EXCLUSIVE: Policies for underground papers do not always follow law

On its face, the Middlesex Borough Board of Education’s policyon independent student publications could have been penned byJames Madison. It says the board “respects the right of pupilsto express themselves” and allows them to “distributeprinted materials as part of that expression.”

But a few lines down from that glowing embrace of the FirstAmendment come exceptions that Madison did not include when hehelped write the Bill of Rights. Students in the New Jersey schooldistrict must avoid the topics of religion, philosophy, politics,advertisements and school bond issues.

A review of policies from a randomly selected group of schoolsaround the country found that for students wanting to expresstheir views or produce an independent, non-school-sponsored studentnewspaper, the devil is in the details.

The Student Press Law Center surveyed 25 school districts spreadacross the country, finding the majority who responded are morerestrictive of the underground student press than courts haveallowed. Those rules usually come as restrictions on politicalor religious content, advertising or prohibitions on anonymousliterature.

The underground press has experienced a resurgence as studentsbypass their school’s official and often administration-controllednewspaper to bring their news and views to the rest of the school.Courts have repeatedly upheld the right of public school studentsto express themselves unless it endangers the operation of theschool.

In 1969, the Supreme Court ruled in Tinker v. Des MoinesIndependent Community School District that a group of studentscould not be punished for wearing black armbands to protest theVietnam War. The case sets the standard for student speech today,allowing students wide freedom of expression unless administratorscan prove that the speech would cause a "material and substantialdisruption" of the school day.

Students writing for their official school newspaper are oftensubject to tighter restrictions stemming from the 1988 SupremeCourt decision in Hazelwood v. Kuhlmeier, which gave administratorswider latitude to censor many school-sponsored newspapers. Administrators,however have very little power to censor publications producedindependently by students.

Since the Tinker decision, very few courts have upheldfurther restrictions on independent student speech. But this hasnot stopped many school systems from piling on exceptions to theirstudents’ First Amendment rights.

The Middlesex school district allows administrators to prohibitthe distribution of publications that "seek to establishthe supremacy of a particular religious denomination, sect, orpoint of view." The board’s reasoning? Those publications"violate the rights of others."

Four other school districts surveyed in Pennsylvania, Ohioand Florida have similar restrictions.

Courts have consistently struck down regulations against religiousspeech in schools. In the 1992 case Clark v. Dallas IndependentSchool District, a federal district court in Texas upheldthe right of a group of students to meet and pass out religiousliterature at school.

"A blanket prohibition on high school students’ expressionof religious views and even proselytizing on campus is unconstitutionaland contrary to the purpose of secondary schools," the courtsaid.

Almost half of the school districts surveyed prohibited studentsfrom including advertising in their publications, even thoughcourts have ruled that prohibitions on commercial speech are inconsistentwith the First Amendment, even in schools. Three districts surveyedprohibited students from publicly endorsing or opposing candidatesin a school board election or taking a position on a school bondissue.

Only one district, Richmond City Public Schools, has an outrightban on underground publications. The simple, one-sentence policyreads, "The unauthorized sale or distribution of nonschool-sponsoredpublications will not be permitted on school property at any time."

An attorney for the urban Virginia district of almost 28,000students said she could not say exactly what a "nonschool-sponsoredpublication" was and that she had not considered whetherthe restriction was constitutional.

"I haven’t examined this policy in light of Tinker,but it’s something we can take a look at," said KimberlySmith, an attorney for the Richmond City Public Schools.

Besides the more prominent First Amendment protections of speech,press and religion, several policies restrict students’ freedomof assembly. Franklin County School District in northern Floridaprohibits students from forming or joining any "secret societies"or any other student group not approved by the school. And becausethe policy is not limited to school campuses, administrators couldpotentially discipline a student who joins a group such as theBoy Scouts outside of school.

Colmbiana School District in Ohio and St. Mary’s County PublicSchools in Maryland have similar restrictions. A school officialfrom St. Mary’s said the regulation is little used and is mainlyin place for when something gets out of hand.

"Is this a policy that we use a great deal? No, becauseit’s there to protect us in the event that something occurs,"said Rodessa Millham, director of curriculum and instruction.

While many of the policies surveyed may merit legal scrutinyfor being more restrictive than the law allows, courts have alsofound that many school policies suffer from being unconstitutionallyvague.

The U.S. Court of Appeals for the Fourth Circuit overturneda school district’s publications policy in 1975 because it gaveschool officials too much leeway to decide what a substantialdisruption was even though the policy used language from Tinker.

"A crucial flaw exists in this directive since it givesno guidance whatsoever as to what amounts to ‘a substantial disruptionof or material interference with school activities,’" thecourt said of the district’s policy in Nitzberg v. Parks."And equally fatal, it fails to detail the criteria by whichan administrator might reasonably predict the occurrence of sucha disruption."

One possible example of this vagueness may be in the policyof the Indianola, Iowa, school district. It begins by saying thatstudent expression on campus "may be attributed to the schooldistrict, therefore student expression must be responsible." It continues, "Students will be allowed to express theirviewpoints and opinions as long as the expression is responsible."

On the other side of the spectrum is the policy of the ArlingtonIndependent School District in Texas, which spells out the Tinkerstandard in great detail, using simple terms, the requirementsthat administrators must follow to determine a substantial disruption.It also says that material that is critical of school officialscan only be censored if it is likely to incite lawless action.

Mark Goodman, executive director of the Student Press Law Centersaid students are often unaware of their school’s policy and don’trealize that the policies may be unconstitutional.

"Schools get away with having such patently unconstitutionalpolicies on the books because too many students simply don’t knowtheir rights," Goodman said, adding that students kept fromdistributing literature should contact the SPLC for legal advice.

Read excerpts from school district policies surveyed by the SPLC.Alameda School District, Alameda, Calif. “Students may not post or distribute materials regarding the meetings of non-curricular student-initiated groups”