CONNECTICUT ? A Senate bill introduced in Connecticut latelast month and scheduled for public hearing Friday marks another state’sattempt to fortify the legal protection of student publications eroded by theSupreme Court’s Hazelwood decision.
Proposed by the American Civil Liberties Union of Connecticut, SB 1056would prevent students from being punished for their speech, school-sponsored ornot, provided it is not “demonstrably likely to cause material andsubstantial disruption to the educational process” or constitute aninvasion of privacy.
Connecticut is the third state this year ? along with Kentucky andWashington ? to consider student speech and expression legislation.Another bill introduced in Connecticut in January, SB 478, also seeks studentexpression rights, but is focused in scope on off-campus electronic media.
Both Connecticut bills come in the wake of Avery Doninger’s 2007lawsuit, decided in January by a U.S. District Court judge, regarding thenow-graduated high school student’s punishment for disparaging remarks shewrote about school administrators on her off-campus blog. Doninger sought reliefunder the First Amendment, but the court granted qualified immunity to theschool administrators named in the suit, finding that the school did not violateany clearly established constitutional right.
“We were unsuccessful in litigation, so we thought the way to goabout it was with legislation,” Andrew Schneider, executive director forthe ACLU of Connecticut, said. “The courts were not going to be our friendon this one.”
Schneider, like other First Amendment advocates across the country, hasbeen pushing for restoration of student expression rights siphoned off by theU.S. Supreme Court’s 1988 decision in Hazelwood School District v.Kuhlmeier, which greatly increased administrative censorship authority overmany student publications.
Prior to 1988, the Tinker v. Des Moines Independent Community SchoolDistrict ruling was the measure for most student media censorshipcases. The Supreme Court, in its 1969 decision, said students do not “shedtheir constitutional rights to freedom of speech or expression at theschoolhouse gate.” The ruling held that school officials could not punishor prohibit student speech absent a reasonable belief that it would result inmaterial, substantial disruption of school activities or impede uponothers’ rights.
“The Tinker test has been diluted and exceptioned todeath,” said Marty Magulies, cooperating attorney for the ACLU and drafterof SB 1056. “I would like to see Connecticut restore thatstandard.”
While most student expression laws prohibit speech that causes asubstantial disruption to the school learning environment,”disruption” is increasingly being interpreted as”inconvenience,” Magulies said, pointing specifically to the Doninger case.
In the blog post Doninger was punished for, she criticized schooladministrators over a concert scheduling decision and encouraged students andparents to contact the school superintendent’s office to “piss heroff.” This attempt to flood the office with calls, Magulies suggested,constitutes an inconvenience, not a disruption.
“[SB 1056] would restore the rigor and vitality of the old disruptiontest,” he said.
Detractors of similar proposed legislation in Kentucky and Washington oftencite school liability issues and the need for a controlled learning environmentfor student journalists in their opposition to the bills.
SB 1056, like SB 5946 in Washington, explicitly addresses schooldistricts’ liability, saying districts and schools would not be heldliable for any student speech as long as no school official instigated orencouraged unlawful student speech. The bill also protects teachers againstretaliation for refusing to engage in unlawful censorship or for reportingviolations of students’ speech rights.
If passed, SB 1056 would make Connecticut the ninth state to adopt studentfree press legislation. Arkansas, California, Colorado, Iowa, Kansas,Massachusetts and Oregon all have laws restoring to high school and collegemedia the First Amendment protection that was reduced by Hazelwood.Illinois law provides similar protections for college student media only.