Conn. Senate considers Anti-<i>Hazelwood</i> bill

CONNECTICUT ? A Senate bill introduced in Connecticut late last month and scheduled for public hearing Friday marks another state's attempt to fortify the legal protection of student publications eroded by the Supreme Court's Hazelwood decision.

Proposed by the American Civil Liberties Union of Connecticut, SB 1056 would prevent students from being punished for their speech, school-sponsored or not, provided it is not "demonstrably likely to cause material and substantial disruption to the educational process" or constitute an invasion of privacy.

Connecticut is the third state this year ? along with Kentucky and Washington ? to consider student speech and expression legislation. Another bill introduced in Connecticut in January, SB 478, also seeks student expression rights, but is focused in scope on off-campus electronic media.

Both Connecticut bills come in the wake of Avery Doninger's 2007 lawsuit, decided in January by a U.S. District Court judge, regarding the now-graduated high school student's punishment for disparaging remarks she wrote about school administrators on her off-campus blog. Doninger sought relief under the First Amendment, but the court granted qualified immunity to the school administrators named in the suit, finding that the school did not violate any clearly established constitutional right.

"We were unsuccessful in litigation, so we thought the way to go about it was with legislation," Andrew Schneider, executive director for the ACLU of Connecticut, said. "The courts were not going to be our friend on this one."

Schneider, like other First Amendment advocates across the country, has been pushing for restoration of student expression rights siphoned off by the U.S. Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier, which greatly increased administrative censorship authority over many student publications.

Prior to 1988, the Tinker v. Des Moines Independent Community School District ruling was the measure for most student media censorship cases. The Supreme Court, in its 1969 decision, said students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The ruling held that school officials could not punish or prohibit student speech absent a reasonable belief that it would result in material, substantial disruption of school activities or impede upon others' rights.

"The Tinker test has been diluted and exceptioned to death," said Marty Magulies, cooperating attorney for the ACLU and drafter of SB 1056. "I would like to see Connecticut restore that standard."

While most student expression laws prohibit speech that causes a substantial disruption to the school learning environment, "disruption" is increasingly being interpreted as "inconvenience," Magulies said, pointing specifically to the Doninger case.

In the blog post Doninger was punished for, she criticized school administrators over a concert scheduling decision and encouraged students and parents to contact the school superintendent's office to "piss her off." This attempt to flood the office with calls, Magulies suggested, constitutes an inconvenience, not a disruption.

"[SB 1056] would restore the rigor and vitality of the old disruption test," he said.

Detractors of similar proposed legislation in Kentucky and Washington often cite school liability issues and the need for a controlled learning environment for student journalists in their opposition to the bills.

SB 1056, like SB 5946 in Washington, explicitly addresses school districts' liability, saying districts and schools would not be held liable for any student speech as long as no school official instigated or encouraged unlawful student speech. The bill also protects teachers against retaliation for refusing to engage in unlawful censorship or for reporting violations of students' speech rights.

If passed, SB 1056 would make Connecticut the ninth state to adopt student free press legislation. Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon all have laws restoring to high school and college media the First Amendment protection that was reduced by Hazelwood. Illinois law provides similar protections for college student media only.

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