues. More often than not, the
precise language and implementation of school system policies,
rules, and procedures governing student expression have found
their way into a court of law. While past commentaries have
focused on issues associated with student attire and verbal
speech, this month’s edition will discuss policy issues
involving student publications (i.e., student
freedom of the press).
Student Publications and School System
Control. Student “freedom of the press-type cases” involve
two categories of publications, school-sponsored and
non-school-sponsored. Vacca and Bosher (2003) A distinction
can be made between the two types. School-sponsored
publications are those officially sanctioned and recognized
by school authorities (i.e., those that bear the school
system’s “official imprimatur”), including but not limited to
those directly related to the curriculum. For example, the
yearbook and the school newspaper fit this definition.
Non-school publications (sometimes referred to as
“underground publications”) are those that are (a) not sponsored
or supported by school authorities and (b) produced off-school
grounds.
Student Freedom of the Press. As one
source reminds us, “[t]he First Amendment gives very little
protection to student freedom of the press in school-sponsored,
curricular publications.” Fischer, Schimmel, and Kelly (2000)
Because the public forum analysis does not apply, and school
officials may be held directly accountable for what is said or
otherwise depicted in a school-sponsored publication,
they exercise more control. For example, requiring students to
submit written material for review of the content by a teacher
and or the principal prior to publication is not necessarily
unreasonable or unconstitutional, per se, especially where
controversial subjects are involved. DeNooyer v Livonia (E.D.
Mich. 1992) However, as Alexander and Alexander caution, “If a
school policy requires that students submit materials before
distribution, then strong due process procedures must be in
place….” Alexander and Alexander (2005)
Regarding non-school sponsored
publications, school system control is much less. Where a
student newspaper or other publication is non-school sponsored
and is intended as a vehicle for student expression, is neither
sold nor distributed during instructional hours, and is not a
part of the curriculum, school officials must proceed with
caution when reacting to the content of such publications.
Because the public forum analysis applies, courts
have consistently held that school authorities do not have the
authority to regulate content (generally regarded as personal
speech), but legally can refuse to grant permission to
possess, sell, distribute, or use non-school publications on
school grounds.
It must be clarified, however, that where
the content of student publications (both school-sponsored and
non-school sponsored) advocates something harmful and/or
illegal, the authority regulatory authority of school officials
increases. In such cases it is necessary to proceed with all
deliberate speed. Bosher, Kaminski, and Vacca (2003)
Time, Place, Manner, and Use. In
situations where students are granted permission to bring
non-school publications on school grounds (i.e., a public
forum has been opened), school authorities have the authority to
regulate time, place, manner of distribution, and use of
non-school publications. Such regulations are intended to keep
the learning environment safe and free of disruption. Eisner
v Stamford School Board (2nd Cir. 1971) Where
school officials grant permission to one student for
distribution of a non-school sponsored publication on school
grounds, the school’s forum may be characterized as one open to
indiscriminate use. If this happens, the school’s forum is open
to similar requests from other students. Good News Club v
School District (8th Cir. 1994)
Emerging Issues and Case Law
Whatever the issue concerning local school
board policies governing student publications (both
school-sponsored and non-school sponsored), the courts have made
it clear that three features must be present to survive judicial
scrutiny. First, the language of the policies must be clear and
understandable (i.e., neither overly broad nor vague).
Second, the types of prohibited material, objectionable
language, and forbidden subjects must be specifically spelled
out. Third, procedural safeguards must be in place to implement
the policies, including: (a) the person (by position [e.g.,
school principal] and not by name) responsible for making
decisions regarding publications, (b) the criteria used to
evaluate the appropriateness of the material in question, and
(c) an expeditious review process. As stated above, whether or
not a public forum has been established is another
judicial concern.
In 1977, the United States Court of Appeals
for the Fourth Circuit heard a Virginia case involving a high
school principal’s decision to not allow students to publish
portions of a student composed article in the school newspaper.
The article was entitled “Sexually Active Students Fail to Use
Contraceptives.” While the principal was willing to publish data
collected from a survey of the high school’s student body
regarding their attitudes toward birth control, she was not
willing to have a discussion of contraceptives included. The
student editors wanted the whole article published. In affirming
a lower court’s ruling in favor of the students, the appellate
court stated that under the school board policy covering student
publications, the school newspaper had, because of it past us,
developed into a “public forum” for student opinions. As such,
the school newspaper was no longer an outgrowth of the school
curriculum where school authorities can regulate content.
Gambino v Fairfax County School Board (4th Cir.
1977)
That same year, the Second Circuit held in
a similar case that school officials need only show “a
reasonable basis to justify restraints on school publications
distributed on school property.” More specifically, the court
opined that reason to believe that “harmful consequences might
result to students” serves as a reasonable basis to disapprove
of a student-initiated sex survey being published in the school
newspaper. The court also drew a distinction between grade
levels when judging the appropriateness of published material.Trachtman
v Anker (2nd Cir. 1977)
In matters involving student-initiated
non-school sponsored publications, school officials must
establish a connection between a specific publication and a need
to: (1) maintain discipline and control on school grounds, or
(2) protect the learning environment from harmful activity.
Where students directly disregard or show disobedience to the
school system’s decision, disciplinary action may be taken
against student violators. Thomas v School Board (2nd
Cir. 1979)
In 1980, the Fourth Circuit held that
public school administrators have the authority to ban the
distribution of non-school publications on school grounds. In
this case the actions of school administrators were based on
their belief that the contents of the publication would endanger
the health and safety of the students. Williams v Spencer
(4th Cir. 1980)
In 1981, a United States District Court
heard a case involving students who had been suspended from
school for distributing (in school hallways) a leaflet
advocating a student walkout. In ruling for the school system,
the court was convinced that because there had been a prior
walkout of students the school system’s actions regarding the
leaflet distribution were justified. In the court’s opinion, a
nexus was established between the distribution of leaflets and
possible material disruption of school activities. Thus, the
disciplinary measures taken against the students were
appropriate. Dodd v Rambis (S.D. Ind. 1981)
The Supreme Court Speaks: Hazelwood v
Kuhlmeier. In 1988, the United States Supreme Court
decided a case involving a school-sponsored newspaper. More
specifically, the dispute in the case grew out of a public high
school principal’s decision to disallow the publication of two
student-written articles in an edition of the paper. The
principal’s decision was based on his reactions to the content
of each article.
Subsequently, students filed suit in a
federal district court claiming that their First Amendment
rights had been violated by the principal’s actions. The court
denied relief and opined that public school officials may impose
restraints on student speech in activities that are an integral
part of the school’s educational function (i.e., a part
of the curriculum). Kuhlmeier v Hazelwood (E.D.
Mo. 1985) On appeal to the Eighth Circuit, however, the district
court’s decision was reversed. In the appellate court’s opinion,
while the school newspaper in question was a part of the school
curriculum, it had, because of past use, become a public
forum “intended to be operated as a conduit for student
viewpoint.”
Applying the Tinker standard the
court held that school officials could not censor the content of
articles except to “avoid material and substantial interference
with school work or discipline…or the rights of others.
Kuhlmeier v Hazelwood (8th Cir. 1986)
Ultimately, the United States Supreme Court
reversed the Eighth Circuit. In reaching a decision, the high
court drew a distinction between symbolic speech
(protected by Tinker) and “speech sponsored by the school
and disseminated under its auspicious.” In this case, said the
majority, the school principal acted in response to “reasonable
pedagogical concerns” regarding the possible inclusion of the
two articles in a “school-sponsored and school disseminated
newspaper.” Thus, his exercise of editorial control over the
content of the student-composed articles did not offend the
First Amendment. Hazelwood v Kuhlmeier (1988)
It must be emphasized that Hazelwood
did not grant public school administrators an uncontrolled
freedom to censor school-sponsored publications as they please.
As Fossey and LeBlanc remind us, “a student’s viewpoint should
not be disregarded simply because it is unpopular or makes
others feel uncomfortable.” Fossey and LeBlanc (2004)
Students and Technology: Post-Hazelwood.
One rapidly emerging issue area involving student
publications does not deal with newspapers and books. The
emerging area concerns the use of computers and other
technologies to produce and disseminate student-created
endeavors. Should public school officials discipline a student
for something he/she has created and disseminated on a Web
site? While there has not been enough solid case law to form a
definitive answer to the question, the courts have generally
held that material produced by students at home, on their own
time, using their own computers, that neither substantially
disrupts the school’s learning environment nor constitutes an
actual threat of harm, and does not interfere with the rights of
others is protected under the First Amendment. Killion v
Franklin Regional (W.D. Pa. 2001)
In 1998, the Eighth Circuit heard the
appeal of a student who had been disciplined for encouraging
other students to “hack” into the school’s computer. In
upholding the disciplinary actions the court was convinced that
the discipline was based on a reasonable forecast of disruption
of the school environment. Boucher v School Board (7th
Cir. 1998)
Policy Implications
As the above discussion demonstrates, there
are many policy implications involving student publications.
What follow are some suggestions for consideration as local
school boards examine existing policies and consider the
creation and implementation of new policies. Policies must make
it clear that the school board:
·
Recognizes and respects the First Amendment
expression rights of all students and intends to balance these
rights with the prerogatives of school officials,
administrators, and teachers to establish and maintain a safe
and disruption-free learning environment.
·
Is vested with and intends to carry out legal
authority to approve and control the sale, distribution,
possession, and use of all school-sponsored publications
(including student- initiated publications).
·
Is vested with and intends to carry out legal
authority to approve and control the sale, distribution,
possession, and use of all non-school sponsored publications
(including student-initiated publications) brought onto school
grounds and/or used in the school buildings of the school
district.
·
Prohibits and will not tolerate the sale,
distribution, possession, and use of any school-sponsored or
non-school sponsored publication that advocates or in anyway
promotes illegal activities; or includes and discusses harmful
behaviors; or advocates school disruption; or constitutes
threats to staff and/or students; or contains lewd, profane, and
obscene language.
·
Requires and enforces a process of prior review
and approval of all publications (school-sponsored and
non-school sponsored) present on school property.
To successfully implement and carry out the
school system’s policies on student publications, the board
must: (1) designate persons by official title (not by the
person’s name) who will be responsible for screening and
otherwise monitoring student school-sponsored and non-school
sponsored publications, and (2) specify criteria upon which
decisions will be made. Finally, all decisions involving student
publications must be based on reasonable pedagogical concerns
and made without delay.
Resources Cited
Alexander and Alexander, AMERICAN PUBLIC
SCHOOL LAW, Sixth Edition (2005)
Bethel School District v Fraser, 475 U.S.
675 (1986)
Bosher, Kaminski, and Vacca, THE SCHOOL LAW
HANDBOOK (2004)
Boucher v School Board, 134 F.3d 821 (7th
Cir. 1998)
DeNooyer v Livonia Public Schools, 799
F.Supp. 744 (E.D. Mich. 1992)
Dodd v Rambis, 535 F.Supp. 23 (S.D. Ind.
1981)
Eisner v Stamford, 440 F.Supp. 803 (2nd
Cir. 1971)
Fischer, Schimmel, and Kelly, TEACHERS AND
THE LAW, Fifth Edition (1999)
Fossey and LeBlanc, “The Constitutional
Right to Be Politically Correct: Hanson v Ann Arbor Public
Schools,” 39 ELA Notes 16 (2004)
Gambino v Fairfax County Public Schools,
429 F.Supp. 731 (E.D. Va. 1977, aff’d, 564 F.2d 157 (4th
Cir. 1977)
Good News Club v School District, 28 F.3d
1501 (8th Cir. 1994)
Hazelwood v Kuhlmeier, 108 S.Ct. 562 (1988)
Killion v Franklin Regional, 136 F.Supp.2d
446 (W.D. Pa. 2001)
Kuhlmeier v Hazelwood, 607 F.Supp. 1450
(E.D. Mo. 1985)
Kuhlmeier v Hazelwood, 795 F.2d 1368 (8th
Cir. 1986)
Thomas v Board of Education, 607 F.2d 1043
(2nd Cir. 1979), cert. denied, 222 U.S. 1081
(1980)
Tinker v Des Moines, 393 U.S. 503 (1969)
Trachtman v Anker, 426 F.Supp. 198
(S.D.N.Y.), aff’d, 563 F.2d 512 (2nd. Cir.
1977)
Vacca and Bosher, LAW AND EDUCATION:
CONTEMPORARY ISSUES AND COURT DECISIONS, Sixth Edition (2003)
Williams v Spencer, 622 F.2d 1200 (4th
Cir. 1980)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
