Iowa court finds state's anti-Hazelwood law provides broad protection

IOWA — An Iowa appeals court ruled Wednesday in favor of a former newspaper adviser who was reprimanded by his school, in the first case testing a post-Hazelwood student free expression law.

In 2009, Englishteacher Ben Lange was issued two formal written reprimands from principal DanDiercks at Waukon High School stemming from two editions of the Waukon Senior High School Tribe-unenewspaper. Diercks objected to the April Fools’ parody edition and a Septemberissue that included an article titled “Students Chew, Use Tobacco.” He said theformer was “inappropriate” and the latter triggered complaints that caused“material disruption” to the school district.

Iowa Code section280.22, adopted in 1989 and known as the Iowa Student Free Expression Law, andsimilar laws in other states are commonly referred to as “anti-Hazelwood” statutes. They grant morefree speech rights to student journalists as defined by the Supreme Court in Hazelwood v. Kuhlmeier.

Diercks wrote thematerial is “offensive to the community and disrupts the operation of theschool district in a material and substantial way” – language taken from theIowa Student Free Expression Law describing material not covered by thestatute.

In 2010, Lange suedDiercks and the Allamakee Community School District, arguing the paper did notviolate the Iowa Student Free Expression Law and seeking to have the reprimandsremoved from his personnel file. The lower court granted summary judgment infavor of Diercks and the school district, concluding that the state law providesno greater protection than Hazelwood.Wednesday’s ruling by the Iowa Court of Appeals reversed that decision.

Lange’s attorney JayHammond said the decision recognizes the expanded rights student journalistsreceive in Iowa because of its anti-Hazelwoodlaw.

“When Ben wasreprimanded for allowing the publication of those two articles, we believed thearticles were authorized under the Iowa law and that he was being sanctionedfor something that he was required to let his students do,” he said.

Lange, who no longeradvises the newspaper because of “retirements and staff shuffling,” said he hada hands-off approach with the paper, which he oversaw through May.

“I helped them withthe conventions of English and journalism, and helped them to avoid beinglibelous. And I constantly restated that was my role,” he said. “They ranthemselves, and I was there to make sure it was legal and to make sure it wasproofread.”

Finding the state lawprovides expanded protection for student journalists, the appellate court wenton to rule that the Tribe-une did notfall into any of the law’s exceptions. The decision devotes several pages toparsing and interpreting the Iowa Student Free Expression Law, specifically theword “encourage,” as Diercks and the school district had argued the issuesencouraged unlawful acts.

According to thedecision, Diercks and the district “are imprecise regarding which materialsthey believe encouraged students to engage in undesirable acts.” Looking at thecontent of the newspaper, the court decided the word “encourage” is a moreactive rather than passive word, and the articles did not instigate or incitestudent misconduct.

Hammond gave anexample of what might be considered encouragement for an undesirable action.

“For instance: ‘Wedon’t like the new dress policy in the school, and we suggest that everyoneboycott classes tomorrow,’” he said. “There you are encouraging the students tocause material and substantial disruption to the school.”

The court alsoexamined an argument by the school district that libelous material – which isprohibited by the Iowa law – was printed in the April Fools’ edition.Specifically, the district cited a satirical article about a biology teachertitled “Meth Lab Found in Biology Lab: Matt Breitbach faces criminal charges.”

A banner reading,“This issue is a parody created in celebration of All Fools’ Day. It containsno factual information,” was printed throughout the issue. Further, everyonementioned in the issue signed a release form consenting to their involvement.Both points were considered when the court decided the article was notlibelous.

Lange said the AprilFools’ edition was a tradition dating back before he arrived at the school fiveyears prior to the contested issue, and the consent forms were used in thoseeditions as well.

Diercks and the schooldistrict also argued the paper, which is a monthly insert in the Waukon Standard local newspaper, “failedto maintain professional standards of journalism” under the statute. The courtwrote that Diercks and the school district did not explain how the paper failedto meet those standards.

Student Press LawCenter Executive Director Frank LoMonte stressed the importance of the case asthe first challenge to student expression laws enacted after 1988.

“This ruling clearly affirms that anti-Hazelwood statutes restore the reasonable balance that existed before the Supreme Court threw things out of whack in 1988,” LoMonte said. “This is a gigantic win not just for journalism and not just for the security of good teachers, but frankly, a win for common sense.”

LoMonte, who co-wrote theSPLC’s friend-of-the-court brief in support of Lange, said the decision also has broad implications for studentjournalists in other states with similar laws.

“Even though whatthese students wrote was just lighthearted humor, humor is protected speech,and this decision not only protects the freedom to make harmless jokes aboutthe school but, more importantly, the freedom to talk about serious issueswithout fear that the newspaper will be shut down or the teacher fired,”LoMonte said.

In addition to Iowa,six other states – Arkansas, California, Colorado, Kansas, Massachusetts and Oregon– have passed anti-Hazelwood laws.Legislators in several other states have considered them.

The court directed theschool district to remove the reprimands from Lange’s personnel file since itfound the publication did not violate Iowa Student Free Expression Law.

When reached for theAllamakee Community School District’s reaction, Superintendent Dave Heroldsaid, “It would be inappropriate for me to make a comment at this time.”

The district can askthe Iowa Supreme Court to hear an additional appeal in the case.

Lange, who now teacheseighth grade English and upper-level writing courses, said he is pleased withthe court’s decision.

“Hopefully this willend another distraction … I don’t want to sound like a cliché, but I’m not inteaching to go through court cases.”