The Big Chill
When the students at Northrop High School opened the June 5, 1990, issue of their school newspaper, the center pages were blank, except for the words: "This is not a printer's error.''
Those six words took the place of a controversial two-page article written by Jeff Lovell, editor of What's Bruin? Lovell had uncovered evidence documenting theft by a school coach at the Fort Wayne, Ind., high school. But before the paper containing the story went to press, principal H. Douglas Williams censored it.
Lovell had initially set out to write an article about the cost of the spring sports program. But the story shifted focus after Lovell reviewed the budget of the girls' tennis team. He became suspicious when he found that the participants were charged $65 in fees to play tennis on the courts at the coach's apartment complex; Lovell interviewed the apartment manager and learned that there was no charge for the use of the courts.
Lovell collected canceled checks and signed statements from the apartment manager, all the evidence he needed to prove his case--and to convince journalism adviser Wendy Kruger that he had verified all his sources. "It was the best reporting I've ever seen in the high school press,'' Kruger says.
Before publication, Lovell told Williams about the story. "I went to the principal out of respect,'' Lovell says. "I wanted to keep him informed.''
Lovell certainly didn't expect the article to be pulled. After all, the principal had stopped by the journalism office after the U.S. Supreme Court's 1988 ruling, Hazelwood School District vs. Kuhlmeier, to reassure students that they would not be censored; the ruling strengthened school administrators' censorship powers. "The principal said, 'Don't worry about Hazelwood. Nothing like that will happen here,''' Lovell remembers.
But when the student approached the principal about the story, that First Amendment pep talk was all but forgotten. Says Lovell, "I was told that the article was accurate and not libelous, but it couldn't run.''
Williams, who is now an area administrator, says he censored the story because he thought it would have damaged student-teacher relationships. "I believe the article would have been counterproductive,'' he says. "The newspaper can criticize the school administration, but I don't think it should single out individual teachers for criticism.''
As a result of Lovell's investigation, the teacher resigned as tennis coach, but he remained a health teacher. The following year, the paper ran a story about the controversy--including a reduced picture of the original spread--but Lovell's story never appeared in readable form.
"My story never ran, and that was my last experience with journalism,'' says Lovell, who is now a sophomore studying math and finance at Hillsdale College in Michigan. "In the end, I was simply told: 'Life isn't fair.'''
The case underscores the tension created when the rights of students to a free press collide with the rights of principals and administrators to control what takes place on school grounds. In such conflicts, both sides see their rights as absolute, but legally, the issues are far less clear.
Five years ago, Lovell would have had little trouble defending his freedom to publish his controversial article. But the Hazelwood decision complicated the issue by increasing school administrators' authority to control the student press, including the right to review material before publication--and the right to censor.
The Hazelwood decision had an immediate chilling effect on the freedom of the high school press nationwide. In the years since the ruling, student freedom of expression has been curtailed at many schools. Just one year after Hazelwood, a University of Arizona journalism professor conducted a national survey of 350 high school journalism advisers and found that both students and teachers had already begun to feel the censorship standards imposed by the case. Fully 12 percent of the teachers reported their publications were subject to prior review, where none were monitored before 1988. During the first six months of this year, the Student Press Law Center received 700 requests for legal assistance; in all of 1988, it received 550.
In the post-Hazelwood era, administrators often find it easier to censor than to wrestle with the sometimes difficult decisions involving student-press freedom. Articles that pose a potentially controversial point of view or present the school in an unfavorable light often wind up edited or deleted entirely.
In the spring of 1990, for example, the principal of Annandale High School in Fairfax County, Virginia, banned an advertisement for SMYAL--the Sexual Minority Youth Assistance League--because it "was in conflict with the community's desires.'' The advertisement invited students to join a weekly discussion group and to call a help-line for information and counseling. The student editor appealed the decision to the superintendent, who, after seeking legal advice, convinced the principal to reverse his decision.
In another case, just one year after the Hazelwood decision, the school administration at Jefferson (Mont.) High School notified the journalism adviser that the newspaper could not print any stories about the pending teacher contract negotiations. "The administrators felt that, because of Hazelwood, they had the right to censor whatever they wanted,'' says Mark Kelly, teacher-adviser to the Panther Press. When Kelly filed a grievance with the union, the administration agreed to allow the articles.
"We're seeing more efforts to restrict student free expression,'' says Mark Goodman, executive director of the Student Press Law Center. "We're now seeing lawyers looking at Hazelwood and trying to figure out what administrators can get by with. The problem is that educators aren't asking, 'Is censorship educationally sound? Is it morally right?'''
On Dec. 15, the nation will celebrate the bicentennial of the ratification of the Bill of Rights. The First Amendment has been called the protector of truth, the watchdog of a free society, the only defense against the tyranny of the majority. Yet students' freedom of expression in school was not clearly established under the First Amendment until 22 years ago.
In earlier cases, the courts almost always affirmed school administrators' right to silence student speech. During the 1920s and 1930s, state courts consistently upheld the right of public school administrators to suspend or expel students who aired grievances or made "disrespectful remarks'' about school authorities in public.
The first student free-speech case did not reach the Supreme Court until 1940. Two Jehovah's Witnesses, 12-year-old Lillian Gobitis and her 10-year-old brother, William, were expelled from school in Minersville, Pa., because they refused to recite the Pledge of Allegiance, citing religious objections. They sued the school district. The Supreme Court held that a public school district did have the right to expel a student for refusing to pledge the flag. The students enrolled in private school, at their parents' expense.
But the high court reversed itself just three years later. After the Gobitis children lost their case, the state of West Virginia passed a law requiring school children to perform a "stiff-arm'' salute to the flag, explicitly stating that the right hand should be firmly raised with the palm held flat. The PTA, the American Red Cross, the Boy Scouts, and the Girl Scouts objected to the gesture, arguing that it was "too much like Hitler's'' salute.
When several Jehovah's Witnesses again refused to pledge, they were charged with insubordination and expelled from school. In this case, however, the Supreme Court reversed its earlier ruling, reasoning that requiring children to recite the pledge coerced them to state political beliefs that they did not agree with. This decision became a landmark for students' rights: It represented the first time that the Supreme Court recognized that public school children have First Amendment rights. (Private school administrators are not restrained by the First Amendment, which protects individuals from actions by the government or government officials.)
The next leap forward came nearly 25 years later. In December 1965, a group of Quakers in Des Moines, Iowa, decided to protest against the war in Vietnam by wearing black armbands during the Christmas season. In an attempt to thwart action by Quaker students, the principals in the Des Moines schools adopted a policy prohibiting students from wearing armbands to school.
Three students--13-year-old Mary Beth Tinker, 15-year-old John Tinker, and 16-year-old Christopher Eckhardt--wore the armbands anyway, and they were suspended. The students sued the school district, claiming their First Amendment rights had been violated.
On Feb. 24, 1969, the U.S. Supreme Court ruled in the students' favor. In the landmark decision, the court held that school authorities do not have the power to silence student expression simply because they disagree with the students' viewpoint. This case established students' First Amendment right to express themselves peacefully on school grounds, so long as they do not cause a "substantial disruption of or material interference with school activities.''
In the 7-2 majority opinion, Justice Abe Fortas wrote: "In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students....First Amendment rights, applied in the light of special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.''
The decision in Tinker vs. Des Moines Independent Community School District clearly established students' constitutional right to voice their opinions at school, even when those opinions are unpopular or controversial. But many administrators, teachers, and parents believe that students should not be given virtual carte blanche to run a school news- paper--especially when taxpayers' money is used to support the publication.
In the commercial press, the publisher finances the publication and therefore has complete control over the paper--including the right to censor. Some school administrators consider their role parallel to that of publisher: As long as taxpayers' money is used to pay for the school newspaper, the administration should share in the editorial control. The Supreme Court has not directly addressed this issue, but lower courts have found that administrators do not have the right to editorial control just because they control the purse strings.
There are also those who argue that administrators should have censorship authority over student publications because schools could be held liable for articles that appear in student newspapers. But that fear is unfounded, according to Goodman of the Student Press Law Center.
"Administrators talk about risk, but the risk of student publications is virtually nil,'' Goodman says. "Throughout U.S. history, no court has ever found a high school responsible for what is published in the student press. Liability is a red herring raised by school administrators to establish their right to control the press.''
As long as students are treated like professional journalists, they have the same rights--and responsibilities--as professional journalists. "The best way a school system can protect itself from lawsuits is to hire a competent publication adviser,'' says John Bowen, chairman of the Journalism Education Association's Scholastic Press Rights Commission. "When the adviser knows scholastic press law, the school is less likely to get into trouble.''
Freedom of speech is not absolute for either students or professional journalists. Over the years, the Supreme Court has carved out nine categories of speech that are "unprotected'' by the First Amendment. They include: obscenity, libel, incitement to lawless action, fighting words (personally abusive language that is likely to provoke a violent reaction), advertisements for illegal products or services, invasion of privacy, threats to national security, copyright violations, and, as a result of Tinker, expression that causes a material and substantial disruption of school activities.
Most cases of student-press censorship involve articles that school administrators think are obscene or would disrupt school activities. Virtually all obscenity cases involve profanity, although the Supreme Court has explicitly stated that profanity and "four-letter words'' are not obscene, even in the high school press.
Lawsuits involving censorship based on the disruption argument are often more confusing, in part because the Supreme Court was vague in defining what it means by "substantial disruption,'' leaving the phrase for lower courts to interpret. Some administrators have tried to exploit this ambiguity by broadly defining disruption. But when censorship cases go to court, the burden of proof lies with the school administration; in other words, it must prove that the censored speech would have disrupted the school. The Supreme Court did state that the censorship could not be based on "undifferentiated fear'' of disruption or an administrator's "intuition'' that a statement could be disruptive.
Using the categories of unprotected speech and the Tinker ruling as guides, the courts affirmed and expanded the rights of high school and college journalists in legal decisions throughout the 1970s and early 1980s. In these cases, federal courts upheld students' right to publish profanity, criticism of school policies and personnel, and articles on controversial topics, such as premarital sex, birth control, abortion, and drug abuse. During this period, student journalists enjoyed the most sweeping First Amendment protections in the nation's history.
Then came Hazelwood.
On May 10, 1983, the journalism adviser at Hazelwood East High School in suburban St. Louis brought the page proofs for the May 13 edition of the school newspaper to principal Robert Reynolds for his approval. At Hazelwood, prior review was a matter of policy: The paper was written by the Journalism II class as part of the curriculum; the page proofs were always reviewed by the administration before printing.
According to the Supreme Court opinion in the Hazelwood case, when Reynolds read the six-page paper, he objected to two articles, one dealing with students' experiences with pregnancy and another discussing the impact of divorce on students. Because there was no time to make the necessary changes in the stories before the scheduled press run, Reynolds ordered the adviser to delete the pages entirely.
Cathy Kuhlmeier, the student editor, and two other staff members of The Spectrum sued the administration, charging that their First Amendment rights had been violated. On Jan. 13, 1988, the Supreme Court handed down its decision upholding the right of the high school administrator to censor stories.
The court's 5-3 majority opinion basically said that the First Amendment rights of public school students are not necessarily the same as those of adults. The court ruled that the student newspaper at Hazelwood East High School was not a "forum for public expression'' because it was part of the school curriculum. Since the newspaper was a non-forum, school-sponsored activity, the Tinker standard-- which said school officials could censor only if the material would disrupt school activities--did not apply.
Instead, the court established a new standard: that school officials have the right to censor if they can present a reasonable educational justification for the censorship. The court determined that the Hazelwood principal had acted reasonably in censoring the stories, concluding that it was "not unreasonable'' for the principal to have decided that "frank talk'' by students about their sexual history and use of birth control was "inappropriate in a school-sponsored publication distributed to 14-year-old freshmen.''
The court set forth several categories of material that could be censored, including stories that are "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.'' The court also noted that the school administration "must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics,'' such as "teenage sexual activity in a high school setting'' and "speech that might reasonably be perceived to advocate drug or alcohol use, irrespon- sible sex, or conduct otherwise inconsistent with the 'shared values of a civilized social order.'''
Not all the justices agreed with the majority. In his dissent, Justice William Brennan wrote: "Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from one to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees.''
The critical issue in the Hazelwood case involves the definition of a publication as a forum of student expression. In previous cases, the court had said that any student publication that was more than an "activity time and place sheet'' would be considered a forum. But Hazelwood changed that. If, as at Hazelwood East High School, the teacher adviser has final authority over content decisions, then the newspaper is not considered a forum by the court but an extension of the school and, as such, subject to greater control by administrators.
"Our newspaper is a part of the curriculum,'' says Reynolds, principal at Hazelwood East. "We call it a laboratory exercise. There is as much structure in our journalism lab as there is in a physics lab.''
On the other hand, if student editors have been clearly given control of content decisions, or if the school has explicitly designated a publication as a forum, then administrators can exercise far less control. When a newspaper is a forum, the teacher-adviser helps and guides students, but the student editor remains responsible for all decisions.
"The adviser has a responsibility to teach the student the standards of professional journalism,'' says Bowen of the Scholastic Press Rights Commission. "After that, the student editor and the student editorial board bear the responsibility for the decisions. The advisers couldn't censor if they wanted to; the students decide what to publish, and they are responsible.
"In 20 years of teaching journalism, I've never had to censor,'' says Bowen, who is a journalism adviser and social studies teacher at Lakewood (Ohio) High School. "My students know how to be responsible journalists.''
Although many school administrators are employing the broad censorship authority Hazelwood has given them, others have been more hesitant. Some have even taken steps to defend and strengthen student press rights at their schools.
Last year, for example, the student newspaper at Kirkwood High School in suburban St. Louis--just 20 miles from Hazelwood East High--agreed to run an advertisement for Planned Parenthood. The ad said, in part, "It's not enough to 'just say no.' Say KNOW.'' It listed a phone number for counseling and referral. Birthright, another organization concerned with reproductive issues, wanted to counteract the Planned Parenthood ad by running one that said, in part: "Make no mistake about it. The abortionist doesn't perform choice. He kills a baby.''
Many parents and local citizens considered the ads inappropriate for a high school audience, so they urged principal Franklin McCallie to ban them. Mc- Callie refused. Instead, he explained the situation to his student journalists and asked them to make their own decision. "If there's going to be a free press, it's up to the students to decide how to handle difficult situations,'' McCallie says. "I would have supported whatever decision the staff made.
"I see it as more than an issue of freedom of speech. It's the right way to educate. If you tell students they're playing at being journalists, then you don't get mature reporting. If you let the kids know you have great expectations, they will rise to the occasion.''
Because Kirkwood High School has clearly established the students' right to control editorial content, the paper is considered, under the Hazelwood decision, a forum. Publications can become forums either through practice--by letting final editorial control rest with students--or through policy--by establishing guidelines or policies that define the publication as a forum. In most cases, these guidelines also clarify the rights and responsibilities of the student journalists, the teacher-advisers, and the school administrators.
"Most high schools with good newspapers have policies protecting student press rights,'' says Goodman of the Student Press Law Center. The center has prepared model guidelines for student expression that have been used by school districts across the country when drafting such policies.
States can also enact measures that further guard students' freedom of expression. To date, four states-- California, Colorado, Iowa, and Massachusetts-- have passed laws that protect the rights of student journalists. (California passed its law 10 years before the Hazelwood decision was handed down.) Teachers in nearly a dozen other states have lobbied for similar laws.
The state laws in place typically guarantee students' right to free speech, except in those cases that fall under one of the established categories of unprotected speech. Often, the laws also require schools or school boards to adopt written publication guidelines.
In Indiana, where Lovell's story about the tennis coach was censored, the students in Northrop High's journalism program have been lobbying the state legislature to pass a law that protects their freedom of expression. The bill was first introduced last year and will be reintroduced this year.
"Our paper is not a forum [set out] in writing, but it is a forum in practice,'' says Wendy Kruger, Northrop's journalism adviser. "Our students control the editorial content. And we're working for legislative protection that would firmly establish our students' rights to free speech. In my opinion, it's impossible to have good journalism without press freedom.''
Vol. 03, Issue 03, Page 46-53