NEW HAMPSHIRE –A federal court ruled on March 17 that astudent’s First Amendment rights had not been violated when his seniorphoto of him with a shotgun was banned from the yearbook, because studenteditors–not school officials–had made the decision.
LondonderryHigh School student Blake Douglass sued his school district in October in orderto force the yearbook to publish his photo, claiming the ban violated hisconstitutional rights. Douglass’ photo showed him clad in trapshootingclothing, kneeling with a shotgun propped over his shoulder. Douglass said hewanted to express his enthusiasm for his favorite hobby, trapshooting.
Thecourt’s decision was based on the testimony of Principal James Elefantethat students chose not to publish the photo. Elefante said the students on theyearbook staff voted unanimously against it.
“I find that the studenteditors made the decision not to publish Blake’s chosen photograph; theschool administration did not,” Judge Steven McAuliffe wrote. “Thestudents exercised judgment and discretion, that they were not coerced or undulyinfluenced by anyone, and their editorial decision is not attributable to theschool administration.”
McAuliffe suggested that Douglass might havehad a constitutional claim for violation of his First Amendment rights if schoolofficials, acting as state actors, had decided to ban the photo, but said thestudent editors were acting as private citizens.
In his earlier rulingagainst preliminary injunctive relief, McAuliffe stated, “The FirstAmendment does not restrict the conduct of private citizens, nor is it violatedwhen one private actor suppresses the speech of another.”
DanielleTaylor, the senior yearbook editor, said the staff voted to ban the photobecause students felt Douglass’ photo was inappropriate.
ButDouglass’ lawyer, Penny Dean, said she does not believe student editorsmade the decision.
One student testified that the yearbook editors voted toallow the photo, which disputes the administration’s claim that it was aunanimous decision, Dean said. Dean also said some students were unsure if theywere considered student editors and testified that anywhere from two to 15students were editors at the time of the decision. According to court documents,10 student editors voted on the photo.
Dean added that she and Douglasswere “repeatedly” told by the school that the administration decidednot to publish the photo.
Dean argued that Douglass’ photo should havebeen permitted because it fell within the guidelines of the school’sthen-existing policy governing student publication content.
“We encouragethe use of school-sponsored publications to express students’ points ofview,” the policy stated. “They shall be free from all policyrestrictions outside the normal rules for responsible journalism (the avoidanceof libel, obscenity, defamation, false statements or material advocating racialor religious prejudice).”
Mark Child, regional director of theJournalism Education Association and a yearbook adviser, said he understands whystudent editors might have made the decision to reject the photo, citing therecent cases of high school shooting incidents.
“If an administratorstepped in and said ‘no way,’ that becomes a whole differentissue,” Child added. “Definitely it should be up to the students todetermine content.”
Robert Richards, the co-director of thePennsylvania First Amendment Center, said the Douglass ruling is an example ofwhat he claimed is U.S. courts’ current “trend” toward givinggreat deference to school systems in student speech and student presscases.
“[The trend] is unfortunate,” Richards said.“[These types of rulings] lead to an environment where students are notable to freely exercise their First Amendment rights because the courts havebeen allowing school systems to pull back on that.”
Richards said therulings have led students to censor themselves, because they have grown up in acountry where “their rights have been chipped away.”
“Whenyou live in that type of repressive environment and you go to school in that,it’s not surprising that students [censor themselves],” Richardssaid. “If the student editors [truly] made the decision, they did sobecause they have been reared in censorship and as a result they think‘Oh, this picture’s no good–we have to take itout.’”
The school has since instituted a new policy that bansall props from senior photos, in order to avoid similar lawsuits in the future,according to Elefante. The policy was adopted after the decision was made to banDouglass’ photo, and thus did not affect the outcome of the case.
Dean said if the Douglass family is able to raise enough funds, they mayappeal the ruling to the state’s United States Court of Appeals for theFirst Circuit.
CASE: Douglass v. Londonderry Sch. Dist.,
205 WL 626984. No. Civ. 04-424-SM, slip op. (D. N.H., March 17, 2005)
Read previous coverage
- Yearbook rejects student’s photo The Report, Winter 2004-05