PENNSYLVANIA — Just one week before a scheduled vote on revising state education code regulations, the Pennsylvania State Board of Education has withdrawn its proposed changes to section 12.9–changes that some argued could have the potential to restrict student media rights.
Section 9 of Chapter 12, the “Freedom of Expression” section, was enacted in 1984. The first part of the section cites the Supreme Court’s 1969 Tinker v. Des Moines ruling as precedent for student media. The second part says, “Students have the right to express themselves unless such expression threatens immediate harm to the welfare of the school or community.”
In November 2003, the board proposed adding the Supreme Court cases Bethel v. Fraser and Hazelwood v. Kuhlmeier to the Tinker reference. The Fraser ruling upheld the ability of school administrators to punish a student for a speech given at a school assembly that was deemed vulgar and offensive, while the Hazelwood ruling allowed schools to impose greater restrictions on some school-sponsored student media. The 1969 Tinker ruling said administrators could only limit student expression that would violate another individual’s rights or would cause a “material and substantial disruption” of normal school activities. The Tinker ruling is the standard that student press advocates want Pennsylvania schools to continue to follow.
The board further proposed changing “threatens immediate harm” to “threatens immediate or serious harm.” Stephen Shenton, legal analyst for the Pennsylvania School Press Association and professor emeritus of communications and journalism at Shippensburg University, said there was a concern that the word “immediate” did not encompass all harms; for instance, he said, some suggested that terrorist threats could be perceived as “serious” and not simply “immediate.”
The state board of education postponed submitting the proposed changes in November 2004 upon the House Education Committee’s request, saying it was overwhelmed with other legislative concerns. The proposed changes were reintroduced in February.
The House Education Committee held a hearing on Feb. 23 to discuss the proposed changes. Members of press organizations, the Pennsylvania School Boards Association and the state board of education attended the hearing.
The committee planned to convene on March 8 to vote on the proposed changes. However, testimony and comments at the hearing prompted the board to formally withdraw the proposal on March 1 to reconsider the regulation.
Rep. James Roebuck (D-Philadelphia), co-chairman of the House Education Committee, said there was “substantial opposition” to the proposed changes at the hearing that indicated the committee would not have voted approve them.
The state board of education alone has the authority to propose changes to regulations. Once proposed, the changes are submitted to the House and Senate Education Committees for consideration. After the committees have considered the proposals, any new changes are written by legislative subcommittees and are sent back to the education committees for review. At this step the proposed changes are voted on at hearings; if approved, they are sent to the Independent Regulatory Review Commission for further consideration. Revisions to the proposed changes may be submitted at any step of the process, but can only be approved by the House and Senate subcommittees.
The Pennsylvania American Civil Liberties Union opposed the changes. The legislative director, Larry Frankel, spoke on the ACLU’s behalf at the Feb. 23 hearing.
“[Hazelwood and Fraser] limit the breadth of the Tinker decision and circumscribe the rights of public school students,” Frankel stated at the hearing. “Adding this reference to the existing regulation sends a signal that the Commonwealth of Pennsylvania no longer fully respects the First Amendment rights of students.”
The Pennsylvania School Press Association also opposed the proposed changes.
There are no court decisions that define the term “serious,” Shenton said after the hearing, adding that because the addition of “or serious” is unclear and lacks legal authority, the phrase could provide schools with the opportunity to create their own interpretations and therefore endanger student press freedoms.
“Any kind of vague and ambiguous reference like ‘or serious’ is going to have a chilling effect on the ability of students to write, inquire and publish,” Shenton said.
Some committee members suggested ‘clarifying that action may only be taken if a student threatens violence,’ according to a report on the hearing published by the Education Policy and Leadership Center. The suggestion proposed a compromise between arguments for and against the proposed changes.
Edith Isacke is chair of the Chapters 7, 11, and 12 Committee, a subcommittee of the House Education Committee. The proposed changes were withdrawn because people questioned what the term ‘immediate’ meant and how ‘serious’ a harm would have to be, Isacke said.
Isacke said her committee plans to modify the section’s language in order to rid the passage of its ambiguity. The section’s original wording was proposed by the state board of education but written by members of the House Education Committee and the Chapter 7, 11, and 12 Committee, according to Greg Dunlap, legal counsel for the state board of education.
Jim Buckheit, the executive director for the Pennsylvania State Board of Education, said the regulation will first go to the House Education Committee for review after the Chapter 7,11, and 12 Committee reaches its decision on whether to alter the proposed changes, keep them as is or drop them completely.
The board has until December 2005 to produce the final form of the regulation, or the proposed changes will be dropped.
—By Britt Hulit