Oregon journalists win limited victory





OREGON — The Oregon Court of Appeals once again skirted the issue of state free press rights for student journalists in a decision in a long-running high school censorship case.
Though the judge ultimately ruled in favor of the student journalists in Barcik v. Kubiaczyk, 912 P.2d 408 (Or. Ct. App. 1996), he dismissed their state constitutional claims, stripping them of their major issue and avoiding any discussion of the state constitution throughout the case. The court upheld the trial court’s ruling in the case.

Michael Harting, an attorney for the students, said a main reason for bringing the suit was to have the Oregon state courts address what press rights students were entitled to under the state’s constitution. He said he had hoped the courts would set a state precedent by deciding to recognize one censorship standard for both official and unofficial student publications that would counteract the Supreme Court’s Hazelwood decision.

Currently in Oregon, official student publications are protected from censorship using the Hazelwood standard and unofficial student publications are protected using the more protective Tinker standard.

The case began in 1992, after the principal at Tigard High School suspended a group of students for publishing and distributing an unofficial student newspaper called Low Spots. The principal then censored an editorial written by the official school newspaper, High Spots, that supported the unofficial paper. After the censoring of the High Spots editorial, the school board adopted a prior review policy for all student publications.

The editors of Low Spots and High Spots subsequently joined forces in a lawsuit against the principal and the school board, claiming their First Amendment and state constitutional rights had been violated. The students sought damages for past censorship and a declaration that the newly adopted prior review was unconstitutional under both the federal and state constitutions.

A junior high school student also joined the case, claiming the school’s prior review policy would affect her free speech rights at the school in the future.

The court ultimately ruled that both the suspension of the Low Spot’s staff and the censorship of High Spots violated the First Amendment, though all of the students’ other issues were dismissed, including the junior high school student’s claims.

The case also marks the second time a court has rejected censorship of a school-sponsored publication after the Hazelwood decision. In 1994, the New Jersey Supreme Court rejected a junior high school’s censorship of movie reviews from a student newspaper, saying the school couldn’t justify its actions as educationally reasonable.

Harting said he and the students were disappointed with the decision not only because their state claims were dismissed, but also because they pursued the case so long, only to end up with the same decision as the first one they had gotten. The case began in the trial court, then advanced to the Court of Appeals. From there it went to the state Supreme Court, then back to the appeals court, where the trial court’s original ruling was upheld.

Marce Edwards, one of the editors involved in the case, said, “We had such hope that we were going to make a difference…. It was really important to us.”

“The school didn’t have the same passion that we had,” she added.

Former editor Josh Olson criticized the decision, saying, “There shouldn’t be an age limit on First Amendment protection.”

He said the decision sends an unfortunate message to children that they will not always be able to say the things they want to say.

Both Edwards and Olson said they would “absolutely” urge other students in similar situations to legally pursue their claims. Both pointed out that legal challenge is the only way that changes can be brought about.


Fall 1996, reports