Following the Supreme Court's 1988 decision in Hazelwood
School District v. Kuhlmeier, which significantly diminished
the federal constitutional protection traditionally afforded public
high school student journalists, state lawmakers and others approached
the Student Press Law Center to seek our guidance in drafting
legislation that would provide state legal protection for the
free expression rights of their students. The following model
legislation, which borrows in part from existing state statutes
and reflects the law that existed in this country for at least
the 19 years prior to the Hazelwood decision, was drafted
with the intention of creating the highest quality student publications
and the most responsible student journalists.
Version 1
A. Students of the public schools shall have the right to exercise
freedom of speech and of the press including, but not limited
to, the publication of expression in school-sponsored publications and other news media, whether or not such media or other means of expression
are supported financially by the school or by use of school facilities
or are produced in conjunction with a class, except as provided
in subsection (B).
B. Nothing in this section shall be interpreted to authorize
expression by students that:
1) is obscene as to minors as defined by state law,
2) is libelous or slanderous as defined by state law,
3) constitutes an unwarranted invasion of privacy as defined
by state law, or
4) so 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 material and substantial
disruption of the orderly operation of the school. School officials
must base a forecast of material and substantial disruption on
specific facts, including past experience in the school and current
events influencing student behavior, and not on undifferentiated
fear or apprehension.
C. Student editors of school-sponsored media shall be
responsible for determining the news, opinion and advertising
content of their media subject to the limitations of this
section. It shall be the responsibility of a journalism adviser
or advisers of student media within each school to supervise
the production of the school-sponsored media and maintain
the provisions of this chapter. This section shall not be construed
to prevent an adviser from teaching professional standards of
English and journalism to the student staff. No journalism adviser
will be fired, transferred, or removed from his or her position
for refusing to suppress the protected free expression rights
of student journalists.
D. No student media, whether school-sponsored or non-school-sponsored,
will be subject to prior review by school administrators.
E. No expression made by students in the exercise of free speech
or free press rights shall be deemed to be an expression of school
policy, and no school officials or school district shall be held
responsible in any civil or criminal action for any expression
made or published by students unless school officials have interfered
with or altered the content of the student expression.
F. Each governing board of a school district shall adopt rules
and regulations in the form of a written student freedom of expression
policy in accordance with this section, which shall include reasonable
provisions for the time, place, and manner of student expression
and which shall be distributed to all students at the beginning
of each school year.
G. Any student, individually or through parent or guardian,
or student media adviser may institute proceedings for injunctive
or declaratory relief in any court of competent jurisdiction to
enforce the rights provided in this section.
Version 2
This version is intended to provide similar protections
for student press rights as version 1, but in a different form.
It relies on statements in the Hazelwood v. Kuhlmeier
decision that said publications which are "public forums"
could only be censored under the more protective Tinker
standard.
All school-sponsored publications and news media produced primarily
by students at a public school, except for those intended for
distribution or transmission only in the classroom in which they
are produced, shall be public forums for expression by student
reporters and editors at such school.