Pennsylvania School Press Association

Forty years ago this month, the U.S. Supreme Court granted citizenship status to high school students.  As much as the country, schools and young people have changed in the decades since, students are losing ground in their struggle to exercise their rights as citizens.

Today in Pennsylvania we await the Third Circuit Court of Appeals’ ruling in a case where a student was punished for what he posted on a home computer.  His offense?  Creating on his MySpace site what school officials said was a “demeaning and demoralizing” profile of the high school principal. For that, Justin Layshock was suspended for 10 days, moved to an “alternative” school program and barred from extra-curricular activities.

A district court judge said this punishment was unconstitutional, but the school has appealed.  School officials argue that the reach of “electronic communication” today justifies punishment for the parody profile Justin posted, even though he created it on his grandmother’s computer.  The school believes it has a right to regulate and punish off-campus speech, even if it does not disrupt the school.

Was this high school senior in the Hermitage School District near Pittsburgh denied his free-speech rights?  For an answer, the circuit court will look to the Supreme Court message Mary Beth Tinker received in February of 1969.
Mary Beth was a 13-year-old Iowa junior-high student when she, her older brother John and their friend Christopher wore black armbands to school in silent, symbolic protest of the war in Vietnam.  Learning in advance what the students planned, and fearful others would be offended, the school board banned armbands.  When the students refused to honor the new restriction, they were suspended from school.  Mary Beth and John’s parents sued.

Few were surprised when a federal district court and then the 8th Circuit Court of Appeals said that school officials could prohibit or punish such public expression of students’ personal beliefs in school.   The surprise came on February 24, when the U.S. Supreme Court reversed the lower courts.  And did so in startling language.

“Any departure from absolute regimentation may cause trouble,” Justice Abe Fortas wrote.  “Any variation from the majority’s opinion may inspire fear…or may start an argument or cause a disturbance.  But our Constitution says we must take this risk….Our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans.”

Tinker v. Des Moines Ind. Sch. Dist. was a harsh message to school officials who believed they had a broad mandate to control students.  Tinker and other courts since have reminded over-zealous school officials that they are to instead educate citizens.
The case was not a blank check for student expression, but the U.S. Supreme Court has never overturned Tinker. Or its message that a public school administrator has no more authority than a town’s mayor or a state’s governor to stop or punish ideas simply because they offend those government leaders.

School officials face an additional challenge in 2009.  Today’s versions of Mary Beth, John and Christopher seldom wear armbands, or even protest in school.  Instead, tech-laden and fortified with home computers, they are poised and primed to post their personal views online.  This tests the narrow regulatory reach of Tinker and subsequent student-speech cases.

Pennsylvania’s Layshock v. Hermitage School District case raises questions of national interest about increasingly aggressive “home invasion” assaults on student speech. Has the Internet extended school boundaries into students’ homes?  What off-campus source, venue or expression is disruptive enough to justify punishment?

The Supreme Court in Tinker said that school officials can suppress or punish an individual student’s substantially disruptive expression.  The Court in 2007 said this applies to speech in school or at a school function off-campus.  But Tinker has never been applied to a student’s unflattering profile of his school principal, expressed online from home.
As Justice Fortas wrote in Tinker, “to justify prohibition of a particular expression of opinion, [school officials] must be able to show that [their] action was caused by something more than a mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Mary Beth Tinker still cherishes what the Supreme Court said 40 years ago.  She told the Student Press Law Center recently that the case defined her life.  A nurse who works primarily with children and teenagers, she also travels around the country, encouraging young citizens to care out loud.

“I thought if I could encourage kids to speak up for themselves and make things better…, I should do that,” Mary Beth told the SPLC.  “I should tell them my story about the armband case and how speaking up for what you believe in can make a big difference.”
Justice Fortas, who wrote the Tinker opinion, would be pleased.

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Tom Eveslage, a journalism professor who teaches law and ethics at Temple University, served for 17 years on the Student Press Law Center Board of Directors and the Pennsylvania School Press Association Executive Board. Contact him at eveslage@temple.edu.

I was on an airplane, reading and cursing to myself. At least I thought I was until I saw other passengers staring at me. But I couldn’t help it. That January day in 1988 I was reading for the first time what we know as Hazelwood v. Kuhlmeier, a U.S. Supreme Court ruling that had just told the world that high school journalists aren’t trustworthy enough to make responsible decisions.

In heavy-handed, condescending language, a Court majority offered what insecure administrators would soon believe was a license to censor student expression. While it heartened some administrators, Hazelwood depressed many journalism students and advisers. (See this guide for a detailed analysis of the Hazelwood ruling.)

Some members of the student press after Hazelwood were intimidated into silence. But the case also challenged publication staffs. Many wanted their administrators to know their student journalists deserved trust and respect, that there was no need for threats, obstacles or fear because they were knowledgeable, caring and conscientious students.

This assessment is as true now as when I first made it 20 years ago. My lead on a March 1988 cover story in PSPA’s Keystoner newsletter said this about Hazelwood: “The decision, while not a death blow to student rights, should put every student and teacher on guard.” Students and advisers would have to work harder for respect and press freedom, I wrote, but reminded them that the Court was not condoning, or encouraging, administrative censorship.

During the past two decades, I have written or publicly spoken about the Hazelwood ruling hundreds of times. My message has been consistent: Bad things happen to the student press. Good things, too. Anticipate and avoid the bad. Capitalize on the opportunities.

What obstacles do student journalists still face?

• Continuing Censorship. The Student Press Law Center reported that the first five years after Hazelwood, the annual number of calls for assistance more than tripled. The SPLC said last fall that there has been “no sign of decline” in censorship. This threat will continue to plague student journalists.
• Defensive Overreaction. Since the April 1999 Columbine shootings and other incidents of violence in school, administrators have felt the need to suppress speech that may disrupt the school or do harm to its students and faculty. Parents defer to administrators who cite “safety and security” rationale. This rhetoric also silences student journalists.
• Expanding Boundaries. School officials at the time of Hazelwood often believed that censoring “negative” stories in student publications insulated the administration from outside scrutiny and criticism. If anything, cyberspace has escalated that fear. Administrators now believe the Internet has both broadened the definition of “student publications” and expanded school boundaries beyond the classroom buildings.
• Misunderstood Hazelwood. Just as there are new journalism teachers and advisers every year, there also are school officials who know only the administrative-power tone of Hazelwood and incorrectly believe that it overrules the legally valid student-rights message of the 1969 Tinker v. Des Moines case. Too many public-school administrators still wrongly believe that Hazelwood gives them the power and autonomy that the publisher of a private newspaper has over the staff of that publication.

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But there also are signs that despite the Hazelwood language that initially demoralized students and delighted school officials, high school journalists today are equipped to defend thoughtful, useful and substantive student media content.

Here are some hopeful indicators that have marginalized Hazelwood’s harmful impact.

• Legislative support. When Hazelwood was decided in 1988, California had the only state law protecting students from administrative censorship. In 2007, Oregon became the seventh state to give high school students more free-speech protection than Hazelwood provides. Students in two more states – Pennsylvania and Washington – have free-speech protection through administrative codes limiting school control.
• Court support. Federal courts since 1988 have kept Hazelwood in check. The Hazelwood Court didn’t intend to push student expression and journalism education off school grounds when it gave broader authority to administrators regulating school-sponsored publications produced or distributed within the school. School officials are on shaky legal ground when they force suppressed speech off-campus and then, as they have with increasing frequency, they punish students who post online “negative” statements from their home computers and students who criticize school policies or practices in an “underground” newspaper published outside of school. Lower courts have said that Hazelwood doesn’t give public school officials this authority.
• Responsible journalism. Professional and student journalists alike realize that responsible, ethical journalism resonates with their audiences and earns them respect and public support. Today there are important legal and ethical reasons to practice good journalism. In an important Michigan case (Dean v. Utica), a federal judge said that because student journalists had done such a thorough, responsible job of investigative reporting, school officials had no right censoring a student newspaper story about a lawsuit neighborhood residents filed against the district. Solid journalism undercut the administration’s censorship power.
• Accessible Assistance. Teachers and students aren’t as isolated as they were 20 years ago. More and better resources exist to protect student expression. Here are a few that have online websites: The Student Press Law Center, J-Ideas at Ball State University, the First Amendment Center at Vanderbilt University, the Journalism Education Association, the Columbia and National Scholastic Press Associations, plus professional groups such as the Freedom Forum, the American Society of Newspaper Editors and the Society of Professional Journalists. All have tools and tips for protecting student media.
• Blissful Idealism. Students and advisers shouldn’t focus-and aren’t-on what they don’t know and can’t do. Most advisers weren’t teaching and students weren’t alive when Hazelwood gave administrators more control of student expression. Student journalists were being intimidated before Hazelwood, just as they were before Tinker 40 years ago. Through it all, good high school journalism has persevered as student journalists have matured.

Some journalism programs are in trouble today, but likely not because of a 20-year-old Supreme Court ruling. Fortunately, student journalism is in the hands of caring teachers and knowledgeable, conscientious students, not judges or school administrators. Recent research supports this conclusion.

Jack Dvorak, a journalism professor at Indiana University, is the co-author of a 1994 book called Journalism Kids Do Better. His extensive survey then of almost 20,000 high school students-including some 4,800 student journalists-revealed that the Journalism Kids did better in 10 of 12 major academic areas, performed better when they moved to college writing courses, and were more involved in school and community activities.

Dr. Dvorak recently completed a comparable study, this time surveying more than 31,000 students. The results were the same. In “High School Journalism Matters,” Dvorak reports that high school journalists have higher grade-point averages, do better on the ACT college entrance exam and reveal better writing and grammar skills in college than do students who without high school journalism work.

This heartening research and a closer look at Hazelwood and its aftermath should offer hope and confidence to those faced with the challenges of scholastic journalism.

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Earlier this year, I visited with advisers and journalism students attending a workshop at Bloomsburg University.  A common theme when I talk “press freedom” with student journalists these days is the need for staff strategies.  No single approach will work in all schools, with all administrators, but the ingredients for success are the same—confidence in the value of good journalism, professional and ethical performance as student journalists, and communication that helps the audience (including administrators) understand why and how you do what you do as journalist.

After one workshop session, an adviser with five years of experience approached me.  She said she valued my suggestions, adding that she’s learned a lot by attending the Pennsylvania and Columbia scholastic press conferences, acquiring material from the Journalism Education Association, and participating in an American Society of Newspaper Editors’ summer institute for advisers.

Then she sighed.  “But we can’t do many of those things,” she said.  “My principal won’t let us.”  Later that day, I heard as much from three of her students during a discussion of their newspaper.  Two juniors and a sophomore who are on the staff said they don’t even want to talk to the principal.  She just lectures, they said.  She never listens.

I was more angry than saddened after those conversations.  After four decades of work with student journalists, I’ve come to expect incidents of self-censorship.  I know that many advisers struggle to learn and share what they themselves were never formally taught.  And I know how easy it is for advisers and J students—isolated, exposed and vulnerable—to retreat in the face of intimidation.  They value their school and community, their colleagues and friends.  But advisers are teachers, too, working with students in school to learn.

What is the high school principal there to do?  Care about the school and community?  Of course!  Protect students and staff from harm?  Certainly!   But school officials are educators, too.  They teach through policy and practice.  And the principal in the school described above is doing a terrible disservice to her school’s students and teachers.  What her terror-tactics are “teaching” is a lesson about power that will scar and embitter young citizens, who should be learning that their ideas matter.

I talked that day in Bloomsburg to journalism students who want to Care Out Loud about their school, and write what’s important and interesting to their readers.  The humiliating treatment they receive in return is making them cynical, disenchanted and discouraged.  Two actually laughed when I suggested they invite the principal to a discussion of stories they would like to report.

High school students facing such obstacles in other parts of the country have in increasing numbers gone outside of the school to express themselves.  They have their own Web sites, produce their own online publications or blogs, even produce and distribute alternative school newspapers.  And although school officials are trying harder to stop anything critical or ‘negative’ from these independent voices, administrators find that there is little they can do legally to stop or punish students who use their own means to communicate outside of school, without teacher supervision.

I don’t advocate that as a first, or even useful, alternative to existing school publications.  I didn’t suggest that the frustrated students or adviser take their case public outside of the school.  This should not be the first, and may not be the most productive, alternative.

For example, newspaper staffs in some schools have effectively made the principal or an assistant principal part of the process—not as an editor, but as a consultant.  When editors meet regularly with an administrator for a discussion of the previous issue, that person can be a sounding board for story ideas and a resource to help the students report stories of their choosing.  Such discussions remind all parties that theirs is a student AND school publication.

Where such dialogue cannot take place, administrators should not be surprised that students resist.  They should cry out when the only publication allowed in school forces students to accept the imposed message that their views are not important, and that the only ideas they can print are those acceptable to school officials.   That clearly is not lawful regulation of a student publication, as courts for years have said to high school administrators.

Perhaps it is time for scholastic press associations, including PSPA, to draft a strong, affirmative, pro-education letter to all Pennsylvania high school principals.  Remind them of their obligation as educators. Caution them that scaring students into silence is anything but beneficial to young people who are supposed to be learning how to be productive citizens.  And tell these administrators that there are other sound avenues that are mutually beneficial.

School Boards consist of elected public officials who occasionally must court public opinion and behave as the politicians they are.  But the public sees the School Board as a watchdog, monitoring the education system and its employees on behalf of the community, parents and children.

School administrators, also public officials but without the election burden, should be educators first, not the Thought Police, instead responsible for creating an atmosphere conducive to teaching and learning.