'Underground' policy reform surfaces

Schools forced to examine prior review, distributed rules for non-sponsored material

In the midst of a legal battle over two high school students' right to distribute an underground newspaper in Michigan, the South Lyon Community School Board has approved a definitive policy on student distribution of outside material.

The new five-page policy specifically concerns what it calls time, place and manner restrictions, review procedure and content-based restrictions on 'written matter, which is not sponsored or officially endorsed by the district and which is intended for general distribution.'

South Lyon High School Principal Larry Jackson suspended three students last spring for trying to distribute their underground newspaper, The First Amendment, at school. Administrators accused the students of 'interfering with the operation of a school building' and said they did not seek prior approval to distribute their paper.

Two of the students sued the school district, saying the confiscation of The First Amendment and their punishment was a violation of their First Amendment rights. Their attorney, Andrew Nickelhoff, said the school punished the students based on a nonspecific 'catch-all code' regarding student conduct. The school also relied on a school board resolution on the publication of religious and political material that he said was vague and never disseminated to students.

Parts of the new policy are a result of negotiations for a settlement that eventually broke down, Nickelhoff said.

The policy states students must submit to the principal copies of what they plan to distribute, and they have to wait for written approval before they can distribute it. It says principals may turn down requests to distribute anything they reasonably predict will disrupt the school, is defamatory, obscene to minors, indecent, vulgar, offensive or 'constitutes an invasion of the rights of others.'

Nickelhoff said there are definitely elements of the new policy that he would challenge, but overall it is an improvement because what was in place before was abysmal.

The lawsuit was awaiting a mid-December hearing on a preliminary injunction to have the suspensions expunged from the students' records and to allow distribution of the newspaper, Nickelhoff said. When the Report went to press, a decision on the case had not yet been issued.

In Massachusetts, meanwhile, the re-writing of a similar policy has had more positive results on student free expression.

Controversy surrounding an underground newspaper that has gotten a student suspended twice has led to a more constitutionally sound school policy.

In October, the Amherst Regional School Committee voted 8-1 in favor of rewording the district's student free-expression policy to 'highly recommend,' rather than 'require,' that students provide material to administrators for prior approval before distributing it at school.

Max Karson, a senior at Amherst Regional High School, was twice suspended for distributing his controversial underground paper, The Crux, on school grounds without seeking prior approval. On both occasions, his suspension was revoked after questions arose over the constitutionality of the school's prior approval policy.

The policy revision was a collaborative effort mounted by the school committee and the American Civil Liberties Union of Western Massachusetts, which originally become involved to defend Karson's free-speech rights.

According to William Newman, executive director of the ACLU of Western Massachusetts, the policy is now more consistent with the Massachusetts Student Free Expression Law, which states that students can only be punished if their speech is proven to be libelous, obscene or has caused material disruption of classes.

reports, Winter 2002-03