Walking a fine (color) line
Students trying to write about race must struggle to address sensitive topics without triggering censorship
Only a few hours after the Little Hawk staff distributed its October edition — with a cover story about students’ attitudes toward race, including a colorful pie chart indicating 13 percent of students polled viewed blacks unfavorably and 2 percent viewed whites unfavorably — the principal pulled all remaining copies, saying the issue caused a disruption.
Mark Hanson, principal of Iowa City High School, said three separate incidents between black and white students broke out before he made his decision to collect the newspapers.
In each verbal altercation, the students were shouting about racism, he said. Teachers were able to separate the students before it escalated into a fight.
“This was in the name of school safety,” Hanson said, explaining that he has never pulled copies of the paper before and does not plan to change any policies regarding student publications.
The paper’s executive editor, Adam Sullivan, says the principal’s actions constituted censorship.
It is a pattern that student journalists around the country are running into. Articles involving race relations — racism, immigration, discrimination — touch on topics that are important but often attract negative and critical reactions from the community and student body — and in some circumstances, a backlash from the administration.
There is no magic test to determine if an article goes too far. Administrators who censor articles about race, fearful they will increase racial tensions or upset a particular group, usually claim they are trying to prevent a material disruption.
For student expression that is not “school sponsored,” the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District establishes that an administrator cannot censor student speech unless the school can show it would cause a “material and substantial disruption” of normal school activities or violate the rights of others.
School newspapers often operate under the more restrictive standards set by the U.S. Supreme Court’s 1988 ruling in Hazelwood v. Kuhlmeier, which gave administrators more control over school-sponsored outlets. But several states, including Iowa, have laws guaranteeing Tinker-like protections for all student expression, school-sponsored or not.
In interpreting the Tinker standard, lower courts have generally said that a material and substantial disruption is a physical event that significantly interferes with the normal operation of the school, such as a walk-out, a riot or a sit-in, said Adam Goldstein, the Student Press Law Center’s attorney advocate.
Goldstein said there are not many examples of student journalists being censored by administrators based on the material disruption standard, but many are connected to racially intolerant speech.
But a discussion about race alone will not cause a disruption.
There is no absolute test to tell what will cause a disruption, said Robert O’Neil, founding director of The Thomas Jefferson Center for the Protection of Free Expression. Without a blanket answer to what will cause a disruption, schools are left to decide on a case-to-case basis.
Administrators must rely on the history of the school, including racial problems in the past, and how similar scenarios played out in other schools, he said.
O’Neil said schools do not meet the standards for censoring speech simply because students are upset.
In the City High incident, Sullivan claims that Hanson’s actions were “illegal.”
Hanson said the fights did cause a disruption and that his actions were “absolutely not” illegal.
“There was a disruption at the school and I needed to find the source of the problem,” he said.
Goldstein said one fight is not a substantial disruption. But several fights that cannot be stopped in any other way might be.
“It depends on what else the school did to prevent the fights,” he said.
The First Amendment prohibits a “heckler’s veto” — when an individual reaction to someone exercising a legal right causes the government, law enforcement or public schools to silence the speaker rather than punish the person causing the disruption.
Goldstein said Hanson’s decision is a close call.
“On the one hand, schools aren’t required to wait for a riot before preventing one,” he said. “On the other hand, a verbal confrontation is just two students disagreeing, and a disagreement is not a disruption.”
Sullivan said the survey and editorial discussing the results were meant to create discussion about racism.
“We wanted to show everybody it’s not okay to sweep this under the rug,” he said. “Racism is one of those subjects you don’t touch. The administration wants to ignore the white elephant in the corner … and pretend that everything is great.”
Filling a need
When a Nebraska student newspaper published an issue in April with a series of stories focusing on the use of the “n-word,” the school district fielded angry complaints from parents, temporarily removed the principal and considered changes to the student publication policy.
Omaha Public Schools launched an investigation to determine how several articles and cartoons, which used the full spelling of the “n-word” in both its “er” and “a” endings, made it into the student publication.
Then-Editor in chief Sarah Swift maintains that the article addressed an important issue facing the students.
The Benson Gazette’s “n-word” series came out months after the Michael Richards incident, where the former Seinfeld star used the “n-word” six times in response to a heckler in the audience.
The issue was distributed only a few days after radio talk show host Don Imus was criticized for using racial language by describing the Rutgers University women’s basketball team as “nappy-headed hos.”
Swift said these incidents put racial speech fresh in the students’ minds and that it was important to discuss them with the student body.
After the issue came out on April 10, the school district placed Benson High School’s principal, Lisa Dale — who reviewed and approved the articles before publication — on administrative leave, but reinstated her three days later. She could not be reached for comment.
The Omaha public school district, in response to complaints, said the “n-word” articles did not belong in the student newspaper, issuing a press release stating that they have “never condoned and cannot support the actions which recently resulted in the inappropriate articles published.”
While the district might have considered the articles “inappropriate,” a school cannot legally censor student speech or publications just because some people find the words offensive.
O’Neil, director of The Thomas Jefferson Center, said that even with hate speech codes, “non-threatening, offending speech is seldom subject to sanctions.”
In the Benson case, O’Neil said discussing the “n-word” in the newspaper and printing the full version of the word would probably not be considered “materially disruptive.”
“There is a tendency to overreact,” he said.
The investigation — launched by the Omaha Public Schools shortly after the issue circulated — found that the staff did nothing wrong. Parents and community members stopped complaining and the staff continues to produce the newspaper without any policy changes.
“We are moving on,” said Luanne Nelson, school district spokeswomen. “There’s been no policy changes and all we are asking is that students be sensitive to race issues.”
Goldstein said an article in a student newspaper using the full “n-word” has potential to meet the standards of a material and substantial disruption, but the law requires more than mere “potential” to justify censorship.
“Students don’t write about controversial subjects because they want to cause a controversy,” he said. “They are writing about what is actually going on, whether that be racial tension or the use of the ‘n-word.’”
The school’s actions, including the subsequent investigation, constitute censorship, Goldstein said.
“Actions designed to discourage the next student who wants to speak is still censorship,” he said. “The schools don’t seem to get that there’s nothing wrong with saying ‘I don’t like this,’ but there is a problem with saying ‘I’m going to investigate this.’”
Despite some negative reactions, the student staffers stand by their decision to run the articles.
“We went to a school where you heard it every day,” Swift said. “We wanted to focus on when did the word start getting popular and why do people use it.”
The “n-word” series featured an article called “Rules of a Word” by Jeremy Bagby, two editorial cartoons, a student panel Q&A, surveys about the word’s usage, an opinion article and several student quotes with pictures.
Bagby’s article explained that the word comes with a set of unwritten rules, the first of which is that “no person of any other race can use it and the word can only be used with an ‘a’ ending, not an ‘er’ ending.”
Bagby, a black student, said he was assigned the article and at first did not have much invested it in.
“After reviewing the subject matter and writing the story a little, I started to get into it,” he said. “What I was really hoping to accomplish was to get a grasp on my feeling about the word.”
Swift said the staff’s intent was not to cause controversy. Instead, she said the staff wanted the articles to spark a dialogue within the student body.
“The way students are, you’ll see articles scattered on the floor because they are sick of reading about the football star,” she said. “They want to be engaged about something that actually matters to them.”
The incite provision
Even in states with anti-Hazelwood laws, students can face roadblocks when trying to publish articles that discuss racial issues.
Andrew Smith, then a senior at Novato High School in California, learned that first-hand after he published a column, “Immigration,” expressing his desire for stricter immigration enforcement in the fall of 2001.
His article suggested, “if a person looks suspicious,” immigration officials should “just stop them and ask a few questions, and if they answer ‘que?’, detain them and see if they are legal.”
In response, some students walked out of school and protesters complained to Principal Lisa Schwartz. She collected the remaining copies and sent a letter home to parents saying the article should never have been published, according to court documents.
Schwartz required students to submit all future issues of The Buzz to her for review
When Smith tried to publish his follow up piece, “Reverse Racism,” in February 2002, Schwartz suggested the students write a counterpoint piece to accompany Smith’s article, according to court records. Smith’s new opinion piece criticized affirmative action and politically correct names for minorities.
When administrators refused to publish his article, Smith teamed up with Pacific Legal Foundation, which filed a lawsuit on his behalf in May 2002 to have “Reverse Racism” published. The judge decided not to force administrators to run the article because they agreed to publish it in the next issue. It ran in the May 14, 2002, issue.
Smith continued to fight in court, arguing that the measures school officials took to delay publication were unconstitutional.
A California appellate court ruled for Smith in May. The court ruled “speech that seeks to communicate ideas, even in a provocative manner, may not be prohibited merely because of the disruption it may cause due to reactions by the speech’s audience.”
In September, the California Supreme Court declined to review the case.
Smith’s case is only the third on record addressing the California free speech statute, and it is the first one to look at the “incite” provision, said Paul Beard, his lawyer.
“Whenever free speech issues come up, this will set an important precedent for trial courts and school districts,” he said. “It will offer a high level of protection to free speech.”
The “incite” provision refers to a section of the California Student Free Expression Law. Besides speech that is “obscene, libelous or slanderous,” officials can restrict student speech that “incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”
The school argued that Smith’s article was likely to incite disruption of the orderly operation of the school.
One area where schools have been able to use the material disruption provision in Tinker is to prohibit Confederate flag symbols on campus.
“The courts have gone different ways,” Goldstein said. “Part of that is that the Confederate flag means different things to different people in different parts of the country. The reaction to a Confederate flag in Maine is different [than]… in Georgia.”
The ambiguity of the symbol makes it hard to anticipate the reaction, he said.
In order to legally censor a Confederate flag image, school officials would have to show it is a symbol likely to cause a disruption based on the history of the school and the region.
For example, a federal judge threw out a case last August filed by three students in Missouri against Farmington High School after they were punished or told to remove clothing with a Confederate flag.
U.S. District Judge Jean C. Hamilton ruled that because of racially motivated incidents at the school over the previous year, school officials had reason to believe the Confederate flag clothing would cause a material disruption by increasing racial tensions. The case is still in the appeals process.
When covering racial issues, student journalists can avoid problems by exercising sensitivity, O’Neil said.
“Put yourself in the position of the person or group you’re writing about and consider how it might affect you,” he said.
O’Neil said students also should watch out for generalizations, especially in cartoons.
“This includes making sure not to engage in stereotypes, caricatures, simplistic characterizations,” he said.
But Goldstein said student journalists should not shy away from covering racial stories.
“You have to ask what is journalism for,” he said. “At the end of the day, it is a service profession. You’re trying to educate the public. If you don’t tell them the truth you’re not doing that. And if you offend them and they don’t read it, you’re not doing that either.”
reports, Winter 2007-08