As a growing number of high school students find themselves facing legalbattles regarding censorship, legislators are trying to establish or changeexisting laws regarding student expression and student press rights.
Manyadministrators have argued that their actions to censor are justified, based onthe standard set by the 1988 Supreme Court case, Hazelwood School District v.Kuhlmeier, which limited student free expression rights in some studentpublications.
Students and advisers in Pennsylvaniatemporarily fought off an effort to have their press freedoms limited by theHouse Education Committee, who earlier this year planned to alter the wording inthe “Freedom of Expression” section of the state educationcode.
On March 1, a week before a scheduled vote on revising education coderegulations, the Pennsylvania State Board of Education withdrew the proposedchanges to section 12.9—the free expression section.
Section 12.9 wascreated in 1984. The first part of the section cites the standard established inthe 1969 Supreme Court case Tinker v. Des Moines as precedent for studentmedia. The second part says that students have the right to “expressthemselves unless such expression threatens immediate harm to the welfare of theschool or community.”
In addition to the Tinker reference, theboard proposed adding references to other U.S. Supreme Court decisions,Bethel v. Fraser and Hazelwood v. Kuhlmeier, in November 2003. TheFraser ruling upheld a decision school administrators made to punish astudent for a speech delivered at a school assembly that was deemed vulgar andoffensive, and the Hazelwood ruling permitted schools to impose greaterrestrictions on some school-sponsored media.
Students who worked forHazelwood East High School’s student newspaper sued the school districtafter the principal objected to and removed two articles: one on teen pregnancyand another on divorce.
“Educators do not offend the First Amendment byexercising editorial control over the style and content of student speech inschool-sponsored expressive activities so long as their actions are reasonablerelated to legitimate pedogogical concerns,” the court wrote, ruling thatthe students’ First Amendment rights had not been violated.
The 1969Tinker ruling gave administrators the power to only limit studentexpression that would violate another person’s rights or would cause a“material and substantial disruption” of normal school activities.Pennsylvania’s student press supporters want schools to follow theTinker standard.
The board also proposed changing “threatensimmediate harm” to “threatens immediate or serious harm.”Stephen Shenton, legal analyst for the Pennsylvania School Press Association andprofessor emeritus of communications and journalism at Shippensburg University,said people suggested adding “or serious” because they wereconcerned that the word “immediate” did not encompass all harms.Shenton said some suggested terrorist threats could be perceived as“serious” and not solely “immediate.”
The proposedchanges were reintroduced in February after being postponed. A hearing was heldon Feb. 23 to discuss the changes. Attendees included press organizationrepresentatives and members of the Pennsylvania School Boards Association andthe state board of education.
The hearing resulted in substantial oppositionto the proposed changes and a perception that they would not pass, according toRep. James Roebuck (D-Philadelphia), the co-chairman of the House EducationCommittee. Therefore, they were withdrawn for reconsideration.
The stateboard of education alone has the authority to propose changes to coderegulations. Once proposed, the changes are submitted to the House and SenateEducation Committees for consideration. After the committees have considered theproposals, any new changes are written by legislative subcommittees and are sentback to the education committees for review. At this step the proposed changesare voted on at hearings; if approved, they are sent to the IndependentRegulatory Review Commission for further consideration. Revisions to theproposed changes may be submitted at any step of the process, but can only byapproved by the House and Senate subcommittees.
The legislative director ofthe Pennsylvania ACLU, Larry Frankel, spoke in opposition to the changes at thehearing on behalf of the organization, saying the addition of the Hazelwoodand Fraser references would limit the Tinker reference andtherefore the rights of public school students.
“Adding this referenceto the existing regulation sends a signal that the Commonwealth of Pennsylvaniano longer fully respects the First Amendment rights of students,” Frankelsaid.
Shenton agreed, saying that “or serious” is not legallydefined and could allow schools to create their own interpretations and limitstudent expression in student media.
According to a report on the hearingpublished by the Education Policy and Leadership Center, some committee membersproposed “clarifying that action may only be taken if a student threatensviolence.”
The Chapter 7,11, and 12 committee is a subcommittee of theHouse Education Committee and is in charge of deciding whether to alter theproposed changes, keep them as is or drop them completely. The changes wouldthen go to the House Education Committee for review.
The proposed changeswill be dropped if the board does not produce a final form of the regulation byDecember 2005.
Sen. Jeanette White (D-Windham) introduced a bill inVermont that would guarantee press freedom rights to students working forschool-sponsored publications.
The proposed legislation, Freedom of Speechand Press Rights for Students, would allow students free expression in anypublication that is supported financially by the school, except speech that isobscene, libelous, defamatory or invades another person’s privacy. Thebill would also require schools to adopt standards that allow administrators tocensor speech only when it “materially and substantially disrupts theorderly operation of the school.”
The current model policy distributedby the state’s department of education says that school-sponsoredpublications are “not intended to be a public forum,” givingadministrators greater authority to censor articles they object to. The policyalso references the standards set in Hazelwood andFraser.
Helen Smith, director of the New England Scholastic PressAssociation, is pleased with the proposed legislation and called it“crucial” to that area. Massachusetts is the only state in theregion with an anti-Hazelwood law, enacted in 1988.
“It’sbeen all these years since anything substantial really happened in NewEngland,” Smith said.
The bill was introduced in the EducationCommittee on Feb. 22. A hearing was held for it on March 8. No votes are plannedfor the near future.
A bill was also introduced in Michigan by Sen.Michael Switalski (D-Roseville) on Feb. 3 that would prevent schooladministrators from censoring articles unless they violated certainrestrictions.
“A school board, school administrator, or school employeeshall not subject a [student publication] to prior review or prior restraint,except [if it is] obscene as to minors; [a] defamation or invasion of privacy;or [poses] a clear and present danger of [illegal or substantially disruptiveactivity],” the bill states.
The inspiration for Switalski’s billcame from former Utica High School student Katy Dean’s lawsuit againstUtica Community Schools after her principal, Richard Machesky, removed herarticle and an accompanying editorial from the school’s newspaper, TheArrow, hours before the paper went to press. Machesky told Dean he removedthe articles because they were factually incorrect and lacked a balanced pointof view.
Dean’s article was about a lawsuit that a local resident hadbrought against the school district with his claim that idling school buses inthe district’s garage had contributed to his lung cancer and otherillnesses. In her article, Dean included scientific studies and experts’comments on the effects of diesel exhaust on a person’s health, but thearticle did not contain statements from school officials because they hadrefused to comment on the situation.
The judge ruled in favor of Dean,stating that student journalists “must be allowed to publish viewpointscontrary to those of state authorities without intervention or censorship by theauthorities themselves.” The judge also noted that because The Arrowwas a limited public forum, the publication had greater rights afforded toit than those established in Hazelwood.
Gloria Olman, KatyDean’s former newspaper adviser, helped Switalski’s staff write thebill.
Switalski’s legislative assistant, Brad Comment, said thatSwitalski wanted to protect students’ First Amendment rights through theproposed legislation. Because Switalski is a former journalist, Comment added,he understood firsthand the importance of such rights.
The bill was sent tothe Senate Education Committee on Feb. 3. On April 14, a public hearing was heldto allow committee members and student press advocates to discuss thebill.
Switalski, Olman and Jane Briggs-Bunting, an attorney and the directorof the School of Journalism at Michigan State University, each spoke in supportof the bill at the hearing. No students attended because the bill’ssupporters were notified of the hearing just 24 hours prior to it and did nothave enough time to rally support, Olman said.
“Who on this panel woulddefend the right of school administrators to censor constructive students’criticism of school policies?” Switalski questioned the committee.“Surely we as a legislature believe that open and honest debate is thesurest way to achieve good policy. When respectfully done, doesn’t thatapply to students, too?”
“Censorship is the tool of tyranny. Theopen exchange of ideas is the way of democracy,” Switalski added.“[This bill] supports our fundamental values by granting studentpublications First Amendment rights within reasonable limits.”
According to Comment, the chair of the committee, Sen. Wayne Kuipers(R-Holland) said at the hearing that he “does not foresee a vote on thebill in the near future.”
Comment said the committee’s mainconcern was that the bill would not give administrators enough control and wouldgive students too much freedom.
Jeff Cobb is the legislative assistant toSen. Gerald Van Woerkom (R-Muskegon), who opposes the bill.
According toCobb, Van Woerkom expressed several concerns at the hearing.
Van Woerkom, aformer student newspaper adviser and principal, said the bill did notspecifically state what would or would not be permitted in student newspapers.Van Woerkom said that some articles are inappropriate and should not bepublished because they are hurtful to students, faculty or other staff members.Van Woerkom added that he was concerned that the bill did not allow the schoolto have the final determination on those types of articles.
“Weobviously support free speech and we don’t think that legitimate newsstories should be censored,” Cobb said. “But an example [VanWoerkom] used is that when he was an adviser, one of the students wrote a parodymocking one of the school janitors. [Van Woerkom] said, ‘We can’tpublish that [article] because it would be hurtful.’”
Cobb saidVan Woerkom also said that if schools are prevented from having the final say onstudent newspaper content, schools might get rid of the newspaper altogether.Cobb said Van Woerkom does not want to see that possibility occur because hebelieves the student newspaper is a valuable teaching tool for students.
“Some school districts will say, ‘We’re paying for [thenewspaper] and we don’t have any control anymore, [so] maybe we’lljust forget about it,’” Cobb said.
Cobb said he does not know ifVan Woerkom would support the legislation if his concerns were addressed, butsaid his office will be working with Switalski’s on the bill’swording. Cobb added that he does not know when changes will be made to the billbecause Kuipers opposes it and does not seem to be in a rush to move it forward,Cobb said.
Kuipers’ press secretary did not return calls seekingcomment.
Olman, who expressed disappointment with the hearing, said supportneeded to come from Republican Senators for it to pass. Olman also said shebelieved the committee was opposed to the bill prior to the hearing.
However,Olman said she will not give up on the bill.
“We need major help [togarner additional support for the bill],” Olman said. “I will notgive up the fight for First Amendment rights for all citizens. None of us can.We have work to do.”
Comment said that though no progress was madeon the bill, the hearing was a success because it involved a“lively” debate.
“We felt that our voice and the voice ofstudents were heard,” Comment said. “Switalski looks at [thehearing] as a victory, one battle in the war. Our point was definitely made: toexpand [students’] First Amendment rights while [still] maintainingsupervision.”
Jack Dvorak, director of the High School JournalismInstitute at Indiana University, said anti-Hazelwood bills are beingintroduced to address the lawsuits students have filed against the schools thathave censored them.
“Some recent [high school censorship] court caseshave contributed to a concern [among student press advocates],” Dvoraksaid. “Since most people in schools—administrators, teachers andstudents alike—are interested in avoiding long [legal] battles, it makessense to develop state statutes that allow for student freedom of expression inschools.”
Dvorak called the introduction of anti-Hazelwoodlegislation a “political” issue, noting Indiana’s twofailed attempts at getting such legislation passed.
Jeff Browne, director ofstudent media at Colorado State University and the former executive director ofthe Colorado High School Press Association, said the standards in Hazelwoodand Fraser should never be used as standards for student press.Browne said Tinker—the standard applied in anti-Hazelwoodlaws—gives the “benefit of the doubt” to students byallowing them to express themselves freely in the press. Colorado is one of sixstates that has passed anti-Hazelwood legislation; the others areArkansas, California, Iowa, Kansas and Massachusetts.
“The[Hazelwood and Fraser] standards don’t concede that studentjournalists have the ability to form legitimate opinions or that those opinionscan be presented in a mature and thoughtful manner,” Browne said.“They assume that administrators can best decide what students read,write, and, ultimately, think. If journalism is included as a legitimate courseof study in [a] school, to allow anything other than full First Amendmentfreedoms is an abrogation of the school’s purportedcurriculum.”
The National Scholastic Press Association’sexecutive director, Tom Rolnicki, agreed, saying that Tinker provides“a workable standard for students to understand and abide by as theypublish.”
Vanessa Shelton, director of Scholastic Journalism Programsat the University of Iowa, called anti-Hazelwood legislation “amajor step” in aiding students in becoming active members in a democraticsociety.
“School administrators and boards are overwhelmed alreadywith a myriad of responsibilities. It should be a welcomed relief [to not take]on prior review and [let] students take responsibility for their work—asthey do with most of their school work,” Shelton said. “Tinkerallows students to be the best that they can be by exercising their sensesof responsibility as citizens, without fear of reprimand.”