‘Anti-Hazelwood’ freedom of expression laws only go so far


An SPLC audit of school district publication polices in Colorado and Oregon finds many of the policies are at odds with the states’ student free expression laws, designed to give students more rights.





Following the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, there were movements in several states to enact free expression laws that would provide student journalists with more rights. The laws vary by state, but generally are designed to counteract Hazelwood’s effects by protecting student journalists from administrative censorship.

Massachusetts enacted its student free expression law first, followed shortly by Iowa and Colorado. In the years since, Arkansas, Kansas and Oregon have passed similar “anti-Hazelwood” laws. California had student expression laws in place before the Hazelwood ruling.

On paper, these state laws offer students significantly expanded speech rights beyond those afforded to students under Hazelwood, which has been cited as a defense for school censorship of curricular-based student publications, such as those produced as part of a class.

In practice, a Student Press Law Center audit of school districts in two of the states — Colorado and Oregon — found almost none of the student publication policies at the district level comply fully with the state’s law, and actually restrict students’ rights to freedom of expression and of the press. Many of the wayward policies are traceable to model publication policies created by school board associations in the two states.

The audit, based on public records provided by the school districts, looked at the 15 largest districts in Colorado and the 25 largest in Oregon. Together, those districts make up about two-thirds of the public school population in each state.

Colorado passed its Student Free Expression Law in 1990, defining publications written by students and generally available at a school as public forums. The law gives students editorial control over the publication’s content while still allowing the paper’s adviser to supervise the production of the paper.

The law also prohibits any kind of prior restraint by the school, unless the content is obscene, libelous or incites students to commit unlawful acts.

Oregon’s Free Expression Law, passed in 2007, is similar. It gives high school (and college) students the right to exercise freedom of speech even if the student publication is school-funded or produced in a class. As in Colorado, the law only prohibits content that is disruptive or otherwise illegal, including libelous material or that which constitutes an invasion of privacy.

Both student free expression laws also require school districts to draft their own policies for student expression. This gives districts the ability to give students even more rights than those afforded by the First Amendment or by state law.

None of the audited districts chose to do so. Of the 40 district publication policies reviewed by SPLC attorney Adam Goldstein, 38 did not comply with the law’s minimum requirements, including all of the Oregon school districts that were reviewed. Six of the 38 non-compliant policies were very close to fulfilling the laws’ requirements, but fell short in a minor way.

The SPLC traced many, but not all, of the policies back to school board associations in each state. At least 17 Oregon school districts either completely or partially adopted the Oregon School Boards Association’s model as their own, while eight in Colorado have done the same with the model provided by the Colorado Association of School Boards. Both of the model policies deviate from the law, Goldstein said.

“Cookie cutter policies” like those provided by the school board associations are becoming increasingly common, said John Bowen, chairman of the Scholastic Press Rights Commission and a Kent State professor.

Like many school board associations around the country, Colorado and Oregon’s receive funding from school districts throughout the state who pay membership fees using state taxpayer money.

OSBA released its model policy to the SPLC upon request. CASB refused to release its model, saying the policy was intended only for members. Colorado’s open records law classifies the group as a local government-financed entity, exempt from many of the records law’s provisions.

Kathleen Sullivan, CASB’s chief counsel, threatened legal action if the SPLC sought the policy from school districts themselves through public records requests. By law, if the district maintains the record, it is subject to release under the records law regardless of where it originated. The SPLC eventually obtained a copy through such records requests.

The CASB policy says that student publications must “contain a disclaimer that expression made by students in the exercise of freedom of speech or freedom of the press is not an expression of Board policy.”

“It’s not that there’s anything wrong with disclaimers, it’s that it can’t require students to make a statement,” Goldstein said. “That’s compelled speech. Legally, they can’t require it for the same reason you can’t require students to say the Pledge of Allegiance.”

In addition, an editor’s note says school districts in the state “are not required by law to adopt a policy on” student publications, which directly contradicts the statute.

The editor’s note also suggests that school boards “may want to consider a more conservative approach,” adding that the statute has never been tested in courts and that some believe boards “can be more restrictive about who exercises ultimate editorial control.”

Jeri Fleuter, CASB’s associate executive director of policy services, declined to comment the group’s policy.

In Oregon, the association’s model says that high school publications cannot contain material that “is factually inaccurate or does not meet journalistic standards established for school-sponsored media.”

That’s good advice for avoiding libel lawsuits and maintaining editorial credibility, but there’s is nothing in the state statute requiring factual accuracy or professionalism in student publications, Goldstein said.

Peggy Holstedt, OSBA’s director of policy services, said it’s her understanding that the language is allowed.

“They can’t produce things that are not factually accurate,” Holstedt said.

Reliance on school board association policies

The audit shows school districts rely heavily on the model policies for guidance and often adopt the models with few, if any, changes. OSBA’s policy offers a mix-and-match of options within the policy and instructs school districts to choose one to adopt, noting in a disclaimer that “the policies CANNOT be adopted in their current formats.”

The model policies don’t offer districts guidance as to the law itself, nor do they list which parts of the policy can be removed or modified while still complying with the law. The absence of such guidance appears to be responsible for problems with a majority of the Oregon district policies that are in tension with the law.

OSBA’s model policy includes policies for elementary and middle schools, stating that articles may be “restricted or prohibited ... pursuant to legitimate educational concerns.” In the section on K-8 publications, the policy identifies potentially censorable material as that which is “poor written, inadequately researched, biased or prejudiced,” in addition to work that is “inappropriate” for the age of the audience or advocates or condones the use of profanity.

Also censorable under in the K-8 section of the policy is work that the public might reasonably perceive to “bear the sanction or approval of the school,” a line that echos the Hazelwood ruling itself, where the Missouri student newspaper in question was seen as bearing “the imprimatur of the school.”

The anti-Hazelwood protections in Oregon state law don’t extend to elementary or middle school students. But sixteen school districts have removed the K-8 reference, effectively applying these standards to high school publications, even though it is at odds with the state’s law.

Lisa Freiley, OSBA’s director of legal, labor and PACE services, said the association’s model policies are just a suggestion for schools. Freiley said it’s the districts responsibility to make sure the policies they adopt are actually legal and effective.

“The policy statement is not intended to be a be-all and end-all statement,” Freiley said.

More than half of the reviewed policies in Colorado used the school board association’s model, though it is unclear whether or how many of the remaining districts reviewed the model but decided to take the advice of the editor’s note and adopt a more conservative policy.

Despite the school board association’s models, districts ultimately do have the final say on what is included in their policies on student publications — and as Freiley says, the responsibility to ensure compliance with the law rests with school districts themselves.

Oregon’s Roseburg school district uses OSBA’s model because it’s convenient, said Larry Parsons, the district’s superintendent. He said that he personally supports greater student free expression rights but that he doesn’t see much support for that across the state.

“They don’t give up their rights just because they’re going to school,” Parsons said. “The ebb and flow of student expression is changing. It feels like we’ve been in a more conservative mode now.”

Maureen Wheeler, a spokeswoman for the Beaverton school district, said the district typically uses OSBA’s policies as a model, supplementing them with additional guidelines as they see fit. Beaverton’s publications policy is virtually identical to OSBA’s, with no noticeable additions.

Salem-Keizer school district, the second largest in Oregon, is one of a handful of districts in the state that writes its own student publications policy.

The board’s policy is shorter than most — only three sentences long — but has faults as well, Goldstein said. The policy says that student publications must be “free from discrimination, harassment, prejudice, and racism” and that “verbal abuse of any person is not permitted.”

“The reason why these things are First Amendment protected to begin with is that they mean different things to different people,” Goldstein said. “The government just isn’t supposed to be forcing us to like each other or get along, which is what that’s trying to do.”

Salem-Keizer Chief of Staff Mary Paulson said that the policy has served them well.

“We have pretty clear language,” Paulson said. “We try hard not to duplicate what the state law says.”

Paulson said the school board has looked at OSBA’s model policy, but as of now prefers its own.

Four of the Oregon school districts — Centennial, Medford, Springfield and West Linn Wilsonville — have adopted policies regarding freedom of expression but not student publications, a direct violation of the state’s law. Centennial’s policy directs school principals to create policies, but the law requires the policies to be adopted by districts.

Medford’s freedom of expression policy, adopted in 1981, allows schools to review and restrict students’ speech if any school official thinks that a “student is unaware of the possible consequence of his/her expressions.”

“I don’t think there’s a reason to be more specific,” said Phil Long, Medford’s superintendent. “It aligns us where we need to be.”

Long said the district would consider adding a policy for student publications if it received a complaint.

Some district policies, like Cherry Creek’s in Colorado, are very close to being compliant. Cherry Creek’s policy defines libelous statements as “probably false,” which is less stringent than the actual standard of libel. To be libelous, a statement must be proven false, not “probably false.”

Of the eight audited schools in Colorado that use CASB’s model policy, Cherry Creek is one of two that removed the language requiring a disclaimer. Aurora includes it in the policy as a recommendation.

Advisers and students say the policies in place at the district level don’t necessarily correlate with how their own journalism programs operate. A student newspaper’s relationship with its principal can have a lot more of an impact than the district’s policy, they say.

Karen Rosch formerly advised Eye of the Storm, the student publication at Summit High School in Oregon’s Bend La Pine school district. Bend La Pine’s policy is another virtual copy of OSBA’s model policy, but Rosch says it hasn’t had an effect at her school.

“They don’t follow that policy,” she said. “It’s up to the discretion of the principal. It’s about the relationship you have with your principal.”

Jim Rotramel, who advises Aloha High School’s Voice of the Warriors in Oregon’s Beaverton school district, credited his school’s principal with flexibility in spite of the policy adopted by Beaverton’s board of education.

“Maybe it’s our principal’s approach to it, but I don’t feel that the student’s voices are being silenced,” Rotramel said. “It tends to be more of his own discretion, though we sometimes talk to him in advance about an article we’re doing.”

For schools in Colorado, many describe similar situations, with principals and other administrators making their own judgments regardless of the policies.

“I’ve personally have never had any problems,” said Jeff Likes, who advises The Owl at Boulder High School in the Boulder Valley school district. “The district itself has been very good about following state law.”

Cam Chorpenning, the editor-in-chief of The Silver Quill at Poudre High School, said that his paper has had to fight to run some articles but hasn’t been stopped from publishing what the students want.

Poudre’s policy is one of the 13 in Colorado that doesn’t comply with the law. It allows student editors to determine content for the publication “subject to review and approval by the publications instructor.” Under Colorado law, prior review, but not prior restraint, is allowed, and advisers and schools can censor content only if it meets specific criteria, Goldstein said.

Poudre administrators could not be reached for comment.

Chorpenning said that at Poudre, the paper is subject to prior review. Last year, a teacher on the school’s student publications committee tried to stop a story about a dance because the article mentioned grinding and other activities. The story was published, in part because the paper’s adviser encouraged the students to push for it, Chorpenning said.

Picking from a menu

The conflict between state law and many of the policies are symptoms of a bigger divide between school administrators and the journalism community.

School board associations get caught in the middle. Holstedt, OSBA’s director of policy services, said the school board association’s job is simply to provide the policies, not to help districts bridge that divide. Armed with model policies, it’s up to the school districts to decide on the final policies themselves. Most of those school board members and administrators don’t understand much about journalism and generally aren’t open to giving students a large amount of control over publications, said Dick Clapp. Clapp is the chief executive officer of NEOLA, a for-profit corporation that sells model policies on various issues to school districts in seven states, including Florida, Indiana and Ohio. “All they read about in their literature is the horror stories,” Clapp said. “They think we need to take a very strict approach instead of a finding a good adviser.” Clapp said it could be helpful for representatives of the two sides to meet and discuss the issue of censorship.

“My experience with school boards is that they don’t like being told they’re wrong. So, say, ‘Here are some alternative ways of thinking about this. Here’s why it would be a good idea to give more latitude to students.”

NEOLA’s model policies for student publications originally gave school districts two options, both of which establish student publications as limited forums and allow administrative censorship. Bowen worked with NEOLA to develop two other options giving students more rights, but all four are presented without any explanation of the pros and cons of each that could help school district’s decide which to adopt.

“The main problem with their policy is that they don’t want to take a stand and say to a school system, ‘This is what you should do,’” Bowen said of NEOLA’s policies. “They want to say, ‘We’re gonna give you a menu, and you’re going to pick from the menu what you want,’ at least that’s what they told us.”

Bowen credits NEOLA for working with journalism groups to improve the policies for students, but says not all groups are as proactive. And all could take a harder line in advising districts, Bowen says. School board associations should tell districts what they need to hear, not just what they want to hear, he said.

Failing that, it’s up to student journalists and advisers to be proactive in examining their school district’s policies, said Karla Kennedy, the executive director of the Northwest Scholastic Press Association. They need to be more involved with the schools and the districts and constantly remind them what the law does and does not allow, she said.

Students and advisers should also try to get weak policies fixed, Bowen said. “If the policy is weak, then the administrator can come back to it and say, ‘we were just enforcing policy that you guys haven’t said anything about before,’” he said.

By Jordan Bradley, SPLC staff writer. Contact Bradley by email.


reports, Winter 2013
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