September 2013 podcast: How well do high school administrators know the First Amendment?

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Audrey Cunningham of Hiram College talks with Student Press Law Center Executive Director Frank LoMonte about her survey of high school administrators’ knowledge of the First Amendment.

Frank LoMonte: It is back to school time for the 2013-2014 school year and along with teaching Media Law 101 to their own students, a number of journalism educators are going to find themselves teaching Media Law 101 to their principals as well, often breaking in new administrators because of the high turnover among principals and assistant principals and superintendents. And that’s what we’re here to talk about on the Student Press Law Center monthly podcast. Thanks for being here with us. I’m Frank LoMonte, executive director of the Student Press Law Center and we’re here with professor Audrey Cunningham to talk about her research on the First Amendment and media law knowledge of high school principals and how that comports with the actual law.

Before we talk about that, just a little bit of background, professor Cunningham presented her research at the recently concluded AEJMC National Convention here in Washington. The AEJMC is the umbrella organization over college journalism educators and it’s really important to point out a resolution that passed unanimously by the AEJMC in this, the 25th anniversary year of the Supreme Court’s Hazelwood v. Kuhlmeier decision – that landmark ruling that rolled back the First Amendment right of students working in curricular settings like a class-produced student newspaper. Well, the board of the AEJMC unanimously decided to recognize this anniversary with a resolution that declares that it is the belief of those who teach journalism at the college level, that there is no legitimate educational purpose served by censoring student journalism just because it reflects unflatteringly on school policies, because it discusses sensitive issues or because it voices challenging opinions. And that’s an enormously powerful sentiment because the Supreme Court in Hazelwood said that schools could permissibly censor for legitimate pedagogical reasons, well we now have the people who know best, the teaching and practice of student journalism, unanimously coming together and saying that there is, in fact, no legitimate pedagogical basis for the bulk of the justifications that schools regularly give when they censor student journalism. Definitely expect to see that resolution cited in court again and again, the next time a Hazelwood case is litigated.

So, with that, I want to throw it to Audrey Cunningham to talk about her research and the paper that she delivered at the AEJMC titled, “What High School Administrators Know and Think They Know About the Fourth Estate.” Audrey Cunningham is an assistant professor of communication at Hiram College in Ohio. She’s a graduate of Hiram, this is a homecoming for her. She has a master’s and a Ph.D. from Kent State University, as well as holding an MJE – a journalism educator certificate issued by the Journalism Education Association – so she’s very well versed in the teaching and practice of scholastic journalism, and we’re really happy to have Audrey with us. Thanks for joining us, and I guess maybe start off by introducing what it was that drew you to this subject, where the roots of your interest in scholastic journalism and the law of journalism.

Audrey Cunningham: Sure. I began being interested as a little, nerdy, high school journalism student, and I say nerdy because I was always sort of interested in scholastic journalism, and you couldn’t get me out of the newspaper room in high school. So, I was really interested in that, and I remember our journalism teacher kept telling me, “We’re really lucky that we haven’t had to deal with any censorship, and here comes another administrator and we’ll have to come across paths with that person and determine whether this is the year.” In high school, we had three different head principals in my four years of high school. So, I kept thinking every year, “Oh gosh, this is the year.” So, we became very well versed in Tinker, very well versed in Hazelwood and luckily because we had very good advising, I think, and because we had such a great product, we never encountered censorship from any of the administrators. And, I’m from Southwest Ohio originally, which is – if you go on the Student Press Law Center’s website and look at some of the news flashes, you can see that there’s been, I wouldn’t say a hotbed of activity of administrative censorship, but there certainly has been a decent amount of administrative censorship of student media there. So, it was prevalent. I felt very fortunate.

And fast forward into college and then into graduate school, I continued to be interested in trying to find my research path and I thought, “This is something that really, I’d like to know more about.” And I really wanted to know, why? Why do administrators censor? We speculate, we think maybe they just don’t like the content, they think it’s inappropriate, but I kept thinking maybe they just don’t understand Hazelwood as they’re taught in graduate school or as they’re told about it. And I had a really interesting experience in graduate school – I’ll try not to give away too much – but, I was in a school law class and it was mostly people training to become high school and middle school administrators, and the professor started talking about Hazelwood and censorship and actually handed out a document essentially explaining to us – I was part of that audience – how we would go about censoring a controversial story in our school newspaper. And I thought, “Okay, maybe there’s something there. Maybe it’s the training, that they’re just not understanding the law.” So that’s where I kinda started digging a little bit deeper, y’know, what is it that’s going on? And I’ve done some other research too, what exactly are they censoring, but this study really focused on why they are censoring.

Frank LoMonte: Just to go into the methodology a little bit, you actually took a quiz that lives on the website, where we asked some foundational questions testing people’s knowledge about the first ammendement, about privacy law, about some of the kind of commonplace legal topics that would come up in the publication on a newspaper or in the broadcast of over-the-air student media. And, you sort of applied this to administrators. I guess, talk a little about the methodology and what your takeaway was.

Audrey Cunningham: I looked at how administrators perceived what they thought, essentially what they thought they knew about the First Amendment. So, how much do you think you know compared to another educator or another administrator. And, more than likely, they thought they knew more than the average person and more than the average educator, but not necessarily more than the average administrator. And I also give them a knowledge test, sort of an abbreviated version of the Student Press Law Center’s quiz – thank you again for letting me use that – just to see how much they thought they knew about the First Amendment, and specifically how much they knew about free press rights. I gave them this little ten question quiz. In addition, I also gave them an idea of a story that could possibly come across their desk, or that they maybe heard about being printed in the school newspaper, so sort of a hypothetical, and I asked them, “How much, or how likely do you think you would be, to censor this?” Other questions that might be relevant than an SPLC audience would be, I wondered how much they supported the First Amendment specifically for students or for people who weren’t 18 years old. So, I asked them questions like, “How much do you agree with this statement: free speech rights should not be the same for students under the age of 18?” So those are kind of the variables I looked at and how they compared and also how they would predict this tendency or this propensity to censor this story, this hypothetical story.

Frank LoMonte: There are a lot of really fascinating takeaways from your findings, but one that I wanted to zero in because it was so pronounced was, you found that there was a significant gap between perception and reality when it came to protecting the privacy interests of minors, and that came out both in your hypothetical story about teen pregnancy, and also very much so in a question you asked about covering a juvenile court proceeding in which it turns out that a minor was involved in felony-level behavior, but in juvenile court, and the minor’s identity were to come to the attention not of a student media organization, but for a professional media organization. Of course, the right answer to this is that it is constitutionally protected to publish lawfully obtained information, even about juveniles, that’s been litigated through the Supreme Court. We know that the First Amendment protects the right of a professional newspaper to comment on a juvenile crime, even if it means giving away the identity of a juvenile and then it comes down to a policy decision whether they do so or not. But it was really fascinating that the principals had just a much more protective attitude on that point and then the point about teen pregnancy that didn’t exactly square with the law.

Audrey Cunningham: Right, yes. And those were kind of the two questions that the majority missed. So, if I were to explain the percentage of people who answered the questions correctly. So, 17 percent of administrators answered the question about a teenage girl – a minor – engaging in some pretty significant illegal activity, they actually got that one correct – that’s a very small percentage of my sample. And roughly 44 percent answered the question about a principal being able to censor a story about teen pregnancy correct. So, they thought a colleague in a nearby school who’d censored an article about teen pregnancy was correct in doing so. Which again is really interesting…

Frank LoMonte: Yeah there’s some really interesting, because they’re both rooted in this idea that it’s the job of administrator to protect the student in the story and the audience against even truthful and accurate information, and I think that that’s a very interesting caution for people who are teaching and advising in this field, that they may be up against in four out of five cases anyway. They may be up against a principal who is more disposed to be protected than even the law might allow.

Audrey Cunningham: Yes, absolutely. And there was another question that I thought was kind of interesting that we sort of touched on. And that was, whether or not it would be acceptable for students to run an editorial about, kind of criticizing a decision about the changes to the school’s curriculum. And roughly half the administrators got that one correct and if you look in comparison to some of the questions where 90 plus percent answered that correct, there seems to be a disconnect there between exactly what you’re saying, sort of this tendency, this desire to protect minors in the school and to protect the school’s reputation.

Frank LoMonte: Right, yeah and the latter justification, the school’s reputation, is sort of perennially the justification when people call the SPLC hotline and report that they’re being censored, we can almost complete the sentence for them because it is typically some variation of, “You’re making the school look bad.” And it’s that image-driven censorship that we think, and I think going back to the AEJMC resolution, I think the journalism education community thinks, is the most illegitimate of all, that is to protect against the disclosure of the existence of dissent or the existence of dissatisfaction with some school policies or programs.

Let me ask you to skip ahead a bit because you referenced a point in your research that I think is really key, which is about what the level of support was in general among principals for the proposition that people under the age of 18 should have the full benefit of the First Amendment and what that might tell us about the administrator community and the kinds of people who are in that field.

Audrey Cunningham: Sure, and I could read a couple of statements from the survey. If we look at a scale of one to five, I’m asking the administrators “how much do you agree?”, one being not at all and five being strongly agree. And they fell right in the middle, which means they don’t really agree but they don’t really disagree, which is kind of troubling. And some of those statements include, “Free speech ought to be allowed for all members of society, even if people have a different opinion or an insulting or threatening opinion,” “free speech should not be the same for students under 18” – a lot of administrators tended to agree with that, and also that the free press rights guaranteed by the First Amendment, they tended to think that those should apply to mainstream media, but not necessarily to student-produced media. Which again – very interesting. However, I asked them a question about “is a free press essential to a functional democracy?” – absolutely. Very high marks there in terms of how much they agreed, but that same free press when you’re talking about a student-produced press, mmmh, they were so sure about that.

Frank LoMonte: Very interesting. Y’know, one of the things I remember going back to the demographic composition of your research, there were actually quite a lot of people in the administrator community who had come up through the ranks as teachers of English, which made it particularly noteworthy because you would think that people who I guess made their living in writing and literature as being people who might be disposed to be especially forgiving of or supportive of freedom of expression, and yet maybe not universally. And so, I guess drawing Audrey both on the research that you’ve done and also on your own experience in sitting in one of those training sessions we saw administrators essentially being given a how-to manual on how to censor, what are some of your thoughts or takeaways in terms of what this is telling us, if we conclude that there’s a gap between administrators beliefs and realities when it comes to the law of the First Amendment and the law of privacy? What is this telling us we need to do?

Audrey Cunningham: Well I would say that one other finding I found that’s notable, is that administrators who scored higher on all of the First Amendment knowledge questions, also reported a lower propensity to censor this hypothetical story. So, what the kind of suggests to me kind of in concert with some of the other findings, is that those who know more about it and actually legitimately do know more because I tested their knowledge, tend to understand that censorship is not necessarily the correct avenue, if you will. I think there is a knowledge gap. The source of the knowledge gap – I’m not entirely sure. I certainly believe that administrators, at least in the state of Ohio and I’m pretty sure in other states, have to have a Master’s degree to go on to become a principal, so they may be taking a course where they’ve been misled. Or, perhaps they’re just getting kind of a nutshell, for example, “Hazelwood says you can censor,” “oh, okay.” So they’re not getting the whole story and seeing some of the other things we must consider when one of these stories maybe comes across your desk. I think the knowledge gap is quite significant and I think that’s quite troubling. I think there’s other cases that administrators are just hearing a soundbite or a nutshell statement such as Bethel v. Fraser, Morse v. Frederick, and I think there’s some real kind of misinterpretation going on somewhere, either at the education level where they’re being education or just in their own sort of problem solving or trying to get their head around what to do, they’re not necessarily considering everything. It’s sort of understandable, administrators certainly have a lot of hats to wear and a lot of responsibilities so when they’re just taking bits and pieces of legal precedent and not applying them correctly, that seems to be the issue.

Frank LoMonte: And, I would say by the way I think you’re quite right on on that observation, that after all you do have to be a generalist. You’ve got personnel issues, you’ve got special ed issues, you’ve got transportation issues, all those things within the bundle of concerns, so the amount that you’re about to focus on press freedom and the First Amendment is a pretty small minority of your attention. We observed that as well among school attorneys who by their nature have to be generalists and who don’t necessarily have a detailed and sophisticated understanding of – you mentioned the Morse case, which was the case about being able to censor a student who engages in pro-drug advocacy speech, but which as you point out some people have shorthanded in a broad brush fashion, or the Bethel v. Fraser case, which was about using strong sexual terms in front of a captive audience in an auditorium setting. And again, people have at times in broad brush ways overstated the whole thing of that case. But, I guess, just by way of wrapup here to the journalism educator community and to the student editor community, so knowing that there are some gaps in the knowledge of school administrators generally and particularly when it comes to the tendency to be overprotective about privacy – above and beyond what the law might provide – any thoughts about how someone should approach trying to build a relationship with an administrator, or maybe I’ve got a new one that that I’m trying to start a relationship with, knowing, having this baseline of research to work from?

Audrey Cunningham: I think that one of the most important things is that, a new administration coming into a school is going to be a little insecure about how he or she is fitting in and a little bit insecure about his or her knowledge, so I think it’s important not to be a know-it-all in that meeting, but to also have done your research. So as a student journalist or as a journalism advisor, make sure you understand the legal precedent and you can fall back on that legal precedent and on some of the really important language from some of these decisions. That’s really important. I also think that it’s a necessity to ear that principal’s trust. As much as I’ve sort of disdained for prior review, I don’t think you have to go there, but just saying to your principal, “Hey, we’re working on a big story about teen pregnancy or about teen drug use in the area and we just want you to know that’s what we’re doing. That’s what we’re working on.” So that when the paper goes to press and it comes across that principal’s desk, he or she is not completely surprised that, “Oh! This is what the students are working on.” I think it’s good to kind of give him a heads up. And also make sure certainly that those stories are very well researched so that you’re not accused of promoting illegal drug use in a story about the ill effects of marijuana, and certainly there are administrators out there who are going to look at that and go, “Well, I don’t care. It’s about marijuana so you must be promoting it.” The story isn’t about promoting drugs, it’s about the negative effects of using drugs. It’s making that very clear to an administrator, so that he or she is not surprised and maybe actually is happy with the piece because it’s true, it’s real, it’s been well researched, the sources are legitimate. So, teaching your students to really follow up with good, reliable sources. And if students being motivated to go out and make those difficult phone calls, I can remember being a high school journalist nervous as all can be to call a local physician, but as soon as you get on the phone and you say, “I’m a high school journalist and I’m trying to do research on concussions or on plastic surgery addiction,” it’s amazing how much they want to help you too.

Frank LoMonte: No, you’re totally right. Well, let’s wrap it up there and again tell folks the name of the paper is “Administrators and the First Amendment: What High School Administrtators Know and Think They Know about the Fourth Estate.” I really want to thank Audrey Cunningham, assistant professor of communication at Hiram College for joining us and for this really important research.

If you are an advisor with any question about the law of the First Amendment, about privacy law, about the legal rights of the student journalist, we hope that you will help yourself to the resources available online at, that you’ll follow @SPLC on Twitter, like us on Facebook and take advantage of the SPLC legal hotline. The best way to reach us is just by email – Look forward to talking to you next month. Thanks so much for listening.