I wrote a paper called “Comparing School Press Freedoms in California and New Jersey” for a Media Law class at the University of Missouri in the Summer of 2013. Advisers in California and beyond ask me about the Leonard Law. I hope that this truncated version of my paper answers some of those questions. Reach out to me if you have further questions — or if you want help researching your state’s student press law.
When I was first hired as a yearbook teacher in San Diego in 1998, I didn’t grasp that I was teaching journalism. Sure there was reporting involved, even photojournalism, but I didn’t understand the weight of my responsibility. Over these 20 years, I’ve learned a lot about my field – about software and f-stops and cover materials. And I have come to fully grasp the gravity of educating young journalists.
My number one goal has been to teach my students leadership: respectful communication, group dynamics, problem solving and ethical decision making. However, it took years before it occurred to me that student press law should be a part of my leadership and journalism curricula.
Because my students were conscientious and diligent, and because I emphasized leadership, we operated as a public forum – but almost on accident. I always believed that our private school publications were protected by our benevolent administration – but it turns out we were actually protected by the Leonard Law.
This legal research paper is my attempt to look at U.S. Supreme Court decisions, California laws, and the education code. First and foremost, I think it’s important that we understand how the Court has ruled on student expression.
What The U.S. Supreme Court Says About Student Expression
In the 1969 U.S. Supreme Court decision in the case of Tinker v. Des Moines Independent Community School District, the Court supported student freedom of expression. The petitioners were three public school students who were suspended from school for wearing black armbands in protest of the Vietnam War (the students); the respondents were the School Board and other school officials (the Board).
Petitioners John F. Tinker, 15, Christopher Eckhardt, 16, and Mary Beth Tinker, 13, attended three different schools in Des Moines, Iowa, in 1965. In December, the Eckhardt family hosted a meeting of adults and students to strategize how to publicize their objections to the hostilities in Vietnam. They wanted to show their support for an end to actions by wearing black armbands during the holiday season and by fasting on two days. The students and their parents had participated previously in similar activities, and they decided to participate in this protest as well. The principals of the three schools became aware of the plan, and before the start date of the protest, adopted a policy that any student wearing an armband to school would be asked to remove it or get suspended from school. The students were aware of the new regulation when Mary Beth and Christopher wore their armbands to school on the protest start date, Dec. 16. John wore his the next day. All three were suspended until they would return without their armbands. The students did not return until after the completion date of the protest – New Year’s Day. The students filed a complaint in the US District Court through their fathers for an injunction restraining the Board from disciplining the students.
The Court, in a decision written by Justice Abe Fortas, said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Fortas cited 50 years of Court support for First Amendment rights for teachers and students “in light of the special characteristics of the school environment” including West Virginia v. Barnette where the Court held that public school students may not be compelled to salute the flag.
Fortas recognized also that the Court repeatedly affirmed the authority of school officials to prescribe and control conduct in schools. Fortas saw the Tinker students’ armbands as akin to “pure speech”. The District Court concluded that the Board’s action was reasonable because it was based on fear of a disruption in the school day. Fortas said that our Constitution says we must take this risk – fear or apprehensions of disturbance is not enough to overcome the right of freedom of expression.
Almost Two Decades Later, The Other Shoe Dropped.
In the 1988 U.S. Supreme Court decision in the case of Hazelwood School District v. Kuhlmeier, the Court limited student press freedoms. The petitioners were Hazelwood School District, school officials, the principal and the temporary journalism teacher (the school); respondents were three former students who were staff members of the school newspaper (the students).
The students filed suit against the school alleging that their First Amendment rights were violated when the principal deleted two pages of the last issue of the year of the student newspaper. The school’s practice was for the journalism teacher (in this case, a temporary teacher covering after the permanent teacher left midyear) to submit page proofs to the principal for approval. The principal found two articles objectionable – one involving student pregnancy that he thought violated student privacy and the second about parent divorce that he thought should have allowed for parent comment. He ordered the two pages deleted, even though they contained other, not-objectionable stories, because he believed there was not time to edit the stories for publication before the end of the school year.
The Court found that the school did not violate the students’ First Amendment rights by exercising editorial control over the style and content of their speech. The Court found that the student newspaper was not a public forum because the teacher (the school) exercised significant control over story assignments, editing, the use of quotes, publication dates, etc. Therefore, the school was merely following policy when two pages were pulled from the May issue of the paper.
Hazelwood Changed Everything.
In the outcry against the limitation of student free expression, four states passed legislation protecting student press rights in the decade following Hazelwood, and Massachusetts amended its 1974 freedom of expression law. California already had a freedom of expression law called Student Exercise of Freedom of Speech and Press, 1983, which covered high school journalists. (Paxton)
Here it is 30 years after Hazelwood, and many still has nothing on the books to support student press freedom. In fact, the Supreme Court of New Jersey held that students whose chants at a basketball game were “loud, offensive, disruptive, and disturbing to neighboring spectators” forfeited their First Amendment rights (New Jersey State Bar Foundation).
How California Approaches Student Free Expression
In Pruneyard v. Robins, the United States Supreme Court affirmed the judgment of the California Supreme Court that allowed high school students to exercise free speech and petition rights on the property of a privately owned shopping center (447 U.S. 74). Appellees were high school students seeking public support for their opposition to a United Nations resolution (students); appellant was the owner of a large shopping center (the owner).
High school students set up a table in the Pruneyard shopping center in Campbell, California, to distribute pamphlets and ask shoppers to sign a petition asking the President and members of Congress to oppose a United Nations resolution the students were against. Shortly after they began their work, a shopping center security guard informed them that they were in violation of a center policy prohibiting any publicly expressive activity. The students brought an action in the Superior Court of Santa Clara County seeking an injunction against the owner of the shopping center. The Superior Court held that the students were not entitled to exercise their asserted rights on the shopping center’s private property, that there were plenty of other channels of communication they could use. The students appealed and the Court of Appeal of California affirmed, but the Supreme Court of California reversed. The Supreme Court of California held that the California constitution entitled the students to conduct their expression on shopping center property, and that the owner’s rights were not infringed by his making his property available for such expression. The shopping center owner appealed. The United States Supreme Court, in an opinion by Justice William Rehnquist, affirmed the California Supreme Court’s decision.
In his opinion, Rehnquist said that because Pruneyard was a large center covering several city blocks, and because it is open to the public, and because the students were orderly and limited their activity to common areas of the center, the shopping center owner could adopt regulations regarding time, place and manner, but that his rights had not been violated. The students’ had.
Pruneyard stands to support free expression in California not just for students like the appellees, but for all citizens. It wasn’t really a student speech case; however, it is indicative of how California views speech law in general. Liberally.
The California Student Free Expression Law provides students attending California public high schools, including charter schools, with added protection against school censorship. The law also protects teachers and advisers from retaliation by the school for students’ lawful exercise of their free speech rights. (Cal. Educ. Code 48907)
Additionally, California state law has unique support of student press freedoms for private schools. The Leonard Law changed the California state education code in 1992 to allow for students enrolled in private institutions to have the same freedom of expression on campus as they enjoy off-campus. (Calif. Educ. Code Section 48950)
The law is only as good as the public’s awareness of it and exercise of it, though. Not all high school journalism advisers are aware of their rights and responsibilities. In a study of high school journalism teachers, Filak, Reinardy & Maksl asked participants whether they thought the state in which they taught had a law supporting student press freedoms.
“In almost one-third of the cases, individuals had incorrectly stated whether a state law protected them. For example, California has a strong press law that is among the best in the nation in protecting high school journalists. That said, eleven of our forty-four respondents from California stated that no such law existed.” (Filak, Reinardy & Maksl)
The more I learned, the more I saw that not knowing my rights as an adviser limited me and my students. Not knowing my responsibilities as an adviser put us all at risk. Again, I point to our nearly accidental public forum status – I operated my student-run publication as a public forum merely because it seemed the best way to work. Now I see that it is the right thing to do to ensure the full measure of protections of the First Amendment for my students. I see that, backed up by California education code and the Leonard Law, we have more than just the grossly limited “freedoms” afforded by Hazelwood.
The Public Forum And Free Student Press In California
California’s Student Exercise of Freedom of Speech and Press Law has been on the books since 1983. State laws and education codes supporting student free press are essential in the face of Hazelwood’s deep cuts to student and adviser freedom.
Even with state laws and education codes, it’s up to student journalists and advisers to take steps to protect themselves. The best way to do that is by operating as a public forum.
In an article for the Student Press Law Center Report, staff writer Emily Walker wrote, “The Court found the student paper at Hazelwood was not a ‘forum for public expression,’ but it left open the possibility that a student publication could be such a forum, and if it was, students would have strong First Amendment protection.” (Walker)
It is impressed upon student journalists, as well as their teachers and advisers, to operate their publication as a public forum. This is what the decisions in Desilets and Hazelwood cases have in common. According to Walker, “In high school publications, public forum refers to who has ultimate control over what runs in the paper, said Mark Goodman, SPLC executive director. ‘What it really means is who has authority to make content decisions,’ he said. ‘Is it students or school officials?’” (Walker) Operating as a public forum limits the input of the teachers and administrators – the publication becomes the work of the students exclusively. For some educators this might be terrifying. But for the brave majority of the advisers I know and have the privilege to work with, it is all we know. And as Walker points out, “Since 1988, becoming a public forum has been crucial for school-sponsored student publications looking for strong First Amendment protection.” (Walker)
In both policy (written, official publication policy) and practice (the day-to-day operations of the yearbook), my students and I needed to ensure that they were the ultimate decision makers. This is why, I think, I was drawn to including leadership education in my journalism curriculum. The tools I teach – respectful communication, group dynamics, problem solving and ethical decision making – were helping my students better run their own publication. We were on the right track all along, but now I know why I was pushing us there.
The burden is on us as advisers and on our student journalists to operate each of our publications as a public forum. And to do so with our eyes wide open– with written policies and consistent practice.
393 U.S. 503 (1969) Tinker v. Des Moines School District. Retrieved from http://supreme.justia.com/cases/federal/us/393/503/case.html.
447 U.S. 74; 100 S. Ct. 2035; 64 L. Ed. 2d 741; 1980 U.S. LEXIS 129; 6 Media L. Rep. 1311. Retrieved from www.lexisnexis.com/hottopics/lnacademic.
Calif. Educ. Code Sec. 48907. California Student Free Expression Law.
Calif. Educ. Code Section 48950. California Leonard Law.
Desilets v. Clearview Regional Board of Education. A-133-93. (1994). Retreived from http://law.justia.com/cases/new-jersey/supreme-court/1994/a-133-93-opn.html.
Filak, V. F., Reinardy, S., & Maksl, A. (2009). Expanding and Validating Applications of the Willingness to Self-Censor Scale: Self-Censorship and Media Advisers’ Comfort Level with Controversial Topics. Journalism & Mass Communication Quarterly, 86(2), 368-382.
Hazelwood School District v. Kuhlmeier. 484 U.S. 260 (1988) January 13, 1988.
Knight, R. P. (1988). High School Journalism in the Post-Hazelwood Era. Journalism Educator, 43(2), 42-47.
Kopenhaver, L., & Click, J. (2001). High School Newspapers Still Censored Thirty Years After Tinker. Journalism & Mass Communication Quarterly, 78(2), 321-339.
New Jersey State Bar Foundation and American Civil Liberties Union of New Jersey. Students’ Rights Handbook. Newark, NJ: New Jersey State Bar Foundation and American Civil Liberties Union of New Jersey, 2007. New Jersey State Bar Foundation. New Jersey State Bar Foundation, 1 Nov. 2007. Web. 11 July 2013. <http://www.njsbf.org/images/content/1/1/11083/Students%20Rights.pdf>.
Paxton, M., & Dickson, T. (2000). State Free Expression Laws and Scholastic Press Censorship. Journalism And Mass Communication Educator, 55(2), 50-59.
Student Press Law Center. State Legislation. New Jersey. Retrieved 11 July 2013. http://www.splc.org/knowyourrights/statelegislation.asp.
Walker, Emily. “Going Public. “Public Forum” Publications Revel in Pumped-up Press Power.” SPLC Report. Student Press Law Center, 2006. Web. 14 July 2013.