Bob Bombast, veteran member of the Nutmeg Board of Education, is an avid reader of the Nutmeg Nation, the newspaper published by the journalism class at Nutmeg Memorial High School. Normally, the newspaper was filled with innocuous fluff about the charitable activities of the Student Council, but the latest issue was really different. Stories dealt with a variety of real-life issues, ranging from the impact of the war in Iraq on Nutmeg families to another corruption probe of state contractors. However, Bob was really surprised to read the lead story, “Lax Controls on Teacher Attendance,” an investigative report on teacher absences at Nutmeg Memorial High School, complete with the teacher names, dates of absence, and the reason for their absences (e.g., sick leave, personal leave, professional leave).
Bob called up Mr. Superintendent, and read him the headline. “So, what are you going to do about this embarrassment of the good teachers in Nutmeg?”
“Don’t worry about it,” replied Mr. Superintendent. “There is a new advisor for the newspaper, and apparently he needs a talking to. I’ll handle this.”
Later that day, Mr. Superintendent paid a visit to the new advisor, Sam Scandale. Mr. Superintendent got right to the point. He told Sam that the story on teacher absences was completely inappropriate. If students were to write articles concerning staff members, he cautioned, they had better only say nice things. “It is bad enough that we are harassed by that local rag, the Nutmeg Bugle. We certainly don’t want to embarrass ourselves.”
Sam was indignant. “I can’t believe my ears,” he cried. “The Board recognizes the vital importance of the First Amendment, and I am shocked that you would not.” With that, he pulled out a well-worn piece of paper and started to read:
Board Policy 1234.5. Student Free Press.
A free student press is essential to an enlightened school. The High School Administration shall establish a student newspaper to train students in journalism and to teach them the obligations and rights of a free press. Freedom of speech and freedom of the press, as guaranteed by the First Amendment, shall be accorded to all students and staff members who produce such a newspaper.
Adopted April 1, 1971.
“We will not be silenced,” Sam continued. “In fact, coincidentally the students are just wrapping up a new story on the expense-account reimbursements paid to the administrative staff. That should certainly spice things up around here.”
The policy was news to Mr. Superintendent, but he kept his cool and gave Sam an unequivocal message. “If that story sees the light of day, you are done here in Nutmeg. I will not only remove you as the advisor; you will be fired from your teaching responsibilities as well.”
Sam asked Mr. Superintendent to put that in writing, and Mr. Superintendent gladly obliged. A week later, however, Mr. Superintendent was surprised to see that letter again. It was attached to a lawsuit filed in federal district court alleging that Mr. Superintendent’s actions violated the First Amendment rights of the student editors and their advisor. Will Mr. Superintendent have to issue a retraction?
* * *
The United States Supreme Court has ruled that student newspapers do not enjoy the same free press rights as do newspapers more generally. Here, however, Mr. Superintendent may have crossed the line in his attempt to regulate the content of the school newspaper. Moreover, the Board policy presents a separate problem.
In 1969, the United States Supreme Court first recognized in Tinker v. Des Moines Independent Community School District that students have free speech rights unless school administrators can reasonably forecast that such speech will cause material disruption or substantial interference with the education process. In the 1980s, the Court refined this holding in two ways. First, it held in 1986 that school officials can regulate vulgarity in the school setting, irrespective of whether such vulgarity causes disruption. Then, two years later, it decided the landmark case of Hazelwood School District v. Kuhlmeier, which holds that school officials may regulate the school newspaper as long as such actions are based on legitimate pedagogical concerns.
The Hazelwood decision recognizes that the free speech rights of student editors must be balanced with the legitimate interests of school officials. Since the school newspaper carries the imprimatur of the school, school officials have significant say over what appears in the school newspaper. For example, in determining what content is appropriate, school officials may consider the developmental stage of high school students. Similarly, school officials may consider the legitimate privacy interests of students and their families. Indeed, in Hazelwood itself, school officials were permitted to spike a story on children of divorce, given the concern that the identities of the children and families involved would be disclosed through its publication.
This broad discretion is not without its limits, as a recent decision by the federal district court in Michigan illustrates. Dean v. Utica Community Schools (E.D. Mich. 2004). There, the student editor wrote a story about litigation against the school district over the bus fumes coming from the bus depot. When the superintendent saw the story, she told the advisor to kill it. In an opinion of great detail and careful analysis, the court ruled that there was in fact no legitimate pedagogical interest in preventing publication of this story. This decision is extraordinary in finding a violation of the forgiving standard applicable to school actions in such cases. However, it is a helpful cautionary tale for school officials who wrestle with such issues.
Mr. Superintendent may or may not have a legitimate pedagogical interest in preventing publication of information on expense account reimbursement (which, by the way, is public information under the Freedom of Information Act). However, irrespective of how a court would rule on this particular article, Mr. Superintendent’s general rule of permitting only “nice” stories would not withstand court scrutiny.
Mr. Superintendent may have a separate problem with the Board policy, which appears to confer free speech rights on students that are far more expansive than those guaranteed by Hazelwood. It is important that board members and administrators review the applicable policies (many of which were adopted in the 1970s) and make reasoned judgments about whether they accurately reflect the will of the board.
Finally, whether Sam has free speech rights here remains to be seen. Last month, the United States Supreme Court heard arguments in Garcetti v. Ceballos over whether public employees may make free speech claims arising out of their performance of job responsibilities. We expect clarification some time later this year.