RHODE ISLAND — A settlement agreement was announced Monday in favor of a student whose medieval-style senior photo was censored from a high school yearbook after the state commissioner of education ruled that the school’s decision to censor did not meet the standards set by the 1988 U.S. Supreme Court decision in Hazelwood v. Kuhlmeier.
Senior Patrick Agin submitted a picture to Portsmouth High School’s yearbook, The Legend, last year in which he wore a medieval chain mail coat and a sword. Agin is a member of the Society of Creative Anachronism, an organization that studies medieval history and participates in recreation activities.
Principal Richard Littlefield argued that the photo violated the school’s “zero tolerance” policy on weapons and refused to allow it to be published. He then offered Agin the opportunity to purchase an advertisement in the back of the yearbook where the photo could be published. Agin refused.
The Rhode Island American Civil Liberties Union filed a lawsuit on Agin’s behalf earlier in the school year against the Portsmouth School Committee, stating that Agin’s freedom of speech had been violated when his photo was not allowed to run.
A federal district court judge heard the case, but sent the dispute to the Rhode Island Department of Education. The Rhode Island commissioner of education ruled in favor of Agin, stating in a written opinion that the yearbook allows students “to use senior portrait photographs as a means to express their interests and hobbies.” It was also made clear that Agin’s costume was not a violation of the school’s “zero tolerance” policy by comparing the photo to others that had been published.
The decision notes that in the past, photos have been published in other sections of the yearbook with objects such as a corncob pipe, liquor bottles, toy guns, bows and arrows, swords, knives, color guard rifle shapes and an axe made of foil.
The Hazelwood decision said school officials can censor high school publications if they are not designated as public forums for student expression, and if the officials can demonstrate reasonable, educational concerns for their censorship.
The commissioner found that although the yearbook was not a public forum, the image did not meet the educational concerns requirement necessary to justify censorship under Hazelwood. The decision also concluded that allowing the photo to appear as an advertisement rather than in the senior section was an “arbitrary and capricious” decision.
Thomas Connolly, Agin’s lawyer, said the school’s “ad hoc” decision-making over the photo was a major concern in this case.
“[The school’s decision] doesn’t really allow people to know what to expect, what kind of things they’re allowed to say,” Connolly said. “Whether the [speech] form is public under Tinker or non-public under Hazelwood, you have to make it clear what it is you’re…not allowing.”
The fact that Littlefield made the ultimate decision to reject the photo makes the censorship a result of “state action,” the commissioner’s decision said. Had the student editor of the yearbook chosen to not run the photo, there would be no First Amendment claim, the decision noted.
“Even if you are dealing with something that is a non-public forum, there’s still some kind of [legal] limit on the discretion of the decisions made,” Connolly said.
Sylvia Wedge, chair to the Portsmouth School Committee, emphasized that the “zero tolerance” policy is strict and that the defendants would have appealed, but were financially restricted.
“We’re going to make sure [the prohibition on images of weapons] goes in writing so it doesn’t happen again,” Wedge said. The issue is currently on the agenda for the school’s policy committee.
The settlement states that in return for the ACLU dropping its lawsuit, the school district will pay $2,000 in legal fees. The district has also agreed to not appeal the ruling and publish Agin’s photo in the yearbook.
By Erica Hudock, SPLC staff writer