Blog 10

Monday

            After twelve hours, five counties, two Native American reservations, and one double hamburger, Monday's meetings (and informal tour of previously-unseen parts of Arizona) revealed the scope of our state and the unexpected adventures of an attorney's job.

            Traveling up the windy roads carved from the towering red-ocher walls of the scenic Salt River Canyon and cruising past plains of livestock on US Highway 60 for 5 hours, my father and I eventually reached the quaint town of St. Johns in Apache County. This tiny town--missing a bank, Walmart, or even a McDonalds--nestled in the green, alpine hills of northern Arizona posed a stark, yet refreshing contrast from our origin in the suburban setting of Scottsdale in the dry Sonoran Desert.

            At the Apache County Sheriff's Office, we shook hands with the deputy sheriff involved in a motor vehicle accident in his patrol car (FYI: the sheriff works for the County, the police work for the City). My father is the defense attorney representing Apache County in this lawsuit. The driver of the other vehicle alleges that the deputy sheriff made an unsafe U-turn in front of her, causing her to hit the rear of his patrol vehicle.  

            In order to get a better understanding of how the accident occurred, we followed the deputy to the accident scene. He had never seen the accident report prepared by the Arizona Department of Public Safety, who investigated the accident, and was shocked by its inaccuracies. Even the description of the property damage to the deputy sheriff's car was incorrect. Accident reports consist of a general information page about the accident, a narrative, a crash diagram, and a vehicle damage report.

            As we watched, the officer reconstructed the accident, driving past us, turning on his lights, and then u-turning. Returning to the sheriff's office, the deputy provided us with his personal memo written at the time of the accident, which was consistent with his reconstruction of the accident.

            Next, my father held a roundtable discussion back at the sheriff's office on how to make sense of the accident. Accidents always come down to split seconds. Relying on his knowledge from other cases of reasonable perception and reaction times, my father believed that if the deputy had executed a three-point turn, then more time would have been required. If the plaintiff was traveling at 60 mph in the 65 mph zone, she had about 1.5 seconds to produce a reaction.

            Since the deputy was about to pursue a vehicle traveling over 80 miles an hour in the opposite direction, the plaintiff should have observed that the deputy was preparing to make a U-turn in front of her. If the plaintiff was following at a safe distance, then it would have taken the deputy approximately four seconds for his vehicle to have been in the position where it would have sustained the physical damage that it did. Consequently, the plaintiff should have seen potential danger. While not in the actual report, the deputy's memo stated that the DPS officer informed him that the plaintiff admitted that she had seen the deputy turn on his emergency lights. Therefore, the plaintiff should have known that something was happening along this stretch of rural highway, but she apparently did nothing to react to the warning.

            While many facts need to be discovered and evaluated, what we learned at the scene with the deputy is far more favorable than the accident report, which is littered with mistakes--listing the deputy's patrol car as being owned Apache Wood Product as an example.

            Next, we drove for approximately one hour to the County seat of Navajo County in Holbrook for another hearing on a minor's settlement. This minor settlement featured a slight difference from the norm; the settlement would not be placed in a restrict account. This time, the judge raised the issue of why not--unlike our past several hearings where we had been anticipating the question which was never raised by the judges. To answer, my father replied that it was unnecessary under the applicable statutes, and the judge agreed and approved the settlement.

            In a role reversal, the defendants did teach my defense attorney father and I a new defense trick of two. While preparing the minor and her mother for her testimony, at which her father was present, we learned that the mother is an owner of a martial arts studio, and the father was a cage fighter who was raised in New York, and then lived in South Phoenix. They instructed us two simple, but devastating, defense moves. The mother demonstrated how if you are confronted by a larger assailant, then you should stomp on his foot, whack the back of his knee, which brings the assailant to his knees while you flee. The father, on the other hand, impressed us with his technique of blocking the arms of an opponent and cupping your hands to whack his ears, dropping him to his knees in a perfect position for you to knee him in the forehead. That defense in a cage fight seems a little more exciting than a defense in a courtroom.

            Revealing that the legal community in Arizona is fairly small compared to the size of our state, my father ran across an attorney he knew, even in this remote location. Stopping by a mom-and-pop old diner in Holbrook for lunch, the friendly service reinforced the old-fashioned hospitality of this remote Eastern part of our state.

            Driving four hours home, puffy white clouds punctuating alpine forest gradually and gracefully gave way to saguaros standing sentinel against desert sandstone vistas. This topographic diversity whizzed by our window as we discussed the deputy's accident in detail and agreed that an accident reconstructionist needed to be retained in order to support our position.

            As the sunset cast shadows across the hills, I recollected how the sun was also setting on my last week of my SRP. Just like our full day today, shadowing my father exposed me to the reality of practicing law and left me eager to experience more.

Research

            My survey of public high school student publication faculty advisers in Arizona conducted electronically through an anonymous online survey using SurveyMonkey indicates that student journalists and faculty advisers practice self-censorship.

            Of the 83 high school faculty advisers who were emailed the survey on March 3, 2015, 26 advisers responded to 11 survey questions inquiring about the existence and exercise of prior review and encounters with censorship of student publications at their respective high schools. A substantial amount of advisers (39.13 percent) revealed that they or their student journalists had been told by school officials not to publish or air content to which they objected. Although thirty percent of advisers work at schools with a policy expressly designating its student publications as public forums, the majority, 44 percent of advisers, stated that a school official routinely reviews content before publication or airing. In this regard, about 37 percent of advisers reported that someone other than themselves or the student editors is the final authority for approving the content of student publications. Of these, 29.17 percent named the school principal as the final arbitrator of content; 8.33 percent listed the school district superintendent.

            More alarmingly, 13.64 percent of advisers alleged that school officials have threatened their position or job based upon the content of a student publication.

            Not surprisingly, in the speech-restrictive climate created by prior review, advisors shared that both they and their students had experienced self-censorship. 65.22 percent decided against publishing or airing content on the grounds that they believed school officials would censor it.

            Quantifying the rate of incidences of school publication censorship is difficult because most conflicts go unreported and are not adjudicated. The busy lives of students crammed with extra curriculars and SAT preparation, combines with looming graduation of senior editors to dissuade most students from pursuing a multi-year legal battle against censorship. Nevertheless, the survey presents anecdotal evidence that censorship occurs frequently in Arizona. The survey targeted respondents in public high schools in every Arizona county with established student publications. All email addresses of faculty advisers were personally confirmed over the phone with each school's staff.

            Eighty-four percent of the respondents hailed from schools with over 1,000 students: 44 percent contained between 1,000 and 2,000 students, and 40 percent had more than 2,000 students. At the other end of the size spectrum, 8 percent of respondents worked at schools with less than 500 students, and an equal amount, 8 percent, worked at schools with 500 to 1,000 students. Consequently, the results represent a random sampling of student publication faculty advisers statewide, rendering the survey both valid and reliable.

            Most student faculty media advisers wear many hats: supervising both online and print newspapers, yearbooks, television broadcast programs, and literally magazines. The majority of respondents advised newspapers and yearbooks.

            Considering that 70 percent of faculty advisers lead student publications that are not designated public forums, the prevalence of self-censorship in Arizona is not surprising. While only 30.43 percent of respondents stated that their school has a policy that requires prior review of content before distributing student publications, 42.86 percent report that school policy allows prior restraint to prevent distribution. This ambivalence suggests that school officials do not require faculty advisers to turn over the student publications to receive permission to publish, but, in practice, the school retains a veto power to censor content and prevent distribution.

            Likewise, while 44 percent of faculty advisers follow a protocol which routinely submits publications for review to a school official, only 29 percent believe that the practice is mandatory. This confusion on the part of faculty advisers mirrors the split in lower courts' interpretation of Hazelwood's ambiguous standard. Even though the faculty's perceptions are contrary to the blanket assertion of a school's prior review authority contained in the Arizona School Board Association Manuals distributed by the Arizona School Board Association, composed of more than 240 governing boards, which represent almost one million Arizona students. If the faculty do not know what their rights are regarding prior review of student speech, then how can student journalists?

            Moreover, my survey, while admittedly on a much smaller scale with only 26 respondents, consistently mirrors the findings of a national 2013 Journalist Educational Association Survey.  However, the student press in Arizona practices almost double the amount of self-censorship than that reported in the national survey.

High School Administrative Policy in Arizona

The majority of school districts in Arizona have adopted School Board Association manuals with administrative regulations concerning student publications, which are similarly worded to the Hazelwood-like provision for prior review. For example, the Cave Creek School District's regulation typifies the use of prior review by a principal in most high schools:

"Students shall be required to submit publications to the principal for approval prior to distribution."

            However, some individual school districts elaborate on this general paradigm. Sunnyside Unified School District further explicates the principal's exercise of prior review by adding, "The principal has a right to object to the style or content of any material as long as the objection is reasonably related to a legitimate pedagogical concern," quoting verbatim the Hazelwood standard of review.  Nevertheless, it does also include an appeal process. Glendale Unified School District expounds upon its policy of prior review for five pages, detailing the qualities of a school newspaper--financed by the district, not a private enterprise, the newspaper's "major function...is to serve the school," stating that the Governing Board is held directly responsible for the newspaper. It details how "high school students need the guidance and direction of their adviser," to be "exceedingly careful concerning the accuracy and truth of the material, as well as the objectivity," especially political neutrality. Glendale further articulates the impermissibility of publishing content which, echoing the Tinker standard, substantially and materially interferences with normal classroom activity or school function, or which is obscene or libelous. Furthermore, Glendale's regulation provides a three-level procedure for review of an article in which review has been requested: the principal, the Superintendent, and the Governing Board. 

            Of course, these administrative regulations merely provide a constitutional floor for the First Amendment rights of student journalists. Several high school newspapers, notably those published online, have increased their constitutional protection by expressly declaring themselves to be public forums.

            Within the Glendale Unified School District just mentioned above, Thunderbird High School's The Challenge is a self-designated public forum. You may recall The Challenge from my previous post on the victory of student editor Hillyard against school censorship on an addition of the newspaper in 2010. IF you recall further that the school still practices prior review, highlighting how a written school policy is not a strong enough shield against school censorship in the post-Hazelwood era; only a state statute provides constitutional security.

            Likewise, the Shield and Crown, an online student publication of Kofa High School in Yuma, maintains that it is "established as an open forum" that "will not be restrained by school officials prior to publication or distribution," claiming that the student editorial board solely determines content and disclaiming that the "material may not necessarily reflect the opinions or policies of Kofa School officials." Since this newspaper is published weekly by Journalism students, one can infer that the students and their teacher are more knowledgeable about censorship and have taken this step to protect their editorial powers. In this regard, each online addition further elaborates that it will publish only speech that is legally protected and will not cause a Tinker-like material disruption of school activities. The student editors expressly assume "complete legal responsibility for the content."

            Likewise, student Journalists at Desert Mountain have declared that their online newspaper, the "Wolf's Print," to be "an open forum of public expression," "committed to..serving as a public forum."

            On the other hand, Valley Vista High School's Storm Chaser labels itself "a limited open forum," with "all online content..determined by student editors." However, the circuit courts have been split regarding whether limited open forums receive the heightened security of a public forum (Dean v. Utica, 345 F. Supp. 2d 799 (E.D. Mich. 2004)) or the lesser protection of a non-public forum (Ochshorn v. Ithaca City Sch. Dist., 132 S. Ct. 422  (2011)). Consequently, Valley Vista High School's online newspaper remains extremely vulnerable to Hazelwood's restrictions on speech, despite its assertion of a limited public forum.

            Several other online student publications appear even more lost in the constitutional quagmire created by Hazelwood: Corona Del Sol High School's newspaper asserts that "opinions represented within are solely those of the individual writers," rather than the administration or district, and University High School proclaims that The Perspective is a "student-run" newspaper. These vague attempts to assert student editorial control would not pass mustard under Hazelwood; the school's imprimatur--name and funding--would trump the newspaper's policy.

Recent examples of student publication censorship in Arizona

            While the odds seem stacked against student journalists since Hazelwood, schools do not have unfettered discretion to censor content. While courts have granted schools greater latitude in their judgment of what constitutes a "legitimate pedagogical concern," the school's authority is not unlimited. Hazelwood is not carte blanche deference to principles personal objections.

            Recent censorship controversies in Arizona highlight how high school students do not enjoy a uniform standard of First Amendment protection across the state. Incidents in high schools in Tucson and Globe signal the heavy-handed limitations on student expression; a nationally-covered story about Mesa High School's lack of censorship of a yearbook illustrates the constitutional courage to publish student-produced content.  

            In 2014, the principal of Sabino High School in Tucson censored 13 quotes in over 800 yearbooks prior to distribution by crudely covering the text with black tape. Quotes included "Every Mexican needs a White best friend!" and "Come getcha' some--Turtle Man." Since Arizona lacks a student press freedom statute, Hazelwood governs the yearbook, permitting officials to censor content for a "legitimate pedagogical concern," a standard that requires more than the principal's personal objection--there must be poor grammar, obscenity, disruption, etc. While the school never adopted a public forum policy to protect student expression, the principal neglected to review the yearbook prior to printing. Moreover, some members of the Tucson Unified School Board regretted the principal's censorship, admitting that the school acted inappropriately. The students were not punished; however, the school disciplined the yearbook teacher for not presenting a copy to the administration for prior review or restraint. This swirling eddy of constitutional confusion highlights how Hazelwood does not extend clear guidance to school officials, students, or courts ("Censored Yearbook Quotes Raised Questions of Prior Review at Tucson High School." - Student Press Law Center.Web. 1 Nov. 2014).

            Globe's high school student newspaper The Papoose unsuccessfully waged two censorship battles in 2008. After its printing but before its distribution, the principal seized all 700 copies of the paper because of two articles which he deemed inappropriate. He first objected to an editorial describing a "sullen and gloomy atmosphere" in the halls and unmotivated students and teachers. The principal considered the newspaper to be a public relations vehicle for the school. Therefore, he was offended by the negative image presented in the article. Secondly, the principal took umbrage at the title of an article "Whudafxup with that?" critical of the school's Channel One Broadcasting ads for TRUTH, a campaign against tobacco use. Ironically, every morning, the school aired on its mandatorily-watched television programming the TRUTH ad displaying the word "Whudafxup." In an all-too-familiar scenario, the students never legally pressed their objection to the censorship because they were graduating--a common occurrence which weakens students' positions against school officials.

            As I mentioned in a previous post, Globe high school also confiscated an entire edition because of one hookah article, despite the newspapers' clear disclaimer that the views of the authors do not reflect those of the administration and assertion of public forum status.