From billion dollar budget crises to orange alerts for homeland security, state legislators are busier than ever this session. With constituents concerned about the economy and war in Iraq, it is perhaps no wonder that legislation to increase high school students’ free-speech rights has fallen off the agenda.
But it is not just recent obstacles that are deterring supporters from pushing for greater press freedom for student journalists.
The attempt to reverse the effects of the 1988 U.S. Supreme Court decision in Hazelwood School District v. Kuhlmeier reached its peak in the early 1990s. The last student free-expression bill passed eight years ago in Arkansas. Five other states had already increased protection for the student press post-Hazelwood, including California, Colorado, Kansas, Iowa and Massachusetts.
Since 1995, the number of attempts to introduce legislation has gradually declined. In 2001 the most recent bills to be introduced failed in Oregon, Missouri and Alabama either because they never made it out of committee or were abandoned after killer amendments were tacked on.
At the same time, reported incidents of censorship are steadily on the rise. Requests to the Student Press Law Center from high school students and advisers for legal advice about censorship more than doubled, from 211 in 1995 to 482 in 2001.
Staunch supporters of student rights say they do not want to give up on passing legislation, but all agree that with the odds stacked against them, this is simply not the right time.
Fitting the bill
Hazelwood was a defining moment for high school journalism. The Supreme Court ruled that administrators could censor school-sponsored student newspapers that were not ‘public forums’ for student expression if they could show they had a legitimate educational reason for doing so. The decision dramatically reduced the First Amendment protection student journalists had been afforded in earlier court rulings.
Student free-expression bills, also known as anti-Hazelwood legislation, typically seek to return student journalists the rights outlined by the Supreme Court in its 1969 decision, Tinker v. Des Moines Independent Community School District. In that case, the Court recognized that students do not ‘shed their constitutional rights to freedom of expression at the schoolhouse gate.’ The Court said that students were allowed to express themselves freely unless their actions caused a ‘material and substantial disruption’ of normal school operations or an invasion of the rights of other students.
Free-expression bills aim to protect student publications from censorship by administrators, unless the Tinker standard has been met, and provide student editors the responsibility for determining the news, opinion and advertising content of their publications.
The legislation can also include a clause to protect newspaper advisers from retaliation from administrators for content students produce.
Marc Abrams, former executive director of the SPLC and a member of the Portland, Ore., school board, said, ‘The way many schools retaliate against student journalists is by using the power they have over the journalism adviser.’
Many legislation advocates say advisers are powerful spokesmen for students, but when advisers are caught between pleasing the administration to keep their job and helping the students to secure their rights, the situation can turn ugly.
Model legislation drafted by the SPLC says, ‘No journalism adviser will be fired, transferred or removed from his or her position for refusing to suppress the protected free-expression rights of students.’
Legislation can also remove school officials from legal responsibility for expression made or published by students, unless they interfere with the content of the student expression.
The Columbine effect
With increased campus security, students passing through metal detectors before entering school and ‘zero-tolerance’ policies strictly enforced, advocates are not sure how to convince legislators or the public that now is the time to promote student rights.
‘I think certainly Columbine scared a lot of people,’ said Harry Proudfoot, a legislation advocate and journalism adviser at Westport High School in Massachusetts, referring to the shootings at a Colorado High School in 1999. ‘I think that if you’re going to prevent a Columbine kind of thing, you need a newspaper that has the freedom to pursue stories and to really be the student’s voice,’ he said. Proudfoot said student newspapers build community on campus and give students who may feel disenfranchised a place to express their views.
H.L. Hall, past president of the Journalism Education Association, said that there is no doubt that school violence has contributed to a climate of censorship.
Since Columbine, there have been several cases of school districts punishing students for what officials consider ‘threatening speech.’ In January the California Supreme Court agreed to hear a case involving a former Santa Teresa High School student to decide if the First Amendment protected his right to share his ‘dark poetry’ with classmates. The student, identified only as ‘Julius’ in court documents, was sentenced to 100 days in juvenile hall for showing two classmates his poetry, which included the statement, ‘For I can be the next kid to bring guns to kill students at school.’
Although many of these cases do not directly involve student media, they may prompt restrictive policies toward all forms of expression, including student newspapers, yearbooks and Web sites.
Hall said school administrators often reject and lobby against free-expression bills because they are afraid of lawsuits.
‘Principals just think that they’re liable for anything that happens and so they just don’t want to let go,’ Hall said. ‘Their first concern is a libel case will be brought.’
However, no published court decision in the United States has ever found a public school district legally responsible for something published in a high school student publication. Additionally, the free-expression bills that have been proposed all include provisions that prohibit students from publishing material that is libelous or slanderous as defined by state law.
‘Sometimes I think we don’t educate principals enough to make them realize that if they take control of a student publication then they are really liable for what may occur,’ Hall said.
Abrams, who has authored a free-expression bill said, ‘Keeping the student press free is not only the right educational decision, it’s a smart business decision for a district as well.’
Current SPLC Executive Director Mark Goodman said that fear of liability is often just an excuse.
‘School officials are not willing to give up control, despite the educational benefits of doing so,’ he said. ‘Let’s face it, if school officials were really concerned with protecting themselves from liability, they would have done away with football long ago.’
Hesitant administrators are not solely to blame for the failure of legislative efforts. Without solid grass roots support from a coalition of teachers, advisers, students and when possible, school administrators, a bill is often dead on arrival.
‘This is the kind of bill that ‘ people can’t get excited about,’ said Cheryl Pell, executive director of the Michigan Interscholastic Press Association. ‘Most people care about laws about drugs and crime and theft, but when it comes to giving high school journalism students press rights, it doesn’t get people up in arms.’
Tom Rolnicki, executive director of the National Scholastic Press Association, said, ‘If teachers, students and parents aren’t clamoring for these initiatives, then there’s little a press association can do to realize them.’
Proudfoot said that people pushing legislation face the inevitable problems that advisers are often too busy to fully support the effort and the students, who are most affected by the law, no sooner get involved than they are graduating and heading to college.
This legislative session most states are facing overwhelming budget deficits. Legislators’ hands are tied up with appropriations bills and spending cuts, leaving little time to discuss other measures.
Connecticut Rep. Themis Klarides, R-Derby, said he did not reintroduce free-expression legislation this year that had been proposed in 2001 due to the current economy. ‘We have had to devote our efforts to resolving the state budget crisis,’ Klarides said.
Randy Vonderheid, journalism coordinator for the University Interscholastic League, which runs extracurricular activities for Texas high schools, said it is a bad time to approach the state Legislature because it is grappling with a $10 billion dollar deficit. A student free-expression bill has never been introduced in Texas.
Pell echoed the sentiment for Michigan. ‘I think that budget concerns in Michigan have to be sorted out a little better before anybody starts,’ she said.
Yet legislation to grant additional protection for the free-press rights of student journalists could pass with no impact on states’ strained budgets.
Pell said compelling stories of censorship might encourage the public to lobby for students despite all their other concerns.
‘We find so often that when something gets censored that more people hear about it than ever,’ she said.
She said she is hopeful that recent incidents of censorship of ‘legitimate stories’ in Utica and Grosse Pointe South high schools will serve as rallying points for a new push for legislation. Last spring Utica High School administrators refused to allow its award-winning student newspaper to publish an article about a pending lawsuit that alleged that diesel fumes from school district buses were causing heath problems for area residents. (See STUDENT, page 19.) And at Grosse Pointe South, a seven-line article about a fatal accident in the school parking lot was recently censored. (See SACKING, page 20.)
matter of trust
Advocates agree that free expression for students, even with Tinker-style limitations, is a big leap for adults in authority positions to take.
‘The idea is that you have to trust young people and unfortunately a lot of administrators and legislators don’t want to trust 16-, 17-year-olds,’ said James Tidwell, executive secretary of the Illinois Journalism Education Association. ‘The sky is not falling when students do make decisions.’
Hall of the JEA said, ‘It just seemed to me like legislators are paranoid.’ He emphasized that student journalists operate under the same rules as professional press in regard to libel, obscenity and invasion of privacy. ‘The controls are already there,’ Hall said. ‘We didn’t need Hazelwood to put those controls into effect.’
Alabama Rep. Sue Schmitz, D-Toney, has introduced free-expression legislation three times in her state to no avail. Often legislators opposed to the bill attach amendments that defeat the purpose of the bill by allowing more censorship or making the law’s requirements optional. Such killer amendments have been adopted in Alabama, Connecticut and Nebraska in recent years forcing the sponsors to withdraw support for the bills.
Schmitz said her main opposition has been from lawmakers who ‘certainly don’t understand students.’
‘Most of [the students] that came to me in Alabama from across the state, simply wanted to tell the truth,’ she said. ‘I even had a student who came to me from one school whose principal would not let them give the scores of the ball game if they lost the ball game.’
Schmitz said, ‘Having been a sponsor for a school newspaper, I understand that students can make good decisions and would make good decisions if they were given the opportunity. The truth is the truth.’
Still, school officials often take issue with the student newspaper reporting on sensitive subjects. Articles discussing underage drinking and the lifestyle of gay teens are among the topics recently censored by principals. (See SACKING, page 20.)
Proudfoot said, ‘It’s a very hard sell to [administrators]. In part because the average principal wants to have control over what is arguably the most potent public relations vehicle he can have.’
A student newspaper, Proudfoot said, should be allowed to pursue meaningful articles, even if they are deemed controversial.
‘One of the real values of a free student press is that it gives kids not only an outlet, but it gives them the information they need so that they don’t feel isolated, so that they don’t get pregnant, so that they know where to go if they feel like shooting the building up. The more information you have, the more likely you are to make a good decision.’
Many states have launched effective legislation campaigns, but somehow still failed at the last minute.
For supporters in Illinois, the heartbreak of the governor vetoing their bill in 1997 after it passed the senate unanimously still stings.
‘We’d worked so hard. The stars just lined up perfectly in 1997 and they haven’t since,’ Tidwell said. ‘Everything since then has been sort of half-hearted.’
One might assume that partisan politics would play into the scenario, but experience has shown that party affiliation is not a determinant of success. Bills have failed in both Republican- and Democrat-controlled chambers and of the five states that adopted laws after the Hazelwood decision, three had Democrat and two had Republican legislatures.
John Taglierini, a journalism adviser at Bergenfield High School in New Jersey, led the Garden State Scholastic Press Association’s effort to pass legislation in 1992. The bill was introduced with 43 co-sponsors but was rushed through the Senate in a midnight vote of a lame duck session and was defeated.
‘It takes a lot of work,’ Taglierini said. ‘You have to really be prepared to do battle.’
Taglierini said that it is critical for students to have press freedom to learn to appreciate the First Amendment.
Proudfoot said he is concerned that students who are subject to censorship may not learn the importance of free press. ‘At this point,’ he said, ‘we’ve raised an entire generation of student journalists who think it’s OK for the government to tell them what should be in a newspaper. That’s a dangerous precedent to set.’
Expectations for the future
There remains a resolve among longtime supporters of student free expression that anti-Hazelwood legislation has not seen its last trip to the senate floor, but the likelihood of the success on its next trip remains uncertain. No bills are expected to be introduced during current legislative sessions.
‘We’re a long way from 1988 now,’ Hall said. ‘If you can’t get it done in 15 years at the state level, then chances are slim that it’s going to happen now.’
Proudfoot admitted, ‘If we tried today to pass this legislation in Massachusetts, we would be hard pressed to do it. The state legislators are way too busy dealing with post-September 11 stuff and are even more convinced frankly that not only should the student press be under wraps, but the professional press should be, too.’
Many advocates wonder if they need a new approach or a new way to mobilize a base of supporters. ‘Frankly, we’re just spinning our wheels right now,’ Proudfoot said.
Although the current climate does not look good, many advocates say they will push forward.
Pell said she is more optimistic for the future of the legislation now that Michigan has a Democratic governor, but she said that she will wait until after the war to proceed.
In Alabama, Schmitz said she remains adamant in support of student free expression.
‘I’m not going to give up just because somebody’s in opposition. We’re going to keep on doing it until we get it right.’
Want to make a difference? Here are tips for passing a bill:
1. Sponsors matter: All of the states that have been successful in passing legislation to strengthen student rights have found a sponsor who is respected on education issues and dedicated to the bill?s success.
2. Bipartisan support: Student press freedom is often thought of as a ?liberal? issue and thus one more likely to be supported by Democrats. In Colorado, active support of the Colorado Federation of Republican Women demonstrated that the bill was important to both parties.
3. Grass roots support: If constituents do not make it clear to their representative that the bill is important to the voters, there is little incentive to vote for the legislation. Mobilize a well organized, broad-based coalition of advisers, parents and students around passing the legislation, and if you cannot convince administrators to support the bill, find a way to keep them neutral on the matter.
4. Compromise: Be willing to work with all interested parties on the language of the bill. Be willing to compromise, but watch out for killer amendments that will defeat the purpose of the bill, especially clauses that would make the law?s requirements optional.
5. Stay intense: Bills do not get passed by themselves. In states where the legislation has passed they circulated petitions, made phone calls and sent out at least a half dozen separate mailings to every legislator, including copies of high school newspapers from around the state. Supporters must build pressure on legislators before every vote from committee to the floor.