Senior Research Project Proposal

Senior Project Proposal

Michael Appel

[11/12/2014]

1. Title of Project:

Too Much Tinkering with Tinker: Post-Hazelwood Censorship of Student Publications

2. Statement of Purpose:

My inquiry into post-Hazelwood practice examines the bedrock role and responsibility of public high schools: raising well-educated citizens prepared to participate fully in our nation’s civic life and to navigate the marketplace of ideas as adults. Speech suppression on the part of schools might shield students from stark realities, but leaves them ill-equipped to think critically and speak articulately on controversial subjects.

To inculcate respect for the First Amendment, scholastic newspapers should be deemed public forums for students, consistent with the 1969 opinion of the Tinker Court. However, students' constitutional right of free expression was severely curtailed in 1988 by the Hazelwood decision, which replaced Tinker’s substantial disruption test with the pedagogical interest standard. Twenty-seven years later, Hazelwood  has left a legacy of inconsistent case law and a troubling chilling of free speech. A survey of the prior restraint policies of high schools in Arizona will afford a comparison and contrast with policies in other states, potentially supporting a call for a national uniform legal standard or enacting Arizona state legislation.  Through my Senior Research Project, this paper intends to show that Hazelwood's prior restraint precedent is based upon a standard that is too broad, contrary to school administrators' aim to avoid liability, and needs to be redressed with express language returning to the Tinker standard to guarantee the First Amendment rights of student journalists.

Should Arizona enact "Anti-Hazelwood" legislation to protect the First Amendment rights of student journalists?  To answer this question, I will survey all Arizona public high schools to determine both school administrative policy and student journalism practice regarding school censorship, in the forms of prior restraint, prior review, and punishment, to weigh Hazelwood's chilling effect on the exercise of free speech, if any. This survey data documenting the existence and extent of school censorship over school-sponsored publications in Arizona's public high schools will be used to evaluate the need for Arizona to adopt a state law declaring all student publications to be public forums. Researching legal precedent will contrast two landmark U.S. Supreme Court cases concerning school censorship: the robust First Amendment protection for student free expression under Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), and the severe curtailment of student free speech in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L.Ed.2d 592 (1988). An analysis of lower-court decisions interpreting Hazelwood's standard will yield a trend of increasing encroachment upon free speech in schools, directly allowing school officials wide latitude in justifying their censorship and indirectly encouraging self-censorship by the student journalists themselves. "Anti-Hazelwood" laws in seven other states will be addressed as models for Arizona.

3. Background:

As editor of the BASIS Gazette, I am acquainted with the practice of prior review and  prior restraint. Before distribution of each monthly issue, the school's administration--Head of School Mrs. McConaghy--reads the issue (prior review) and either accepts or requests changes before  publication (prior restraint). While this system has never been problematic at BASIS Scottsdale, I learned about potential liability issues while editing our April 1st satire issue last year. Online, I read, with trepidation, how student editors, advisers, and school administrators can be liable for offensive articles or forced to defend themselves in costly lawsuits. Ironically, schools using prior restraint can be held accountable for student publications, but schools allowing unfettered publication cannot be held liable. Thus, I empathize with the school's perspective for using prior restraint to preemptively prevent liability issues.

At the same time, I have exercised self-censorship over content. I believe that this not only hampers learning the subtle points of journalist ethics, but also siphons much-needed channel for discussion about potentially controversial, but pertinent, subjects for a teenage audience. Denying students the learning opportunity to exercise discretion, judgment, and journalistic ethics is a disservice to students and a practice contrary to the goal of education.

       

4. Prior Research:

A. Case Law:

  

The U.S. Supreme Court first addressed freedom of speech in the context of high schools in Tinker v. Des Moines School District, 393 U.S. 503 (1969). Writing for the majority, Justice Fortas' opinion established that a student's right to free expression should not be restricted while in school or on school grounds. Fortas wrote: "First Amendment rights are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (Tinker, 393 U.S., at 506). The Tinker Standard held that school administrators who impose limitations on students' free speech must demonstrate that the speech at issue "materially disrupts classwork or involves substantial disorder or invasion of the rights of others " (Tinker, 393 U.S., at 513). Although the Tinker case specifically concerned a school order prohibiting the wearing of black armbands as anti-Vietnam war protest, it was widely interpreted by courts to cover all forms of student publications, including student newspapers and yearbooks (Tinker 393 U.S., at 504).

In 1988, the U.S. Supreme Court, in Hazelwood School District v. Kuhlmeier, severely curtailed Tinker's First Amendment protections of public high school student journalists (484 U.S., 260, 108 S.Ct. 562, 98 L.Ed.2d 592). Under Hazelwood, high school administrators can exercise prior review and prior restraint to censor school-sponsored newspapers. In the case, the student editor and two reporters sued the school district over the high school principal's removal of two pages prior to publication of the school newspaper, which included articles on teen pregnancy and coping with divorce, as well as unobjectable articles, on the grounds that the material was unfit for an adolescent audience. Justice White, delivering the majority opinion, applied a new test for school censorship: a school's action must be "reasonably related to legitimate pedagogical concerns" (Hazelwood, 484 U.S., at 273). Thus, censorship does not violate the First Amendment if the school has a "valid educational purpose" for its censorship (Hazelwood, 484 U.S., at 273).

The majority opinion did not overrule Tinker. However, the dissent written by Justice Brennan finds it "ironic" that the majority purported to reaffirm Tinker's "time-tested proposition" that students do not need to check their First Amendment rights at the schoolhouse door (Hazelwood, 484 U.S., at 290). Justice Brennan found the school newspaper to be a forum to which the Tinker standard should apply (Hazelwood, 484 U.S., at 277). Moreover, he reasoned that school officials "can camouflage viewpoint discrimination as the 'mere' protection of students from sensitive topics" (Hazelwood, 484 U.S., at 288).

B. Interpretations of Case Law:

Public forums enjoy the highest level of First Amendment protection. In non-public forums, the state possesses the right to monitor and suppress expression, unlike public forums. In Tinker, schools can suppress student speech if it is disruptive or unprotective to public forum law, such as libel or obscenity. In the Hazelwood case, the Supreme Court deemed the school newspaper to be a non-public forum (Hazelwood, 484 U.S., at 269). Public forums, therefore, are exempt from Hazelwood. The creation of a public forum requires school officials, by policy or practice, to allow students unrestricted use of a publication. It compares "indiscriminate use" in a public forum against "a supervised learning experience for journalist students" in a non-public forum (Hazelwood, 484 U.S., at 267). In Hazelwood, the court relied upon the district court findings of fact that the advisor acted as "the final authority with respect to almost every aspect of the production and the publication...including in its content" (Hazelwood, 484 U.S., at 268). Because Hazelwood only applies to school-sponsored student publications that are not public forums,  underground, alternative, and even extracurricular student publications arguably have greater First Amendment protection. Hazelwood's three criteria for determining if a publication is school-sponsored include the following: supervision by a faculty member, design of the publication to impart particular knowledge or skills to student participants, or use of the school's name or resources (“The Hazelwood Decision and Student Press” Scholastic.com). Thus, for student publications that are designated public forums, extracurriculars, or underground, the Tinker standard still applies. Furthermore, the Hazelwood court specifically stated that any curricular, non-forum student activity, such as theatrical productions, is covered by its ruling (Hazelwood, 484 U.S., at 271).

In the subsequent 27 years, Hazelwood ambiguous standard has chilled free speech by student journalists, both by allowing school officials wide latitude in justifying their censorship and by indirectly encouraging the self-censorship by the journalists themselves (“Survey: One-third of Journalism Students, Teachers Nationwide Report Administrative Censorship,” Student Press Center ). Hazelwood's ruling reached beyond high schools to cover college publications, in Hosty v. Carter, 412 F. 3d 731, (2005). The 7th Circuit extended Hazelwood's framework to all "subsidized student newspapers." In Dean v. Utica, a federal court in Michigan held that a high school newspaper was a limited public forum because of its 25 consecutive years of no administrative prior review, bestowing upon it public forum status (Dean, 345 F. Supp. 2d 799 (E.D. Mich. 2004)). However, the 2nd Circuit, by denying certiorari, maintains Ochshorn v. Ithaca City Sch. Dist., 132 S. Ct. 422  (2011)  as the law in the circuit, holding that a school newspaper was merely a "limited" public forum and therefore subject to Hazelwood censorship, contrary to Dean.

       

Hence, a national patchwork of court decisions interpreting Hazelwood has left uncertainty in its wake, moving many states and school districts to pass their own laws and regulations, expressly granting public forum protection to school publications. Seven states currently have enacted anti-Hazelwood laws: Arkansas, California, Colorado, Iowa, Kansas, and Massachusetts. The District of Columbia, Pennsylvania, and Washington have state Board of Education regulations, increasing student's freedom of the press (“What Public Forum Doctrine Means for your Student Publication,” Student Press Law Center). Arizona has no such law, although SB1212-441R-1 Ver was introduced as a bill but failed to pass. However, the University of Arizona's "Governing Statement" for student media clearly asserts student editorial control, declaring the University to be "free of censorship and advance approval of content"  (“What Public Forum Doctrine Means for your Student Publication,” Student Press Law Center). Likewise, Arizona State University is one of sixteen colleges earning a "green light" for protecting free speech rights, according to FIRE--The Foundation for Individual Rights in Education (“Weinstein Comments on Student Freedom of Speech” ASU News). A 1970 survey of Arizona high schools regarding school newspaper censorship offers a pre-Hazelwood comparison to my 2015 survey (James, “Propaganda or Education? Censorship and School Journalism”).

5. Significance:

My research question regarding whether Arizona should pass a state law declaring all student publications to be public forums, free from school censorship by prior review, prior restraint, or punishment, is both a timely issue and a matter of fundamental importance to most Americans.

Now is the opportune time to address how censorship of student press in Arizona is antithetical to the state’s best interest in educating its young citizens. During the last decade, Arizona has been in the spotlight in national news, and the glare has not always been flattering. Issues ranging from SB-1070 immigration reform to the so-called anti-gay Religious Freedom Restoration Act SB-1062 to border control and surveillance to medical marijuana have incited vehement passions on both sides. High school articles on these subjects are ripe for viewpoint discrimination by a principal under Hazelwood.

However, Arizona is part of the 9th Circuit Court of Appeals; federal precedent in the 9th Circuit trumps decisions in Arizona Circuit courts. 9th Circuit rulings support a broader reading of Hazelwood’s language to preserve  viewpoint neutrality restriction on schools. Consequently, to maintain consistency with the 9th Circuit, Arizona should follow the model state legislation of other 9th Circuit states, such as California, Washington, and Colorado, and pass its own state law expressly bestowing public forum protection to all student publications.

The current political climate points in this direction. States’ experimentation with legal marijuana laws and legal same-sex marriage are reasonable fodder for student high school journalists. Instead of squelching discussion, schools should use controversies as teachable moments to guide reasoned debate. Rather than principals, school newspaper advisors, possess more expertise to explore the implications of journalistic ethics and judgment, having students reach a consensus to determine the value of a subject.

Not only did the framers of the Constitution understand the primacy of the First Amendment to protect all other individual rights, the majority of Americans today remain in agreement.   Freedom of speech is America's favorite freedom, according to the annual State of the First Amendment Survey. Approximately 47% of respondents ranked Freedom of Speech as most important, five times the amount choosing the second choice, freedom of religion, picked by 10% (“America’s Favorite Freedom” First Amendment Center).

Furthermore, a 2014 survey by the Knight Foundation, a non-profit promoting quality journalism, uncovered a significant reversal of past survey findings (“Students, Teachers Swap Positions on First Amendment,” The Daily Caller). From March to June 2014, it surveyed 10,463 students and 588 teachers, with a margin of error plus or minus one percentage point for students and plus or minus 4 percentage points for teachers (“Students, Teachers Swap Positions on First Amendment,” The Daily Caller). For the first time, students more jealously guard their first amendment rights than their teachers. 24% of U.S. high school students polled agreed that "the First Amendment goes too far," while 38% of U.S. teachers agreed (“Students, Teachers Swap Positions on First Amendment,” The Daily Caller). In 2006, the contrary occurred: 45% of high school students, compared to only 23% of teachers (“Students, Teachers Swap Positions on First Amendment,” The Daily Caller). Moreover, 65% of high school students listed freedom of speech as the most important, holding a wide margin over freedom of religion at 25%, but teachers held freedom of religion the most important at 42%, followed by speech with 40% (“Students, Teachers Swap Positions on First Amendment,” The Daily Caller).

The shift possibly reflects a generation raised on the internet as a daily part of their lives. Hence, avid student users of social media were more likely to endorse in the First Amendment (“Students, Teachers Swap Positions on First Amendment,” The Daily Caller). Indeed, one could argue that high school students today are better equipped to handle Tinker’s fuller protection of speech, rather than needing Hazelwood’s administrative filter, because this Millennial generation has cut their teeth on the Wild West of the Internet, gradually and independently developing critical thinking skills to judge the veracity and weight of innumerable websites.

Researching post-Hazelwood case law supports a finding of the chilling effect on the exercise of free speech by student journalists. From the period between 1988 to 1992 alone, The Student Press Law Center recorded a precipitous increase in student requests for legal aid; 540 requests in 1998, to 1364 in 1992 (“Teaching Censorship,”FAIR). Hazelwood's ambiguous standard allowing a school's "legitimate pedagogical concern" to justify an abridgment of First Amendment rights of school-sponsored publications has spawned confusion and over-caution on the part of both principals and students. The result: arbitrary censorship by schools and indirect self-policing by students. A 1989 University of Arizona study found that 17% of journalism advisors interviewed believe that students were less likely after Hazelwood to pen editorials criticizing school policy, and 41% stated that students were gradually growing more accepting of Hazelwood's strict standard (“Teaching Censorship,”FAIR).

My survey of high schools in Arizona will determine both school administrative policy and student journalist actual practice of prior restraint and review to weigh the effect of Hazelwood on the exercise of free speech. For example, high school yearbook censorship has been especially newsworthy this past year in Arizona (“Globe High School Censors Its Student Newspaper,” Phoenix News and Events;  “Arizona School Censors, Ruins Yearbooks with Black Tape,” NY Daily News; “Parents are Outraged After Arizona High School Features Teen Moms, Dads in Yearbook,” NY Daily News). Hopefully, my survey will be a much needed update of the 1970 survey concerning school newspaper censorship conducted by the Arizona English Teachers Association. If the lack of firm, clear standards promulgated by Hazelwood and its progeny and my survey results ultimately supports an argument for Arizona to adopt a state law against school publication censorship, then Arizona should follow the example of seven other states and draft anti-Hazelwood legislation.  

6. Description:

My research primarily entails library research and internet research using the legal search engine LexisNexis for case law, legal arguments, Arizona legislative history, and anti-Hazelwood state laws. Research will be conducted on-sight at the law office where I am interning. In addition, I will create and distribute via email a survey to every public high school in Arizona and every high school student newspaper in Arizona to determine both official policies of prior review and prior restraint and the prevalence and type of censorship, if any. Then, I will extrapolate trends using statistics based on the total amount of replies received. Finally, I will conduct internet research to compare my survey results to the 1970 Arizona study to investigate the effect of Hazelwood on free speech by high school journalists.

As a result of my research, I will derive conclusions, supported by statistics about the extent and existence of censorship in Arizona high schools. I will present the survey data results in tables and graphs. This information potentially could support a movement to reform Arizona state law to conform with anti-Hazelwood laws in seven other states.

7. Methodology:

1. Research relevant U.S. Supreme Court precedents: Tinker and Hazelwood

2. Research subsequent lower-court rulings interpreting Hazelwood

3. Research Student Press Law Center, First Amendment.org, and FIRE (Foundation for Individual Rights in Education) websites to analyze current trends

4. Look up email addresses for all high schools in Arizona; draft cover letter explaining my SRP; create a simple, concise and anonymous survey to encourage participation; email survey to all Arizona high school offices and high school newspapers

5. Interview leading experts in field at ASU Walter Cronkite School of Journalism, including Joseph Russomanno. In addition, I can contact James Weinstein at ASU College of Law, a professor of constitutional law

6. Interview Judy Cato at Mesa Public School District, which is a client of the law office where I will be interning

7. Record results of survey and formulate statistics based on total number of responses; present data in table and graphs

8. Based on survey results, conclude if Arizona should adopt anti-Hazelwood state law

8. Problems:

The largest potential challenge to answering my research question is an inadequate response to my survey. In that scenario, I would more narrowly limit my survey to include just Maricopa County or just the Scottsdale School District. If some interview requests are denied, I will find alternative interview subjects at ASU.

9. Bibliography:

"America’s Favorite Freedom." First Amendment Center.Web. 1 Nov. 2014.

"'Anti-Hazelwood' Freedom of Expression Laws Only Go so Far." - Student Press Law Center. Web. 1 Nov. 2014.

Arizona Senate Bill SB 1212- 441R-1Ver

"Arizona School Censors, Ruins Yearbooks with Black Tape." NY Daily News.Web. 1 Nov. 2014.

“Arizona Student Media Advisory Board Governing Statement” Student Press Law Center

"ASU Named One of Seven Best Free Speech Colleges | ASU News | The State Press | Arizona State University." ASU News.Web. 1 Nov. 2014.

"Censored Yearbook Quotes Raised Questions of Prior Review at Tucson High School." - Student Press Law Center.Web. 1 Nov. 2014.

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985).

Dean v. Utica, 345 F. Supp. 2d 799 (E.D. Mich. 2004).

Fleming v. Jefferson County School District R-1, 298 F.3d 918 (10th Cir. 2002), cert. denied, 537 U.S. 1110 (2003).

"Globe High School Censors Its Student Newspaper." Phoenix News and Events. 7 Feb. 2008. Web. 1 Nov. 2014.

"Hazelwood's Chill: The 25-year-old Ruling's Impact on Students." - Student Press Law Center.Web. 1 Nov. 2014.

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L.Ed.2d 592 (1988).

Hosty v. Carter, (412 F. 3d 731, 2005).  

James, Max. "Propaganda or Education?Censorship and School Journalism." Arizona English Bulletin 13.1 (1970): 37-41. Print.

             

Ochshorn v. Ithaca City School District, 132 S. Ct. 422 (2011), cert. denied.

"Parents Are Outraged after Arizona High School Features Teen Moms, Dads in Yearbook."NY Daily News.Web. 1 Nov. 2014.

"SPLC." Public Records Letter Generator.Web. 1 Nov. 2014.

"SPLC." Contagious.Web. 1 Nov. 2014.

"SPLC." Symptoms.Web. 1 Nov. 2014.

Student Press Center “Survey: One-third of Journalism Students, Teachers nationwide report administrative censorship”).

"SPLC Model Legislation to Protect Student Free Expression Rights." - Student Press Law Center.Web. 1 Nov. 2014.

"SPLC." Nation's Largest Journalism Teaching Organization Condemns Hazelwood Censorship. Web. 1 Nov. 2014.

"Students, Teachers Swap Positions On First Amendment." The Daily Caller.Web. 1 Nov. 2014.

"Teaching Censorship." FAIR. Web. 1 Nov. 2014.

"The Hazelwood Decision and Student Press | Scholastic.com." Scholastic Teachers.Web. 1 Nov. 2014.

"The Phoenix." : Having the Final Say: Administrators or Students? Web. 1 Nov. 2014.

"The Phoenix." : When Watchdogs Heel. Web. 1 Nov. 2014.

Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731. (1969).

Tobin, Susannah Barton (2004). Divining Hazelwood: The need for a viewpoint-neutrality requirement in school speech cases. Harvard Civil Rights-Civil Liberties Law Review, 39, 217-265.

"Weinstein Comments on Student Freedom of Speech." ASU News.Web. 1 Nov. 2014.

"What Public Forum Doctrine Means for Your Student Publication." - Student Press Law Center.Web. 1 Nov. 2014.

"8 Ways a Landmark Supreme Court Ruling Has Changed Student Journalism | Poynter."Poynter.Web. 1 Nov. 2014.