Attention attorneys, a ? for you....

Parent Cafe
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<p>I am preparing a speech for the local school board, and in the process, I was researching some of the legal decisions pertaining to student publications. In the case of Hazelwood School District vs. Kuhlmeier (1988), the Supreme Court ruled that administrators of a school district <em>DO</em> have the right to pull material that is “inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”</p>

<p>My question is this:</p>

<p>Given that ruling, how is it that six states have passed student publication statutes that are in conflict with and violate that Supreme Court ruling? Can states just up and pass different laws, even if the Supreme Court of the U.S. issues a ruling such as that? If so, how?</p>

<p>Pardon my legal ignorance. I’d really love an explanation if there is someone out there who can provide one. Thanks!!! ~berurah</p>

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<p>Yes, states can pass laws that limit the discretion of the Supreme Court ruling, unless the Supreme Court ruling is a based on enforcing Constitutional rights. </p>

<p>So if the Supreme Court says that students have the right to wear black armbands to school under the 1st Amendent (Tinker vs. Des Moines) no state can pass a low overriding that.</p>

<p>However, Hazelwood went the other way - it held that the speech in question was not protected under the 1st amendment. State legislatures are always free to expand the rights of the individual, and restrict powers of state agencies.</p>

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<p>calmom~</p>

<p>Thanks, that helped!</p>

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<p>I was going to give pretty much the same answer as CalMom, until I read hers. </p>

<p>The best analogy to this, if you keep up with the news, is like the Supreme Court ruling saying that states can take personal land for a public use, even if that public use results in the land going to a private individual. Now, that angered a lot of people, so some states have passed laws which prohibit the takings of private land, by the government, for private use.</p>

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<p>That’s interesting – I was going to offer up that same example earlier – (the eminent domain case)… but then I thought the example might be more confusing than a direct explanation.</p>

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<p>There are two sources of constitutional rights that can affect a person–the Constitution (Federal) and the Constitution of the State in which that person resides. States cannot curb the federal constitutional rights, but can choose to extend rights under its own State Constitution that may not be protected under the First Amendment or the Federal Constitution. (Pruneyard Shopping Center v. Robins (1980)).</p>

<p>So we in CA have to live with petition drives, voter registrations, charitable groups seeking money, etc. at our malls, Walmarts, Targets, etc.</p>

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<p>

Is there any way to challenge this and if so, how?</p>

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<p>Why would you want to challenge a practice that gave students more rights?</p>

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<p>because those rights have been egregiously abused in our district…</p>

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<p>So is your school newspaper being censored or is it printing offensive stories that you feel should be censored? Or something else?</p>

<p>(Wrote my post before I saw Calmom’s question… )</p>

<p>hmmmm… I can guess… but I won’t :(</p>

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<p>I checked your state’s law protecting student publication rights. The law says,

So basically the school administration can censor material that is libelous, slanderous, obscene or promotes illegal or criminal behavior. </p>

<p>I’d note that individuals can sue for defamation or invasion of privacy – a lawsuit brought by an individual is not governed by first amendment issues, though of course the litigant has the burden of proving their case.</p>

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<p>Can anyone tell me how a student publications act like this can be passed to begin with? Where would that originate (given the Hazelwood decision), and it is reversible?</p>

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<p>B–maybe you should tell us what it is that is bothering you about the school pblication in question. I can’t figure out whether you’re upset because the school is censoring something or upset because the school is NOT censoring something.</p>

<p>The law protecting student publication rights arguably seems to fit within the language of Hazelwood.</p>

<p>Hazelwood>>the Supreme Court ruled that administrators of a school district <em>DO</em> have the right to pull material that is “inconsistent with its basic educational mission”<<</p>

<p>Your state statute>>students have publication rights but student publication rights don’t extend to libelous, slanderous, obscene material or material that will cause a disruption of normal school activity (and thus are not protected by the law and can be pulled by school administration) --this material could be seen as “inconsistent with the school’s basic educational mission”<<</p>

<p>You can argue in future to clarify what “inconsistent” and “basic educational mission” means.</p>

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<p>Every state has a different process for amending its Constitution. Some do it by referendum, etc. etc…If Supreme Court justices are elected in your state, removing them can have the same effect.</p>

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<p>Not an attorney, but the Hazelwood case is worth investigating because it is not as straight forward as you might imagine. I vaguely remember it as I have teaching family in the next district. It is a lower decile, lower middle class, lower class school.</p>

<p>*The newspaper was written and edited by a journalism class, as part of the school’s curriculum. Pursuant to the school’s practice, the teacher in charge of the paper submitted page proofs to the school’s principal, who objected to the pregnancy story because the pregnant students, although not named, might be identified from the text, and because he believed that the article’s references to sexual activity and birth control were inappropriate for some of the younger students. The principal objected to the divorce article because the page proofs he was furnished identified by name (deleted by the teacher from the final version) a student who complained of her father’s conduct, and the principal believed that the student’s parents should have been given an opportunity to respond to the remarks or to consent to their publication. Believing that there was no time to make necessary changes in the articles if the paper was to be issued before the end of the school year, the principal directed that the pages on which they appeared be withheld from publication even though other, unobjectionable articles were included on such pages. The District Court held that no First Amendment violation had occurred. The Court of Appeals reversed. *</p>

<p>The school was challenged by a teacher (basically) on a less than fair mission. They resorted to the courts to get the matter contained.</p>

<p><a href=“a”>i</a> First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. Pp. 266-267.
(b) The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums [261] only if school authorities have by policy or by practice opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The school officials in this case did not deviate from their policy that the newspaper’s production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher’s control as to almost every aspect of publication. The officials did not evince any intent to open the paper’s pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper’s contents in any reasonable manner. Pp. 267-270. </p>

<p>(c) The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, distinguished. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Pp. 270-273. </p>

<p>(d) The school principal acted reasonably in this case in requiring the deletion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper. Pp. 274-276.*</p>

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<p>Berurah, if I understand you correctly (and I’m not at all sure I do) you want the school to exercise more power to restrict the content of a student newspaper than it now does. The Hazlewood decision says that the Constitution doesn’t prohibit such an exercise of power in the school newspaper context, but a state statute does. Yes?</p>

<p>If I have that right, the answer to your question is that it’s a political issue, not a legal one. That is, a state is free to limit its own power to restrict the actions of citizens (including students.) States are not free to expand that power beyond the limits set by the Constitution, but they are free to restrict it further. The Constitution is a limit on state action, not a prescription on how states must act.</p>

<p>If the school is acting within the limits set by the statute I don’t see how there could be any legal issue to argue. So if you don’t like your state statute the answer is to attack it politically, by trying to get your state legislature to change it. Calmom’s cite doesn’t appear to be a state constitution, just a garden variety statute which could be amended by the Legislature up to the limit articulated in Hazlewood, or anywhere in between. Be careful what you wish for, though…</p>

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<p>Re the student newspaper in Hazelwood…</p>

<p>Boy have school newspapers in high school changed from my day! But then maybe society has changed in the 35 years since…some for the better, some for the worse…</p>

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<p>For clarification, I did cite the statute – I believe that Berurah lives in Kansas, so I found the Kansas statute here:</p>

<p>Kansas Student Publications Act
Kan. Stat. Ann. Sections 72.1504-72.1506
<a href=“http://www.splc.org/law_library.asp?id=9[/url]”>http://www.splc.org/law_library.asp?id=9&lt;/a&gt;&lt;/p&gt;

<p>(If I am mistaken about the state, the other states with similar laws include:
Arkansas, California, Colorado, Iowa, and Massachusetts – my guess is that you would find similar wording anywhere, given the intent of the law)</p>

<p>More info about student publication rights, including a discussion of limitations of the Hazelwood case, is here:
<a href=“http://www.splc.org/legalresearch.asp?id=3[/url]”>http://www.splc.org/legalresearch.asp?id=3&lt;/a&gt;&lt;/p&gt;

<p>It is noteworthy that Hazelwood does not apply to all student publications, but only to school-sponsored publications that are not set up as a “public forum for student expression” – which would happen if school authorities gave student editors the authority to make their own content decisions, even if there was no state law giving them that right. In that case, the authorities could only censor the publication if it was shown to cause a “material and substantial disruption” of school activities.</p>

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<p>I thought this was discussed in a previous thread. Is it the layout on pregnant teens in a yearbook issue? (I may be mistaken here…but I recall, despite impending senility, discussion along those lines a few weeks ago.)</p>

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<p>ldmom - thanks for the reference to the other thread – I had missed the high school yearbook discussion entirely, but I’ve found it now. </p>

<p>This is exactly the same issue that the Hazelwood decision dealt with – in that case, school authorities wanted to censor stories on teen pregnancy and on the effects of divorce on teenage children. They were allowed to do so in that case, but only after a finding that the publication was not a “public forum” … and courts have subsequently restricted the Hazelwood decision so that it may not apply to publications produced as part of an EC outside of school hours. (So, for example, if a yearbook is produced by a committee that meets after school, then it may be exempt from Hazelwood-type censorship even if it could be censored if produced by a class which meets during the school day).</p>

<p>Excellent summary of Hazelwood here:
<a href=“http://www.splc.org/legalresearch.asp?id=4[/url]”>http://www.splc.org/legalresearch.asp?id=4&lt;/a&gt;&lt;/p&gt;

<p>Student First Amendment Rights diagram here:
<a href=“http://www.splc.org/legalresearch.asp?id=38[/url]”>http://www.splc.org/legalresearch.asp?id=38&lt;/a&gt;&lt;/p&gt;