The First Amendment in Schools: Resource Guide: Student Publications

What role do student publications play in the school setting? The answers to this question may reveal different expectations and goals for student press and literary publications, depending on who is asked. Administrators may view student publications as representing the school in the community at large, or as an adjunct to the English curriculum. Or they may see them as providing opportunities and experiences for students learning how writers, reporters, and editors work, by functioning as they would in real life. Faculty advisors and student authors may see them as an open forum for student views, or as a training opportunity where students learn from their experiences and mistakes acting as reporters, writers, and editors. It is important to understand the various functions student publications can perform in the school setting, to avoid controversies about who controls the content of such publications.

In general, administrators have the authority to decide the purpose and objectives of student publications. If they conclude that journalistic independence is an objective, it is unlikely that courts would interfere with policies to implement this goal. At the same time, courts would also be unlikely to interfere with a determination by school authorities to exercise oversight, as long as they are not trying to suppress dissent or disfavored ideas.

A handful of Supreme Court decisions define the contours of students’ rights and administrative authority in this area. The landmark Supreme Court decision in Tinker v. Des Moines Independent Community School District (1969) overturned the suspension of several students for wearing black armbands to school in protest against the Vietnam War, acknowledging that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Under Tinker, student expression would have to threaten substantial disruption of the educational environment to be subject to suppression. Tinker’s applicability to student publications is tempered by two subsequent decisions, however.

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) upheld the school’s ability to censor student expression on campus that is vulgar, lewd, or obscene. Hazelwood School District v. Kuhlmeier (1988) upheld the authority of school officials to control content of school publications for educational purposes or to insure that it represents the school accurately and appropriately. These cases define the limits of school authority over student expression and speak to the legality, but not necessarily the wisdom, of speech-restrictive practices and policies.

The Court’s ruling in Hazelwood is generally viewed as granting educators considerable latitude to control the content of student publications, if they so for legitimate educational reasons and not out of hostility to particular ideas. Judicial deference to educators under Hazelwood has permitted restrictions on student publications, often without careful scrutiny of the educational rationale offered. As a result, some states have enacted what are commonly referred to as “anti-Hazelwood laws” to restore student free speech protection.

State “Anti-Hazelwood” Laws: Since 1977, California has had a law on its books protecting student expression. In its present form, this section of the California Education Code, No. 48950, says school districts cannot make or enforce any rule subjecting a high school student to disciplinary sanctions on the basis of speech or other communication that–outside campus–is protected by the First Amendment or Section 2 of Article 1 of the California Constitution. Students can take civil action to obtain legal relief and the court can award attorney’s fees to a prevailing plaintiff in a civil action. This does not apply to private religious secondary schools, and nothing prohibits disciplining students for harassment, threats, or intimidation. According to the code, free speech rights are subject to reasonable time, place, and manner regulations.

Five other states–Massachusetts, Iowa, Colorado, Kansas and Arkansas–have enacted anti-Hazelwood legislation since 1988. Student press defenders are pushing for similar laws in other states and advocating other state-level protections. At Oregon’s Brookings Habor High School where student journalists can refuse to publish a newspaper rather than submit to prior review, legislation is pending before the legislature that would protect student newspapers from prior review.

Student articles about drug use, teen sexuality, death, suicide, divorce, and other controversial topics, are most likely to generate censorship controversies. School officials typically seek to censor such articles on the ground that they reflect badly on the school, or that they are inappropriate subjects for students, or that they are offensive to some readers. In one recent situation at Hinsdale Central High School outside Chicago, the principal censored then destroyed a school paper report on school violence. The story “Scared of School,” was to be published on the second anniversary of the killings at Columbine High School in Colorado (April 2001). The principal objected to the headline of one story, “Getting a Gun,” and to “alarmist” illustrations, including a hooded figure with a gun.

Regardless of whether the principal has the legal authority to suppress a story, it is not always the best course of action. In the Hinsdale case, students published on the Internet, and a local paper editorialized in support of the article and included its Web address. The school board later issued a statement that censorship would only exacerbate the problem of violence in schools. In another recent incident in Wisconsin, a school principal decided to pre-review the student magazine before publication. The students, considering it a forum for the expression of student views, fear that the magazine will lose its personality and appeal, in which case they may decide to publish off-campus.