Close call in California


A little-noticed state law shielded students in Hazelwood's wake





Twenty years after the Supreme Court announced its decision in the landmark student press case Hazelwood v. Kuhlmeier, experts still struggle to gauge its impact.

But for a short three days at Homestead High School in Cupertino, Calif., the effects of the case were dramatic and immediate. Within two hours of the Court’s announcement and just two days before the school’s newspaper was to go to press, Principal James Warren swiftly revoked the long-established editorial independence of the school’s newspaper, The Epitaph, when he told students they would be punished if they ran an article about a student who was HIV-positive. Students braced themselves for what they envisioned would be a tense fight against the administration to maintain their editorial independence.

Then, hours later, a newspaper reporter tipped the students off to a California law that nullified the decision and ultimately saved the newspaper from censorship. The statute — signed into law 11 years earlier — was the first of its kind in the nation and has saved countless high school student journalists from censorship under Hazelwood in California.

Though the students ultimately prevailed, the events that unfolded at Homestead after the Court’s announcement foreshadowed the new challenges student journalists would have to face in the wake of the Hazelwood decision.

The story

In the fall of 1987, high school senior and Epitaph reporter Kathryn Pallakoff learned that a close friend had recently tested HIV-positive. While she helped her friend cope with the revelation, she saw an important opportunity to educate other students about the virus.
“People were very ignorant about what it was and how you contract the virus,” she said. “Here was a student that contracted HIV, the point being that it was not some distant weird thing happening to other communities. It was happening here.”

Elsewhere, the virus had created fear and panic, said Nick Ferentinos, who was then the newspaper’s adviser. So he decided to let the principal know about the story because of the sensitive nature of the topic.

Before the paper went to press in November for its December edition, Pallakoff and Editor in Chief Mike Calcagno received a visit from district officials.

“They urged the students not to run the story,” Ferentinos said. “They were afraid of repercussions on the campus. … They predicted there would be gay-bashing.”

Warren, in his first year as Homestead’s principal, also expressed anxiety over the story and urged the students not to run it.

“The principal was concerned there might be violence and it didn’t feel to me like that was going to happen,” Pallakoff said. “If anything, I was more concerned there was apathy, that people would just not care.”

Ferentinos had some concerns about the story. Pallakoff used a pseudonym to protect the identity of the student and never revealed the student’s name to anyone but her mother. The student claimed to be HIV-positive but had not yet developed any of the physical symptoms of AIDS. Pallakoff also indicated that the student wanted his story told. Ferentinos told Pallakoff to triple-check the story so they could be absolutely sure of its accuracy if the newspaper came under fire.

Pallakoff agreed to hold off a month to make absolutely certain the subject of her story was HIV-positive. The story, they decided, would run in January.

January 13

On Tuesday, Jan. 13, 1988, Ferentinos learned that a case his journalism class had been following, Hazelwood v. Kuhlmeier, had been handed down in Washington, D.C., that morning. The case dramatically expanded a school’s ability to censor many high school publications. The Court determined that a school-sponsored newspaper that is not a public forum could be censored based on any “legitimate pedagogical concerns.”
Ferentinos, before starting class, peeked into the principal’s office and told him about the decision. Two hours later, while Ferentinos was in the midst of explaining the day’s ruling to one of his journalism classes, the principal interrupted his class and announced that he would be shelving Pallakoff’s article. It was the first time in the school’s history that a principal had exercised censorship over the paper, Ferentinos said.

The students were furious and anxious. The January edition was to go to the printer in two days and Pallakoff’s story constituted a large chunk of it.

“At this point, we have about 24 hours to put this baby to bed,” Ferentinos said. “We really didn’t know what to do.”

In an interview with The Epitaph in the days that followed, Warren said he put a hold on the article because he thought the Court’s decision might confer additional responsibility on him to oversee the newspaper.

“I told (The Epitaph) to hold off on publication of that article until I got clarification of the decision,” he said.

But Calcagno saw the move as prior restraint.

“I was livid,” Calcagno said said. “Not only was it a regressive decision, but it was being applied to us. It was such a betrayal.”

The principal had threatened to suspend Pallakoff and Calcagno if they defied him, Pallakoff recalled. Ferentinos had left the decision to run the story up to the students, and they told Warren that they were going to run the story and accept the consequences.

“I didn’t care about (getting suspended),” Pallakoff said. “To me the principle was larger. The issue of protecting free speech was not something you backed down about.”

Within hours, local media had descended on the campus to witness the effects of the decision unfold. As the students braced themselves to go to bat against the principal, San Jose Mercury-News reporter Dan Nakaso tipped Ferentinos off to a law that suddenly gave the students hope.

The law, California Education Code Section 48907, delegates the responsibility for “assigning and editing the news, editorial, and feature content of their publications” exclusively to student editors. It also granted freedom of the press to students except for material that is “obscene, libelous, or slanderous” or incites a “substantial disruption.”

Passed 11 years earlier, it was the first state law in the nation to specifically protect student journalists. In January 1988, it was still the only one of its kind on the books.

Ferentinos knew of the law but assumed the Supreme Court decision had superseded it. In reality, the decision only established the minimum rights a school must provide; states were free to offer broader protections.

Even with knowledge of the law, the principal held his position, telling the students that he wanted to get legal advice before he would lift the ban.

By Wednesday night, Calcagno’s confidence was building. Legal experts, including one from the State Department of Education, reassured him that Hazelwood did not change California law.

‘Ultimate teaching moment’

The following morning, Ferentinos called Mark Goodman, the executive director of the Student Press Law Center, who again confirmed that the California law nullified Hazelwood.
Two hours later, Warren announced he would lift his hold of the article after consulting with the chief counsel of the State Department of Education.

Pallakoff and Calcagno prepared to take the newspaper to the press that night. The next day, a special issue of The Epitaph hit the stands with Pallakoff’s article and an accompanying story that detailed the struggle to get Pallakoff’s piece in the paper in the first place.

The violence district officials had feared never materialized. That Friday was like any other publishing day, Ferentinos said.

“Students were really avid readers of the newspaper,” he said. “When the paper came out, the silence on the campus was palpable.”

Calcagno was relieved and content that the article had survived the threat of censorship because he viewed the subject as especially relevant to students.

“Education about AIDS for a lot of students who are just starting out their sexual life could be a matter of life or death,” he said. “The HIV story was exactly the sort of story we thought was important to run.”

Pallakoff recalls the tense 48 hours of wrangling with the principal as “the ultimate teaching moment.” Ferentinos schooled all of his journalism students in press law, which ultimately appeared to pay off.

“We had a sense of justice and injustice and we took it really seriously,” she said. “The issue of free speech was incredibly important … and we wanted to make a stand about that.”

That year, The Epitaph added the Student Press Law Center Freedom Award to its many journalism awards.

“It’s probably the most important award we ever received,” he said. “It really confirmed that we were a champion of student press rights.”


reports, Winter 2007-08