By Mike Hiestand
You can’t always tell who wins from the score.
The high school press recently won a major legal victory – but only if you knew what to look for.
Late last year, officials at Wooster High School in Wooster, Ohio, confiscated the entire press run of the student newspaper, the Blade, after the paper ran a story that raised questions about the enforcement of the school district’s alcohol policy. School officials claimed that the story was “potentially defamatory.” According to courtroom testimony, the story quoted two students by name. One of them was the school board president’s daughter who, according to the Blade story, admitted to drinking at an off-campus party. The story also quoted her as saying that she received school punishment. However, school officials say the girl never admitted to wrongdoing and was never punished. The student journalists maintain that the Blade reporter quoted the student accurately, though they acknowledge that the girl was not punished.
The students, with the help of their attorney, Ken Myers, filed a lawsuit against the school. That case is scheduled to go to a full trial later this year. They also asked the court to issue a preliminary ruling prohibiting school officials from confiscating future issues in similar situations. Partly because the legal standard for issuing preliminary court orders is so high, the court denied their request in February.
So – on its face – the Blade lost Round One. But, man, did they ever win big for the rest of us.
Before ruling against the Blade, Judge James Gwin said that he first had to look to the policies and practices that governed the newspaper to determine whether it was a public or nonpublic forum. This was important, he noted, because nonpublic forum student newspapers could be censored under the very broad “Hazelwood standard,” named after the 1988 Supreme Court case that significantly reduced the First Amendment protections available to most high school student journalists. However, public forum (or limited public forum) newspapers, the judge said, could be censored only when school officials provided much more compelling reasons to justify their actions.
The judge identified nine factors that courts should look to in analyzing the forum status of student media. They were: (1) whether the student media is part of the high school curriculum; (2) whether student staff receive grades; (3) whether the program is supervised by a faculty member; (4) whether the school deviated from its policy of producing the paper as part of its educational curriculum; (5) the degree of control the administration and faculty adviser exercised; (6) the applicable written policy statements of the school board; (7) the school’s policy with respect to the forum; (8) the school’s practice with respect to the forum and (9) the nature of the student media at issue and its compatibility with expressive activity.
Applying these to the Blade, the judge found it to be a limited public forum newspaper.
The legal analysis used by Judge Gwin is essentially the same one that the Student Press Law Center – since Hazelwood – has argued should be used by courts to determine when censorship of high school publications is legal and when it is not. But unfortunately, our saying it didn’t necessarily make it so. Only a handful of post-Hazelwood high school censorship cases have gone to court and none took the opportunity to plainly annunciate the legal test to be used in determining the forum status of a publication. Until now.
In Hazelwood, the Supreme Court clearly recognized the two different categories of student media, but it gave little guidance to judges about how they should distinguish between forum and nonpublic forum publications. Largely because of the ambiguity, many school officials have simply ignored the distinction and read Hazelwood as conferring an unlimited license to censor whatever they wanted. The Blade decision should help put the brakes on that.
The decision makes clear that school officials had better know the forum status of student media before they decide to censor it. Where a student publication is a public or limited public forum, censorship will be allowed in only a few, fairly rare situations. The judge in this case, for example, found that school officials reasonably believed that the Blade article was defamatory. At least for purposes of a preliminary ruling, he said, that was enough. But most high school censorship cases don’t involve defamatory material – they involve content that school officials simply don’t like. That sort of weak excuse won’t fly under the analysis adopted by this court.
In order to censor public or limited public forum student media, school officials must meet the higher Tinker standard (named after the 1969 Supreme Court case on which it is based). Unlike Hazelwood, Tinker provides significant First Amendment protection to student speech. Under Tinker, school officials must show, at a minimum, that the publication they propose to censor contains material that they reasonably believe is unlawful or likely to cause a serious, physical disruption inside the school. I estimate that might be a legitimate excuse in less than two percent of the censorship incidents students report to us. Those are numbers with which America’s student media can probably live.
Loss, shmoss! If only all “defeats” were so wonderful. Thank you, Wooster Blade.
The full text of the decision in Draudt v. Wooster City School District Board of Education, Case No. 5:03-CV-62 (N.D. Ohio February 14, 2003), is available on the SPLC website.