Within the first 48 hours, the Student Press Law Centerreceived 143 calls from the media. The calls from concerned students andadvisers were off the charts.
There was no Internet back then when, on a snowy day inJanuary 1988, the U.S. Supreme Court decided Hazelwood School District v.Kuhlmeier. The case upheld the decision of a public high schooladministrator in Missouri to censor student newspaper stories on teen pregnancyand divorce because the publication did not have a policy or practiceestablishing it as a public forum. The censorship was considered a reasonableeducational response.
Former SPLC Executive Director Mark Goodman said the Hazelwooddecision pulled the rug out from underneath free speech advocates.
“The immediate reaction was, ‘how do we portray this,’”Goodman said. “It was in the weeks and days that followed that we were suddenlyconfronted with the fact that we’re in a brave new world.”
Goodman describes the years before the decision as the“golden years,” when courts relied on Tinker v. Des Moines IndependentCommunity School District. Under the Tinkerstandard, administrators could not punish student speech unless it would causea “material and substantial disruption of normal school activities.”
In 1988, the Supreme Court wiped that protection away formany student journalists.
Within 48 hours, Goodman and other advocates decided thatadministrators and legislators had to be pressured to start conversations abouttheir student media policies.
“Student journalists and media advisers historically had notbeen politically sophisticated,” Goodman said. “They didn’t really understandhow lobbying for legislation worked. The first challenge we had was to pointout how this could make a difference.”
The Hazelwood decision left itto local districts and state legislatures to create enhanced protections forstudent journalists. State laws provide a separate set of rights that were notimpacted by the Supreme Court’s decision. Momentum picked up in the late 1980sand early 1990s as states passed student expression laws in reaction to Hazelwood.
Seven states have such laws, protecting public high schoolstudent publications from censorship: Arkansas, California, Colorado, Iowa,Kansas, Massachusetts and Oregon. Washington, Pennsylvania and the District ofColumbia have protection for student speech in their administrative codes.
Goodman said in the hours after Hazelwood,California’s existing law became the template for legislative change.
California is the only state that had a student freeexpression law before Hazelwood. Passed in 1977,California’s law was edited over the years to include additional protection forteachers and school personnel in public high schools and charter schools.
The first time the legislation was proposed, it didn’t pass.The Journalism Education Association, advisers and legislators began pushingfor a state law to help student expression after several high school studentswere censored. Retired journalism adviser Gil Chesterton said several yearslater the bill passed.
“Support is the key to the whole thing,” Chesterton said. “Imean, even with the state law there are ways administrators can impact studentsby firing advisers or delaying the publication by going to court.”
Chesterton said California’s law isn’t well known to newadvisers. He hears complaints from advisers who are pressured by administratorsconcerning publication content.
“That pressure trickles to students. Advisers fear theaction of students could cost them their job,” Chesterton said.
While California’s law is more than 30 years old, studentfree expression is still a struggle.
Chesterton said one student newspaper ran an investigativepiece about the district. The next year, the adviser was reassigned to teachfive freshman English classes.
“These people don’t even know their rights,” Chestertonsaid. “Advisers and students need to come up with publication guidelines toavoid more issues.”
In 1990, Colorado passed its own student free expressionlaw. The law states, “If a publication written substantially by students ismade generally available throughout a public school, it shall be a public forumfor students of such school.”
The law capitalizes on a free-expression loophole left by Hazelwood:making a publication a public forum.
“That’s something we realized in the beginning: loopholes,the things that still made protection of student press freedom possible,”Goodman said.
The Journalism Education Association was having a stateworkshop that fall and that’s all Colorado advisers could talk about, said MarkNewton, now national president of JEA.
Newton said the law is a way to train kids as they would betrained for anything else in life.
“Students have to be trained in the English language, intools for shop class, math,” Newton said. “If we teach kids. ‘here’s what youneed to do and here is the community,’ nine out of 10 times, they’re going todo what’s right.”
Newton suggests student journalists have a conversation withadministrators about policies and the state law, so they know what can bepublished and what may get them into legal trouble.
“You need to know where you stand and know where you cango,” Newton said. “At the very minimum teachers and students need to know wherethey stand.”
In 1993, professor Bruce Plopper suggested a student freeexpression bill to a legislator. It failed.
Censorship of the student newspaper at Little Rock CentralHigh School brought Plopper’s suggestion back into the light. Student editorsat Little Rock Central were threatened with suspension if they publishedcontent about gangs and vandalism.
In defiance, students produced an “underground” newspaperissue spurring free expression advocates to meet with legislators. Supportershad about seven months to solidify the bill and gain support. Arkansas’ StudentPublications Act passed in 1995.
Plopper isn’t happy with the final language of the law buthe said school administrator organizations were threatening to lobby againstthe bill if the language didn’t change. Fearing a loss of support, advocatesagreed to water down the bill. The act requires local districts to create theirown student publications policies, which sometimes resulted in morerestrictions on student speech.
“One administrative association sent out model guidelinesfor everyone to work from when creating policies in their district and, ofcourse, they were very conservative and many gave power to censor material,”Plopper said.
The law states districts are supposed to consultpublications advisers when creating the policy. Yearbook adviser Beth Shullsaid she and fellow advisers fought with their districts to be included in thedrafting plans.
“I remember my superintendent at the time saying that hejust wanted everyone to be calm,” Shull said. “In my district, it was a realfight to get my policy to reflect the freedom the students needed.”
Shull, who helped Plopper lobby for the bill, said someadvisers were sent only an after-the-fact copy of the policy.
“It said, ‘here’s what we’ve come up with and deal withit,’” Shull said.
The new effort, Plopper said, is educating the educatorsabout student free expression and making sure every district has a policy.Plopper said small communities with inexperienced advisers are hurting becauseadvisers are less knowledgeable about the law.
In 2007, Oregon became the most recent state to pass astudent free expression law. Goodman said there are several reasons for the12-year gap after Arkansas. Legislatures became more conservative. Schooladministrators become more effective at stopping legislation. And thenColumbine changed the landscape.
After April 20, 1999, the day two students opened fire atColumbine High School in Colorado, Goodman said legislatures began seeingstudent rights through the lens of violence.
“Students’ rights became equated with the risk of violence,”Goodman said. “What happened as a result with that single incident was a pushto curtail students rights.”
Goodman said legislation was still proposed but there wasn’tan enthusiastic push as there was right after Hazelwood was decided. Theeffort is being revitalized, as American values shift to more discussion ofcivic education and politics, Goodman said. The younger generation is becominginvolved with legislation and politics, as proven by the presidential electionof 2008, Goodman said.
Hawaii, Wisconsin and Illinois pushed student expressionbills all the way through their legislatures, only to have them vetoed by theirgovernors.
“Because I am confident that existing Department ofEducation policies sufficiently protect students’ right of expression, Ibelieve school officials should be given the benefit of the Hazelwooddecision,” former Hawaii Gov. John Waihee wrote in vetoing the billthere.
Former Wisconsin Gov. Tommy Thompson vetoed that state’s billin a surprise move, arguing that local school boards should set their ownstandards.
Bills in several other states fizzled early in the process.Just this year, legislation was proposed in Nebraska and Vermont but died incommittee.
Yearbook adviser Beth Shull remembers when she lobbied forlegislation in Arkansas.
“I think the biggest fear of any adult when talking aboutstudents having rights it that they’re just teenagers, said Shull, adviser atWarren High School. “Who knows what students are going to say but they’re areaware of their responsibilities.”
Oregon implemented two free speech laws to protect studentjournalists in 2007. One applies to high schools and the other to college anduniversities.
Rob Melton, interim executive director of NorthwestScholastic Press, said he tried for 15 years to enact legislation. FinallyMelton found the puzzle piece he needed: a state representative with ajournalism background.
“The legislature that particular year wanted to do somethingthat would be student centered,” Melton said. “The best thing I was able to dowas find students and parents from more conservative parts of the state to talkabout what would happen if their voice was silenced.”
Former state Rep. Larry Galizio read about a Washingtonstate representative who brought his passion for student free speech to thelegislature there.
“It showed me that we’re not reinventing the wheel,” Galiziosaid. “The republic that we have is the free exchange of ideas and injournalism, not all students who are writing for the student newspaper oronline paper will become professionals but it’s such a cornerstone for oursociety. To hold them to a radically different standard is problematic.”
Melton said the biggest challenge now is administratorsaren’t aware of the rules pertaining to student publications and as a resultoften censor students.
“Schools are a critical part of sustaining a democraticsociety,” Melton said. “What people must do every generation is create peoplewho live and think in a democratic society. When you have a free speech law,it’s the opportunity to teach each generation to talk about issues.”
Wisdom of actions past
Twenty percent of the United States has student expressionprotection with the help of a state law or education code provision. Goodmansaid he wants to see 15 to 17 states enact laws in the next ten years to changethe mindset of Americans. Censorship will still happen, he said, but laws arean excuse for legislatures to pay attention to scholastic journalism in publicschools.
States that do not have student freedom of expression lawsneed to place pressure on legislators and gain support from both advisers andstudents, Goodman said. The key is keeping momentum.
Melton said democracy and free speech is a foundation forthe U.S. and that doesn’t exclude students.
“The real argument is when some voices are allowed to beheard and others are not,” Melton said. “Full, enriched conversations can’thappen with that.”
Goodman said enacting a law isn’t just a case of writingyour local representative.
“You can’t just go and say, ‘we really want this law,’”Goodman said. “You have to make the case and marshal your resources to justifythis issue being a priority. Then you have to anticipate opposition.”
Shull said Arkansas is considered a conservative state so,“why do they have a student free expression law?” She laughs; the key she sayswas using lobbyists from advocating organizations and students sending lettersto their legislators.
“Those letters had to have an impact, especially for thelegislators from our district, because they knew those kids, knew theirfamilies,” Shull said.
Goodman said student expression laws are not an issue of thepolitical left or right, because it’s not just one side being censored.Legislation needs support across the spectrum. Goodman warns it takes energyand effort from a group of people, not just one person.
Galizio, now president of Clatsop Community College inAstoria, Ore., said there is one big difference that could impact the outcome:professional and intellectual interest. Regardless of the legislation, ifsomeone is interested, that helps, Galizio said.
“Don’t underestimate the strength of the opposition becausethere’s always concern on the part of school board members and principals,”Galizio said. “Communicate and work with the opposition throughout the process.Show them where it’s worked in other states.”
By Emily Summars, SPLC staff writer