Rays of hope amid dying legislation
Despite widespread failure of student free-expression bills, adovcates in two states are optimistic for the future
It has been four years since school administrators censored Katy Dean, then a junior at Utica High School in Utica, Mich. And now, much to her chagrin, another generation of Michigan high school students is facing the same specter of administrative control.
“It is extremely disheartening to know that Michigan high school students can and will continue to be censored under current Michigan law,” Dean said.
In 2002, Dean wrote a story for her high school newspaper, The Arrow, in which she told the story of a local couple who were suing Utica Community Schools after one of them developed lung cancer, they believe, as a result of diesel exhaust from the school district’s bus barn, which was adjacent to their house.
But Utica High School Principal Richard Machesky, citing “factual errors,” would not allow The Arrow to publish the story.
“The Arrow is a school-sponsored, curriculum-based publication, over which the school exercises a great deal of control,” Machesky wrote in a March 2002 letter to The Arrow staff.
As a result of Machesky’s censorship and a successful lawsuit by Dean, student press advocates in Michigan successfully lobbied state Sen. Michael Switalsky, D-Roseville, to sponsor legislation defending the rights of high school student journalists.
In doing so, advocates in Michigan joined those in Vermont and Oregon in competition to be the seventh state to pass student free-expression legislation – vying to join Arkansas, California, Colorado, Iowa, Kansas and Massachusetts, which already have student press-friendly laws.
However, as state legislative sessions around the country adjourn for the upcoming elections, it appears in the three states where advocates pursued student free-expression legislation for high school students, the bills have either stalled indefinitely or were never introduced.
As elections near, student press advocates find themselves hoping the next legislative session brings more success, and those in Michigan and Washington feel they have reason to be optimistic.
In the case of Utica High School, Dean sued the school district in April 2003, claiming administrators violated her First Amendment rights in prohibiting The Arrow from publishing her story.
Utica administrators claimed their withholding of Dean’s story did not constitute censorship because The Arrow was not a designated public forum. But a federal district court judge ruled otherwise, saying the paper was in fact a public forum and that even if it was not, school officials could not have justified withholding Dean’s article.
Such attempts by administrators to rationalize censorship have become commonplace since 1988, when the U.S. Supreme Court ruled in Hazelwood School District v. Kuhlmeier.
In Hazelwood, the Court held that administrators could censor student publications as long as they demonstrated a reasonable educational justification, a requirement that has allowed administrators to censor a wide variety of student content.
The Court also ruled that if either “by policy or by practice” a student newspaper had been opened as a forum for student expression, and student editors have control over content, an administrator’s ability to interfere with the paper is governed by an earlier precedent, the Court’s 1969 decision in Tinker v. Des Moines Independent Community School District.
In Tinker, the Court ruled that in order to censor a student publication, administrators must prove that the material will create a “substantial disruption” of normal school activities or would invade the rights of others.
The Court’s loophole for student newspapers that are public forums for student expression has led countless administrators to denounce and even pull newspapers’ public forum policies. Such restrictive measures have helped to spark attempts to pass legislation counteracting Hazelwood in states around the country – including Michigan.
Stalled in Michigan
Michigan state Sen. Switalski introduced Senate Bill 156 in February 2005 to praise from the state’s student press advocates.
If passed, the bill would prohibit administrators from reviewing students’ content prior to publication or censoring that content unless it consisted of already illegal speech, such as obscenity or defamation, or would materially and substantially disrupt school activities.
Switalski said the situation in Utica, a community he represents, is what sparked his interest in student press rights.
“If we believe free speech rights are good enough for citizens, why aren’t they good enough for students,” Switalski said. “By censoring students, are we telling them we really believe in our ideals or that we don’t really?”
SB 156 was sent to the state Senate’s education committee. However, after a hearing in April 2005, it became apparent the bill would not make it out of committee, according to Jane Briggs-Bunting, the director of Michigan State University’s department of journalism, who testified at the hearing.
Briggs-Bunting said the committee chairman, state Sen. Wayne Kuipers, R-Holland, clearly did not support the bill.
“It was very clear from the questions he was asking and his comments,” Briggs-Bunting said. “At least one of the senators said it’s dead because [Kuipers] will never let it out.”
Kuipers could not be reached for comment. But Angie Doezema, a spokeswoman from Kuipers’ office, said the senator is not necessarily opposed to SB 156, but he feels it needs more work before it can pass committee.
Doezema said she could not comment on what work needed to be done.
Down and out in Vermont, Oregon
In Vermont S.46, a bill that would counteract Hazelwood, has also stalled in the state Senate’s education committee.
The bill, which would ensure that students are granted the free press rights that Hazelwood limits, was introduced by state Sen. Jeanette White, D-Windham, in February 2005.
S.46 would protect students’ free expression rights in school-sponsored publications, as long as the content is not obscene, libelous, defamatory or invades someone’s privacy. It would allow administrators to censor only if the speech “materially and substantially disrupts the orderly operation of the school” – the standard allowed by Tinker.
Despite a hearing on March 8, 2005, the bill remained in committee until the end of the legislative session on June 1, 2006, when it died.
White said that the bill is “dead for now” and said she plans to reintroduce the legislation in the next legislative session, assuming she is re-elected.
“There has been interest from the high school level – both teachers and students – so I expect next year that it will get more attention,” White said in an e-mail. “It wasn’t that it was opposed, just that there was not the clamor of support that some other bills had.”
The Oregon Society of Professional Journalists and the Oregon Newspaper Publishers Association, meanwhile, have each moved on to other issues and dropped their push for student free-expression legislation in their state.
The last time Oregon’s legislature considered student free-expression legislation was in 2001.
There had been talk of reintroducing such legislation in 2004, prior to the 2005 legislative session. But with the old bill’s supporter out of office and the state’s key journalism interest groups no longer pursuing the issue, the push for such legislation in Oregon is effectively over.
LeRoy Yorganson, executive director of ONPA, said after trying in 1999 and 2001 to no avail, the group decided to focus its efforts on other topics, such as expanding the state’s freedom of information laws.
‘We’re not giving up’
While student press advocates in Oregon have moved on to other battles, proponents of the Michigan bill said its failure to pass committee is only the beginning.
“We’re not giving up on it,” Briggs-Bunting said. “We’re going to be approaching it from a different strategy.”
Briggs-Bunting said she did not want to elaborate on the new strategy for fear of aiding the bill’s opponents, but she and other Michigan student press advocates say they plan to portray the bill as an enhancement of civics education.
Gloria Olman, who was The Arrow’s adviser when it was censored in 2002 and is currently the legislative chair of the Michigan Interscholastic Press Association, further stressed the importance of teaching journalism. She said journalism gives students a free outlet to express themselves and is a lesson in participatory democracy.
“We must give students rights. Without them we take responsibility away from students and give it to adults and then [the students] don’t learn it,” Olman said. “If we want involved adults in this democracy, we have to train them. And this is the way to do it.”
Michigan state Sen. Switalski said although the bill’s opponents seem set in their ways, he plans on reintroducing it next term assuming he is re-elected.
“I think people are reluctant to give student publications free reign,” Switalski said. “They’re not willing to take a fresh look at it, despite a lot of testimony and specific examples of how censorship has been misused.”
‘First step’ in Washington
Brian Schraum is editor in chief of The Current, the student newspaper at Green River Community College in Auburn, Wash. In his efforts to protect Washington college students from censorship, he has been lobbying his state representative to sponsor student free-expression legislation that would help high school students as well.
Schraum became active in pursuing student-free expression legislation after last year’s 7th U.S. Circuit Court of Appeals ruling in Hosty v. Carter. In Hosty, the court held that Hazelwood, which has historically limited high school students, could be applied to colleges and universities in Indiana, Illinois and Wisconsin.
Although the Hosty decision did not apply directly to Green River, which is not in the 7th Circuit’s jurisdiction, Schraum said it gives credence to a frightening argument against student free expression in colleges and universities around the country. But when Schraum approached Washington state Rep. Dave Upthegrove, D-SeaTac, he said he wanted to look out for high school students as well.
“When I met with Upthegrove, I said, ‘Really I think the people who need [the legislation] more than anybody are high school reporters,’” Schraum said. “He said, ‘Let’s throw everyone into this bill, make it comprehensive.’
“I think we got everybody covered.”
In addition to protecting college journalists from the ill effects of Hosty, a preliminary version of the Washington bill would go much further than the state’s current administrative code, which only reiterates that students have First Amendment rights.
The preliminary bill would explicitly prohibit high school administrators from engaging in prior review or prior restraint of a student newspaper except under the limitations of Tinker. The bill also has a clause protecting high school journalism advisers.
“No journalism adviser will be terminated, transferred, removed or otherwise disciplined for refusing to suppress the protected free expression rights of student journalists,” the preliminary bill states.
Upthegrove said he hopes to introduce the bill in its current form in January, and said he will be meeting with a number of interested parties over the next few months to seek their feedback, suggestions and “hopefully support.”
“We’ll need to be cognizant of the political realities,” Upthegrove said. “If there are groups that are strongly opposed [to the bill] then we’ll have to make a political decision of how much to change. I hope it is identical. I’m comfortable with it as drafted.”
He said he was drawn to student free-expression legislation because, at age 35, he said he feels promoting the political empowerment of young people is a “niche interest” of his.
And while he acknowledged that many states have tried to pass such legislation to no avail, Upthegrove said freedom of the press is fundamental to democracy and thus such legislation is worth pursuing.
“I’m optimistic about the prospects, and I plan to work hard to build a coalition of supporters before the legislative session,” Upthegrove said. “We’ll find out in January for sure.”
Fall 2006, Michigan, reports, The Arrow, Utica High School