What began as a routine inbox check quickly turned into a near-nightmare for Ben Harwood, the adviser of Seaholm High School’s student newspaper, The Highlander.In fall 2009, Harwood received an e-mail that said his district’s publications policy would soon be changed, due to a procedural update by a company named NEOLA.
The company’s name didn’t ring a bell for Harwood. The acronym didn’t spell out anything familiar. All Harwood had to go on was his reporter’s gut instinct, screaming that something was wrong.
“It just didn’t seem to be quite right,” he said. “Something just seemed to be off.“Harwood’s instinct turned out to be correct — this proposed policy update could severely limit his newspaper’s ability to publish freely.
“Where is this coming from? What provoked this?” The Highlander’s co-Editor-in-Chief Lanie Barron said she wondered when the update was first proposed.
Student press advocates recently began to question how this company’s standardized publications policy can affect and even limit student First Amendment rights.
“These policies that they come up with are pretty cookie-cutter,” said Brian Wilson, treasurer of the Michigan Interscholastic Press Association. “It’s a one-size-fits-all, where they’re trying to just sort of throw something out there that will work for any school district.”
The Northeast Ohio Learning Association (NEOLA) is an educational consulting company that sells almost 400 pre-written policies to school boards in seven states, with topics ranging from structuring safety patrols to organizing student fundraisers. “We’re a consulting firm that provides people with options,” NEOLA President Dick Clapp explained.
Clapp served as the superintendent of Woodbridge Local School District in Ohio for twelve years, before purchasing NEOLA and retiring in 2000, according to an article in the Akron Beacon Journal.
To explain Publications Policy 5722’s update — the update Harwood faced — to school administrators, NEOLA’s website features an hour-long PowerPoint webinar, narrated by Clapp and several attorneys.
The webinar details how to limit student free expression, so as to “prevent unnecessary litigation and unwanted publicity,” says one of the presenters.
NEOLA, which operates in Florida, Indiana, Illinois, Ohio, Michigan, Wisconsin and West Virginia, recently changed its Publications Policy 5722, giving school districts increased latitude to regulate student expression. Clapp said NEOLA does not operate nationally because it would be too cost-prohibitive.
Should a district use this update, their policy will have two different parts: a base option accompanied by additional add-on clauses. Districts choose one of four base options — none of which are open public forums (a choice Clapp compared to “the town square”) — varying in degrees of restriction.
Option 1 — which Clapp likens to the previous edition of Policy 5722 — employs the most administrative oversight, while Option 4 grants students the most responsibilities and control over their publications.
The Supreme Court’s 1988 Hazelwood School District v. Kuhlmeier decision recognized that student media can operate either as a “limited public forum” or a “non-public forum.” Students in a “forum” publication enjoy greater editorial autonomy than in a Hazelwood publication, which administrators can more readily censor.
The executive director of the Student Press Law Center, Frank LoMonte, said that Option 1 cannot legitimately be called a “model” because it strives to give students the fewest rights allowable by law, and may even go further than the law allows.
“A Hazelwood policy is one inch away from being unconstitutional,” LoMonte said, calling Option 1 “an extremist and unbalanced policy.”
The Option 1 Argument
Despite NEOLA’s insistence that the company does not care which option a district chooses, Wilson believes NEOLA and its attorneys advocate for the most restrictive policy — Option 1 — both on paper and in person. He said the order of the options — from most restrictive to least restrictive — is misleading to readers.
“It kind of sets up a hierarchy of ‘hey, the number one policy is the one that you should do,’ “ Wilson said.
To John Bowen, the webinar strongly supports the highly restrictive Option 1. Bowen is the assistant director for the Center for Scholastic Journalism at Kent State University — a national organization working to expand journalism education and editorially independent student media.
“It’s negative toward teachers, it’s negative toward students,” he said of the webinar. “It’s an ‘us versus them’ attitude.”
Bowen has been in contact with NEOLA in an attempt to revise the policy to be more favorable to students, including the removal of an add-on provision that can limit political speech. The Center will not endorse any of the four options in their current forms, because while the options for limited-purpose public forms are more student-friendly than the nonpublic forums, they still include prior review or restraint in the case of unprotected speech, which is not defined in the policy.
Clapp, however, defends NEOLA’s claim that it does not advocate any particular option, but that the decision should reflect individual school and community values. He said he instructs NEOLA associates who work with individual districts not to give any of their own opinions to the clients.
The attorneys dominate the webinar, explaining the benefits of administrative control over student publications. At one point it is clearly stated that students’ rights can be restricted, if done properly.
“Many of you have, as I say, been Tinker’d to death,” one lawyer said, referring to the 1969 Supreme Court decision Tinker v. Des Moines Independent Community School District that affirmed that students do not lose their First Amendment rights at the schoolhouse gate.
“I’m not even sure what a schoolhouse gate is,” he added.
The lawyers stressed the importance of tying the media to curriculum, as well as to community values, in order to maintain district regulation of student media.
“So in other words, if you’re teaching that pre-marital sex or teen sex is not a good thing, you can make sure that your publications don’t laud the attributes of pre-martial sex by teenagers,” one said.
Clapp could not clarify that statement, but said such restrictions must be content-neutral. Clapp added that there is a gap between case law and community understanding, as local residents are probably not well versed in the Tinker and Hazelwood decisions. He said that most citizens believe the school administration is liable for the paper’s content, even though that may not be the case.
“In the court of public opinion, where you’ve got to go out and pass school levies to keep teachers hired and programs operating, that may not be true,” Clapp said.
In addition to the four options, districts can pick and choose from a variety of other add-on clauses to supplement their policy’s base option, most of which further limit student free expression.
“The combined effect of the policy is both likely unconstitutional and completely deprives the editors of any shred of decision-making discretion,” LoMonte said.
Such clauses include: the ability to prohibit political speech, where publications cannot endorse any candidate or ballot question; the ability to ban or prior review advertising; the ability to require bylines to accompany all work; the ability to mandate that publications leave space for rebuttals; and the ability to limit the distribution of the media.
The New Frontier
New incidents of NEOLA activity in Michigan have increased, according to MIPA Executive Director Cheryl Pell, who recently saw five instances of districts entertaining a switch to the company’s updated policies.
Pell says many Michigan school districts seem to be willing to throw out a good practice for a bad policy.
“My NEOLA file just keeps getting thicker,” she said. “I’ve never had that many. If there are five, there are many more that don’t even know the policy exists and don’t even maybe know that their school boards might be trying to push it through.”
Some of these additional clauses will likely accompany Option 1 in the Plymouth-Canton Community Schools’ publications policy, which Mary Lou Nagy, adviser of the student newspaper The P-CEP Perspective, expects will be approved by the end of the school year. Bob Hayes, the district’s director for student services and the district’s attorney Lisa Swem of the Thrun Law Firm in Lansing, Mich. — who does not work for NEOLA — said the protection and control available to the district in Option 1 made it the most appealing. The Plymouth-Canton policy leaves room for the district to limit political speech on the school level. It would not allow the paper to make endorsements in school-related elections or bond issues because the district pays for the adviser, Hayes said.
“It’s school-related issues that we don’t want them to take sides on to make it appear like there’s a conflict of interest between the school employee and the local school elections,” he said.
But Pell argues that students must be able to report on these issues.
“Who better to do it than the consumers of the school?” she said. “They’re the clients of the school, they’re the only ones who can cover the school really well, if they’re taught well.”
Nagy said the newspaper’s current practice — although on paper it is an old NEOLA policy — acts as an open forum. She works with the students directly on content, without administrative oversight.
If enacted, this policy would change the entire journalism program, Nagy said. Some students have already begun to consider leaving the paper, for fear of censorship. Advertising will also be restricted should this policy pass, as administrators will have the power to prior review or restrain ads, Nagy said.
“It’s difficult, because that’s the only place where we get our money from,” she said. “We are not funded in any other way.”
Nagy worries administrators will not review newspaper pages by deadline, because they also must read content from the yearbook, the radio station and the morning announcements under the proposed policy’s guidelines.
If the P-CEP Persepective does not make its deadlines, it could cause problems with advertisers and the printer, Nagy said.
“It’s just uncharted territory,” she added.
A Happy Ending
Some advisers are fortunate to have escaped this restrictive policy.
Harwood and his students were able to craft a policy to match their current practice — a limited purpose public forum without prior review or restraint — thanks to a good relationship with the administration and the district’s deputy superintendent for educational services, Paul DeAngelis.
Harwood knows how lucky he is.
“If we would have used one of the stricter NEOLA policies and not changed it, the program could very well have died.”
By Stefanie Dazio, SPLC staff writer
reports, Spring 2010