Pa. weighs changes to expression policy

PENNSYLVANIA — When high school journalists return to school in the fall, they could face new restrictions on what they are allowed to publish.

Under proposed changes to Section 12.9 of the Pennsylvania Code, administrators can censor content in a school-sponsored student publication if they have an educational reason for doing so. If they think the publication expresses a “serious” threat, it could be banned. And if they think language is vulgar or offensive, the student responsible could be punished. 

Though Pennsylvania has traditionally given student journalists greater press freedom than required by federal court rulings, the proposed changes, which are expected to be voted on by legislative committees and the state attorney general in September, could strip students of the free press traditions they have enjoyed.

One of the proposed changes to the policy would add references to the U.S. Supreme Court case rulings Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier. The Fraser ruling gave schools the right to punish students for using vulgar or offensive language, and the Hazelwood ruling allows schools to censor some school-sponsored student publications for “legitimate pedagogical concerns.”

Under the current regulation on student expression, administrators can only censor publications if they reasonably believe the publication would lead to a material and substantial disruption of normal school activities or if the content invades the rights of others. The regulation references only the 1969 U.S. Supreme Court ruling in Tinker v. Des Moines Independent Community School District.

The Pennsylvania School Board Association proposed the changes in a letter to the state Board of Education in December during a public comment period for proposed minor grammatical changes in the policy.

“This [current] regulation was adopted in 1984 and does not reflect the U.S. Supreme Court decisions in 1986 in Bethel School District v. Fraser, and in 1988 in Hazelwood School District v. Kuhlmeier,” wrote Timothy M. Allwein, assistant executive director of the association. “Both of those decisions placed restraints upon student speech within the school setting, which are not reflected in the current regulation.”

When the Independent Regulatory Review Commission, a 5-member panel appointed by state legislators and the governor to review proposals to regulatory changes, incorporated the School Board Association’s suggestions, free press advocates around the state began to worry. 

The Pennsylvania Scholastic Press Association and the Pennsylvania Newspaper Association have vocally opposed the changes, which they fear will chill student expression.  

“Schools must continue to provide opportunities for students to consider and discuss alternative views, even ones that make some people uncomfortable, as long as those views do not threaten immediate harm to the school environment,” said Teri Henning, media legal counsel for the Pennsylvania Newspaper Association. “Where better to address and discuss ‘controversial’ issues and thoughts than at school where there are educated and thoughtful adults who can help students understand and appreciate the issues?”

Others worry that references to three different Supreme Court cases on student expression, the original Tinker decision, plus the Fraser and Hazelwood rulings, will send mixed messages and could result in litigation or confusion over how the policy should be interpreted. 

George Taylor, the executive director of the Pennsylvania Scholastic Press Association, said the state’s policy has worked well for the past 30 years. He does not see any reasons to arbitrarily stop following the more-lenient Tinker standard for student expression.

“Our argument is that Fraser and Hazelwood didn’t overrule or overturn Tinker, therefore Tinker still needs to be the guiding standard,” he said. “Our great concern is that if the school board is allowed to cite those cases, the next round of revisions will allow schools to operate under those decisions.”

The proposal also would add the words “or serious” to a qualification on student expression. The amended ruling would provide that expression which “threatens immediate or serious harm to the welfare of the school or community” is not protected speech.   

“The First Amendment does not offer any protections to students when they threaten violence against staff or students, regardless how improbable such threats might be,” wrote Allwein of the School Board Association.

Journalism advocates, however, worry that the regulation, which does not mention violence, could be interpreted broadly by administrators who might label controversial topics or divisive editorials as creating “serious harm” to the school. 

REGULATION: 22 Pa. Code Section 12.9