Anti-Hazelwood campaigns launched in 3 states

As a growing number of high school students find themselves facing legal battles regarding censorship, legislators are trying to establish or change existing laws regarding student expression and student press rights.

Many administrators have argued that their actions to censor are justified, based on the standard set by the 1988 Supreme Court case, Hazelwood School District v. Kuhlmeier, which limited student free expression rights in some student publications.

Students and advisers in Pennsylvania temporarily fought off an effort to have their press freedoms limited by the House Education Committee, who earlier this year planned to alter the wording in the “Freedom of Expression” section of the state education code.

On March 1, a week before a scheduled vote on revising education code regulations, the Pennsylvania State Board of Education withdrew the proposed changes to section 12.9—the free expression section.

Section 12.9 was created in 1984. The first part of the section cites the standard established in the 1969 Supreme Court case Tinker v. Des Moines as precedent for student media. The second part says that students have the right to “express themselves unless such expression threatens immediate harm to the welfare of the school or community.”

In addition to the Tinker reference, the board proposed adding references to other U.S. Supreme Court decisions, Bethel v. Fraser and Hazelwood v. Kuhlmeier, in November 2003. The Fraser ruling upheld a decision school administrators made to punish a student for a speech delivered at a school assembly that was deemed vulgar and offensive, and the Hazelwood ruling permitted schools to impose greater restrictions on some school-sponsored media.

Students who worked for Hazelwood East High School’s student newspaper sued the school district after the principal objected to and removed two articles: one on teen pregnancy and another on divorce.

“Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonable related to legitimate pedogogical concerns,” the court wrote, ruling that the students’ First Amendment rights had not been violated.

The 1969 Tinker ruling gave administrators the power to only limit student expression that would violate another person’s rights or would cause a “material and substantial disruption” of normal school activities. Pennsylvania’s student press supporters want schools to follow the Tinker standard.

The board also proposed changing “threatens immediate harm” to “threatens immediate or serious harm.” Stephen Shenton, legal analyst for the Pennsylvania School Press Association and professor emeritus of communications and journalism at Shippensburg University, said people suggested adding “or serious” because they were concerned that the word “immediate” did not encompass all harms. Shenton said some suggested terrorist threats could be perceived as “serious” and not solely “immediate.”

The proposed changes were reintroduced in February after being postponed. A hearing was held on Feb. 23 to discuss the changes. Attendees included press organization representatives and members of the Pennsylvania School Boards Association and the state board of education.

The hearing resulted in substantial opposition to the proposed changes and a perception that they would not pass, according to Rep. James Roebuck (D-Philadelphia), the co-chairman of the House Education Committee. Therefore, they were withdrawn for reconsideration.

The state board of education alone has the authority to propose changes to code regulations. Once proposed, the changes are submitted to the House and Senate Education Committees for consideration. After the committees have considered the proposals, any new changes are written by legislative subcommittees and are sent back to the education committees for review. At this step the proposed changes are voted on at hearings; if approved, they are sent to the Independent Regulatory Review Commission for further consideration. Revisions to the proposed changes may be submitted at any step of the process, but can only by approved by the House and Senate subcommittees.

The legislative director of the Pennsylvania ACLU, Larry Frankel, spoke in opposition to the changes at the hearing on behalf of the organization, saying the addition of the Hazelwood and Fraser references would limit the Tinker reference and therefore the rights of public school students.

“Adding this reference to the existing regulation sends a signal that the Commonwealth of Pennsylvania no longer fully respects the First Amendment rights of students,” Frankel said.

Shenton agreed, saying that “or serious” is not legally defined and could allow schools to create their own interpretations and limit student expression in student media.

According to a report on the hearing published by the Education Policy and Leadership Center, some committee members proposed “clarifying that action may only be taken if a student threatens violence.”

The Chapter 7,11, and 12 committee is a subcommittee of the House Education Committee and is in charge of deciding whether to alter the proposed changes, keep them as is or drop them completely. The changes would then go to the House Education Committee for review.

The proposed changes will be dropped if the board does not produce a final form of the regulation by December 2005.

Sen. Jeanette White (D-Windham) introduced a bill in Vermont that would guarantee press freedom rights to students working for school-sponsored publications.

The proposed legislation, Freedom of Speech and Press Rights for Students, would allow students free expression in any publication that is supported financially by the school, except speech that is obscene, libelous, defamatory or invades another person’s privacy. The bill would also require schools to adopt standards that allow administrators to censor speech only when it “materially and substantially disrupts the orderly operation of the school.”

The current model policy distributed by the state’s department of education says that school-sponsored publications are “not intended to be a public forum,” giving administrators greater authority to censor articles they object to. The policy also references the standards set in Hazelwood and Fraser.

Helen Smith, director of the New England Scholastic Press Association, is pleased with the proposed legislation and called it “crucial” to that area. Massachusetts is the only state in the region with an anti-Hazelwood law, enacted in 1988.

“It’s been all these years since anything substantial really happened in New England,” Smith said.

The bill was introduced in the Education Committee on Feb. 22. A hearing was held for it on March 8. No votes are planned for the near future.

A bill was also introduced in Michigan by Sen. Michael Switalski (D-Roseville) on Feb. 3 that would prevent school administrators from censoring articles unless they violated certain restrictions.

“A school board, school administrator, or school employee shall not subject a [student publication] to prior review or prior restraint, except [if it is] obscene as to minors; [a] defamation or invasion of privacy; or [poses] a clear and present danger of [illegal or substantially disruptive activity],” the bill states.

The inspiration for Switalski’s bill came from former Utica High School student Katy Dean’s lawsuit against Utica Community Schools after her principal, Richard Machesky, removed her article and an accompanying editorial from the school’s newspaper, The Arrow, hours before the paper went to press. Machesky told Dean he removed the articles because they were factually incorrect and lacked a balanced point of view.

Dean’s article was about a lawsuit that a local resident had brought against the school district with his claim that idling school buses in the district’s garage had contributed to his lung cancer and other illnesses. In her article, Dean included scientific studies and experts’ comments on the effects of diesel exhaust on a person’s health, but the article did not contain statements from school officials because they had refused to comment on the situation.

The judge ruled in favor of Dean, stating that student journalists “must be allowed to publish viewpoints contrary to those of state authorities without intervention or censorship by the authorities themselves.” The judge also noted that because The Arrow was a limited public forum, the publication had greater rights afforded to it than those established in Hazelwood.

Gloria Olman, Katy Dean’s former newspaper adviser, helped Switalski’s staff write the bill.

Switalski’s legislative assistant, Brad Comment, said that Switalski wanted to protect students’ First Amendment rights through the proposed legislation. Because Switalski is a former journalist, Comment added, he understood firsthand the importance of such rights.

The bill was sent to the Senate Education Committee on Feb. 3. On April 14, a public hearing was held to allow committee members and student press advocates to discuss the bill.

Switalski, Olman and Jane Briggs-Bunting, an attorney and the director of the School of Journalism at Michigan State University, each spoke in support of the bill at the hearing. No students attended because the bill’s supporters were notified of the hearing just 24 hours prior to it and did not have enough time to rally support, Olman said.

“Who on this panel would defend the right of school administrators to censor constructive students’ criticism of school policies?” Switalski questioned the committee. “Surely we as a legislature believe that open and honest debate is the surest way to achieve good policy. When respectfully done, doesn’t that apply to students, too?”

“Censorship is the tool of tyranny. The open exchange of ideas is the way of democracy,” Switalski added. “[This bill] supports our fundamental values by granting student publications First Amendment rights within reasonable limits.”

According to Comment, the chair of the committee, Sen. Wayne Kuipers (R-Holland) said at the hearing that he “does not foresee a vote on the bill in the near future.”

Comment said the committee’s main concern was that the bill would not give administrators enough control and would give students too much freedom.

Jeff Cobb is the legislative assistant to Sen. Gerald Van Woerkom (R-Muskegon), who opposes the bill.

According to Cobb, Van Woerkom expressed several concerns at the hearing.

Van Woerkom, a former student newspaper adviser and principal, said the bill did not specifically state what would or would not be permitted in student newspapers. Van Woerkom said that some articles are inappropriate and should not be published because they are hurtful to students, faculty or other staff members. Van Woerkom added that he was concerned that the bill did not allow the school to have the final determination on those types of articles.

“We obviously support free speech and we don’t think that legitimate news stories should be censored,” Cobb said. “But an example [Van Woerkom] used is that when he was an adviser, one of the students wrote a parody mocking one of the school janitors. [Van Woerkom] said, ‘We can’t publish that [article] because it would be hurtful.’”

Cobb said Van Woerkom also said that if schools are prevented from having the final say on student newspaper content, schools might get rid of the newspaper altogether. Cobb said Van Woerkom does not want to see that possibility occur because he believes the student newspaper is a valuable teaching tool for students.

“Some school districts will say, ‘We’re paying for [the newspaper] and we don’t have any control anymore, [so] maybe we’ll just forget about it,’” Cobb said.

Cobb said he does not know if Van Woerkom would support the legislation if his concerns were addressed, but said his office will be working with Switalski’s on the bill’s wording. Cobb added that he does not know when changes will be made to the bill because Kuipers opposes it and does not seem to be in a rush to move it forward, Cobb said.

Kuipers’ press secretary did not return calls seeking comment.

Olman, who expressed disappointment with the hearing, said support needed to come from Republican Senators for it to pass. Olman also said she believed the committee was opposed to the bill prior to the hearing.

However, Olman said she will not give up on the bill.

“We need major help [to garner additional support for the bill],” Olman said. “I will not give up the fight for First Amendment rights for all citizens. None of us can. We have work to do.”

Comment said that though no progress was made on the bill, the hearing was a success because it involved a “lively” debate.

“We felt that our voice and the voice of students were heard,” Comment said. “Switalski looks at [the hearing] as a victory, one battle in the war. Our point was definitely made: to expand [students’] First Amendment rights while [still] maintaining supervision.”

Jack Dvorak, director of the High School Journalism Institute at Indiana University, said anti-Hazelwood bills are being introduced to address the lawsuits students have filed against the schools that have censored them.

“Some recent [high school censorship] court cases have contributed to a concern [among student press advocates],” Dvorak said. “Since most people in schools—administrators, teachers and students alike—are interested in avoiding long [legal] battles, it makes sense to develop state statutes that allow for student freedom of expression in schools.”

Dvorak called the introduction of anti-Hazelwood legislation a “political” issue, noting Indiana’s two failed attempts at getting such legislation passed.

Jeff Browne, director of student media at Colorado State University and the former executive director of the Colorado High School Press Association, said the standards in Hazelwood and Fraser should never be used as standards for student press. Browne said Tinker—the standard applied in anti-Hazelwood laws—gives the “benefit of the doubt” to students by allowing them to express themselves freely in the press. Colorado is one of six states that has passed anti-Hazelwood legislation; the others are Arkansas, California, Iowa, Kansas and Massachusetts.

“The [Hazelwood and Fraser] standards don’t concede that student journalists have the ability to form legitimate opinions or that those opinions can be presented in a mature and thoughtful manner,” Browne said. “They assume that administrators can best decide what students read, write, and, ultimately, think. If journalism is included as a legitimate course of study in [a] school, to allow anything other than full First Amendment freedoms is an abrogation of the school’s purported curriculum.”

The National Scholastic Press Association’s executive director, Tom Rolnicki, agreed, saying that Tinker provides “a workable standard for students to understand and abide by as they publish.”

Vanessa Shelton, director of Scholastic Journalism Programs at the University of Iowa, called anti-Hazelwood legislation “a major step” in aiding students in becoming active members in a democratic society.

“School administrators and boards are overwhelmed already with a myriad of responsibilities. It should be a welcomed relief [to not take] on prior review and [let] students take responsibility for their work—as they do with most of their school work,” Shelton said. “Tinker allows students to be the best that they can be by exercising their senses of responsibility as citizens, without fear of reprimand.”

Hazelwood School District, Michigan, Pennsylvania, reports, Spring 2005, Vermont