A state regulatorycommission is considering changes to the state’s education code that studentfree expression advocates fear could give school administrators greater power tocensor student publications.
The Independent Regulatory ReviewCommission, which evaluates and makes recommendations on state regulations, isreviewing a proposal by the state Board of Education and the Pennsylvania SchoolBoard Association to amend key portions of Section 12.9 of the PennsylvaniaCode.
Since it was enacted 25 years ago, Section 12.9 has providedstudent journalists attending Pennsylvania public high schools with addedprotection against administrative censorship. Pennsylvania’s regulatory code isone of eight such state laws or regulations created in an attempt to make theU.S. Supreme Court’s 1969 decision in Tinker v. Des Moines IndependentCommunity School District the guiding standard for student journalists’rights.
Under Tinker, school officials may not censor studentpublications unless that publication would materially and substantially disruptnormal school activities or invade the rights of others.
Schools instates without such laws or regulations usually look to the Supreme Court’s 1988decision in Hazelwood School District v. Kuhlmeier, which gives schoolofficials wider latitude for controlling student speech. Under Hazelwood,school officials may censor school-sponsored student publications if they have areasonable educational reason for doing so.
The Pennsylvania Board ofEducation’s proposal would amend Section 12.9 to include references to theHazelwood decision and the Supreme Court’s decision in the 1985 caseBethel School District v. Fraser. The Fraser decision allowed schoolto punish students for speech that was sexually suggestive when that speech wasuttered on campus in a school-sponsored setting.
The proposal also wouldadd the words “or serious” to the provision that permits students to expressthemselves freely unless their expression “threatens immediate (or serious)harm” to their school or community.
Supporters of the proposal say it isa minor change and will help schools prevent costly lawsuits and better respondto threats by students. They say Section 12.9 was last revised in 1984 and thereferences to the two court decisions are only an attempt to include the mostrecent Supreme Court cases involving student expression.
The PennsylvaniaSchool Press Association and the Pennsylvania Newspaper Association oppose thechanges and worry that the proposal is an attempt to give administrators greaterpower over student publications.
“Our argument is that Fraserand Hazelwood didn’t overrule or overturn Tinker, thereforeTinker still needs to be the guiding standard,” said George Taylor,executive director of the Pennsylvania School Press Association. “All of ourregulations are based on the Tinker language. Our great concern is thatif the school board is allowed to cite those cases [Hazelwood andFraser], the next round of revisions will allow schools to operate underthose decisions.”
Taylor said the PSPA and the PNA are fighting theproposal by publicizing it, and he said members of both groups plan to testifyat future meetings of the Independent Regulatory Review Commission, which heexpects to be held within the next six weeks.
SPLC View: Despite schooladministrators’ justifications or explanations, the bottom line is thatincluding references to the Hazelwood and Fraser case inPennsylvania’s student free expression regulation has nothing to do withshielding a school district from liability and risks seriously weakening thefree speech rights of that state’s high school student journalists. It shouldcome as no surprise that the proposal comes on the heels of several censorshipcases in the state where students, to the frustration of school officials, haverelied on the regulation for protection. Pennsylvania residents should maketheir voices heard on this issue.