Searching for momentum
Within the first 48 hours, the Student Press Law Center received 143 calls from the media. The calls from concerned students and advisers were off the charts.
There was no Internet back then when, on a snowy day in January 1988, the U.S. Supreme Court decided Hazelwood School District v. Kuhlmeier. The case upheld the decision of a public high school administrator in Missouri to censor student newspaper stories on teen pregnancy and divorce because the publication did not have a policy or practice establishing it as a public forum. The censorship was considered a reasonable educational response.
Former SPLC Executive Director Mark Goodman said the Hazelwood decision pulled the rug out from underneath free speech advocates.
“The immediate reaction was, ‘how do we portray this,’” Goodman said. “It was in the weeks and days that followed that we were suddenly confronted with the fact that we’re in a brave new world.”
Goodman describes the years before the decision as the “golden years,” when courts relied on Tinker v. Des Moines Independent Community School District. Under the Tinker standard, administrators could not punish student speech unless it would cause a “material and substantial disruption of normal school activities.”
In 1988, the Supreme Court wiped that protection away for many student journalists.
Within 48 hours, Goodman and other advocates decided that administrators and legislators had to be pressured to start conversations about their student media policies.
“Student journalists and media advisers historically had not been politically sophisticated,” Goodman said. “They didn’t really understand how lobbying for legislation worked. The first challenge we had was to point out how this could make a difference.”
The Hazelwood decision left it to local districts and state legislatures to create enhanced protections for student journalists. State laws provide a separate set of rights that were not impacted by the Supreme Court’s decision. Momentum picked up in the late 1980s and early 1990s as states passed student expression laws in reaction to Hazelwood.
Seven states have such laws, protecting public high school student publications from censorship: Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon. Washington, Pennsylvania and the District of Columbia have protection for student speech in their administrative codes.
Goodman said in the hours after Hazelwood, California’s existing law became the template for legislative change.
California is the only state that had a student free expression law before Hazelwood. Passed in 1977, California’s law was edited over the years to include additional protection for teachers and school personnel in public high schools and charter schools.
The first time the legislation was proposed, it didn’t pass. The Journalism Education Association, advisers and legislators began pushing for a state law to help student expression after several high school students were censored. Retired journalism adviser Gil Chesterton said several years later the bill passed.
“Support is the key to the whole thing,” Chesterton said. “I mean, even with the state law there are ways administrators can impact students by firing advisers or delaying the publication by going to court.”
Chesterton said California’s law isn’t well known to new advisers. He hears complaints from advisers who are pressured by administrators concerning publication content.
“That pressure trickles to students. Advisers fear the action of students could cost them their job,” Chesterton said.
While California’s law is more than 30 years old, student free expression is still a struggle.
Chesterton said one student newspaper ran an investigative piece about the district. The next year, the adviser was reassigned to teach five freshman English classes.
“These people don’t even know their rights,” Chesterton said. “Advisers and students need to come up with publication guidelines to avoid more issues.”
In 1990, Colorado passed its own student free expression law. The law states, “If a publication written substantially by students is made generally available throughout a public school, it shall be a public forum for students of such school.”
The law capitalizes on a free-expression loophole left by Hazelwood: making a publication a public forum.
“That’s something we realized in the beginning: loopholes, the things that still made protection of student press freedom possible,” Goodman said.
The Journalism Education Association was having a state workshop that fall and that’s all Colorado advisers could talk about, said Mark Newton, now national president of JEA.
Newton said the law is a way to train kids as they would be trained for anything else in life.
“Students have to be trained in the English language, in tools for shop class, math,” Newton said. “If we teach kids. ‘here’s what you need to do and here is the community,’ nine out of 10 times, they’re going to do what’s right.”
Newton suggests student journalists have a conversation with administrators about policies and the state law, so they know what can be published and what may get them into legal trouble.
“You need to know where you stand and know where you can go,” Newton said. “At the very minimum teachers and students need to know where they stand.”
In 1993, professor Bruce Plopper suggested a student free expression bill to a legislator. It failed.
Censorship of the student newspaper at Little Rock Central High School brought Plopper’s suggestion back into the light. Student editors at Little Rock Central were threatened with suspension if they published content about gangs and vandalism.
In defiance, students produced an “underground” newspaper issue spurring free expression advocates to meet with legislators. Supporters had about seven months to solidify the bill and gain support. Arkansas’ Student Publications Act passed in 1995.
Plopper isn’t happy with the final language of the law but he said school administrator organizations were threatening to lobby against the bill if the language didn’t change. Fearing a loss of support, advocates agreed to water down the bill. The act requires local districts to create their own student publications policies, which sometimes resulted in more restrictions on student speech.
“One administrative association sent out model guidelines for everyone to work from when creating policies in their district and, of course, they were very conservative and many gave power to censor material,” Plopper said.
The law states districts are supposed to consult publications advisers when creating the policy. Yearbook adviser Beth Shull said she and fellow advisers fought with their districts to be included in the drafting plans.
“I remember my superintendent at the time saying that he just wanted everyone to be calm,” Shull said. “In my district, it was a real fight to get my policy to reflect the freedom the students needed.”
Shull, who helped Plopper lobby for the bill, said some advisers were sent only an after-the-fact copy of the policy.
“It said, ‘here’s what we’ve come up with and deal with it,’” Shull said.
The new effort, Plopper said, is educating the educators about student free expression and making sure every district has a policy. Plopper said small communities with inexperienced advisers are hurting because advisers are less knowledgeable about the law.
In 2007, Oregon became the most recent state to pass a student free expression law. Goodman said there are several reasons for the 12-year gap after Arkansas. Legislatures became more conservative. School administrators become more effective at stopping legislation. And then Columbine changed the landscape.
After April 20, 1999, the day two students opened fire at Columbine High School in Colorado, Goodman said legislatures began seeing student rights through the lens of violence.
“Students’ rights became equated with the risk of violence,” Goodman said. “What happened as a result with that single incident was a push to curtail students rights.”
Goodman said legislation was still proposed but there wasn’t an enthusiastic push as there was right after Hazelwood was decided. The effort is being revitalized, as American values shift to more discussion of civic education and politics, Goodman said. The younger generation is becoming involved with legislation and politics, as proven by the presidential election of 2008, Goodman said.
Hawaii, Wisconsin and Illinois pushed student expression bills all the way through their legislatures, only to have them vetoed by their governors.
“Because I am confident that existing Department of Education policies sufficiently protect students’ right of expression, I believe school officials should be given the benefit of the Hazelwood decision,” former Hawaii Gov. John Waihee wrote in vetoing the bill there.
Former Wisconsin Gov. Tommy Thompson vetoed that state’s bill in a surprise move, arguing that local school boards should set their own standards.
Bills in several other states fizzled early in the process. Just this year, legislation was proposed in Nebraska and Vermont but died in committee.
Yearbook adviser Beth Shull remembers when she lobbied for legislation in Arkansas.
“I think the biggest fear of any adult when talking about students having rights it that they’re just teenagers, said Shull, adviser at Warren High School. “Who knows what students are going to say but they’re are aware of their responsibilities.”
Oregon implemented two free speech laws to protect student journalists in 2007. One applies to high schools and the other to college and universities.
Rob Melton, interim executive director of Northwest Scholastic Press, said he tried for 15 years to enact legislation. Finally Melton found the puzzle piece he needed: a state representative with a journalism background.
“The legislature that particular year wanted to do something that would be student centered,” Melton said. “The best thing I was able to do was find students and parents from more conservative parts of the state to talk about what would happen if their voice was silenced.”
Former state Rep. Larry Galizio read about a Washington state representative who brought his passion for student free speech to the legislature there.
“It showed me that we’re not reinventing the wheel,” Galizio said. “The republic that we have is the free exchange of ideas and in journalism, not all students who are writing for the student newspaper or online paper will become professionals but it’s such a cornerstone for our society. To hold them to a radically different standard is problematic.”
Melton said the biggest challenge now is administrators aren’t aware of the rules pertaining to student publications and as a result often censor students.
“Schools are a critical part of sustaining a democratic society,” Melton said. “What people must do every generation is create people who live and think in a democratic society. When you have a free speech law, it’s the opportunity to teach each generation to talk about issues.”
Wisdom of actions past
Twenty percent of the United States has student expression protection with the help of a state law or education code provision. Goodman said he wants to see 15 to 17 states enact laws in the next ten years to change the mindset of Americans. Censorship will still happen, he said, but laws are an excuse for legislatures to pay attention to scholastic journalism in public schools.
States that do not have student freedom of expression laws need to place pressure on legislators and gain support from both advisers and students, Goodman said. The key is keeping momentum.
Melton said democracy and free speech is a foundation for the U.S. and that doesn’t exclude students.
“The real argument is when some voices are allowed to be heard and others are not,” Melton said. “Full, enriched conversations can’t happen with that.”
Goodman said enacting a law isn’t just a case of writing your local representative.
“You can’t just go and say, ‘we really want this law,’” Goodman said. “You have to make the case and marshal your resources to justify this issue being a priority. Then you have to anticipate opposition.”
Shull said Arkansas is considered a conservative state so, “why do they have a student free expression law?” She laughs; the key she says was using lobbyists from advocating organizations and students sending letters to their legislators.
“Those letters had to have an impact, especially for the legislators from our district, because they knew those kids, knew their families,” Shull said.
Goodman said student expression laws are not an issue of the political left or right, because it’s not just one side being censored. Legislation needs support across the spectrum. Goodman warns it takes energy and effort from a group of people, not just one person.
Galizio, now president of Clatsop Community College in Astoria, Ore., said there is one big difference that could impact the outcome: professional and intellectual interest. Regardless of the legislation, if someone is interested, that helps, Galizio said.
“Don’t underestimate the strength of the opposition because there’s always concern on the part of school board members and principals,” Galizio said. “Communicate and work with the opposition throughout the process. Show them where it’s worked in other states.”
By Emily Summars, SPLC staff writer
reports, Spring 2012