Where Do Student Press Rights Start … and Stop?

Introduction
United States Supreme Court decisions have taken student journalists on quite a roller coaster ride since 1969. The journey began with a ringing endorsement of freedom of expression, within certain educational limitations; then a warning that those limitations might be more strict than first imagined; then a decision that handed principals and school administrators strong, though still not unlimited, control over many high school student publications, right down to the details of grammar and writing style.

In 1943 in West Virginia State Board of Education v. Barnette, the Supreme Court recognized that public school students have First Amendment rights. Twenty-six years later in Tinker v. Des Moines School Independent Community School District, the Supreme Court first gave a specific standard for protection of students’ First Amendment rights. The only control given to school administrators was the right to punish school-sponsored student speech that significantly disrupted the work and discipline of the school or interfered with the rights of others.

In December 1965, 12 students were sent home from schools in Des Moines, Iowa. The high school and middle school students were wearing black armbands to protest American involvement in Vietnam. In January 1966, three of these students — 16-year-old Christopher Eckhardt, 15-year-old John Tinker and his 13-year-old sister Mary Beth — decided to sue the school board. Their belief that their First Amendment rights were violated resulted in the February 1969 Supreme Court decision in Tinker v. Des Moines School Independent Community School District, a landmark case in students’ rights.

Bethel School District No. 403 v. Fraser in 1986 extended to school administrators the right to punish school-sponsored student speech that was contrary to the values the school sought to promote. Because Bethel did not deal with student publications, the assumption was that Tinker could still apply to student media. But the tone and model of Bethel — control of school-sponsored student expression reflective of values the school wants to teach — suggested, two years before Hazelwood that if a press rights case came to the High Court, the same rationale applied in Bethel would also apply to an official student publication.

In 1988, Hazelwood School District v. Kuhlmeier took that next step in limiting student expression.

Through a study of Tinker v. Des Moines Independent Community School District and Hazelwood School District v. Kuhlmeier students will be introduced to their First Amendment rights and the limits to their freedom of speech and press in school.

Key Concepts

• Students do have First Amendment rights.
• Student expression may be limited in school. Educators may regulate student speech that is part of a school-sponsored student activity and inconsistent with the school’s basic educational mission. The Hazelwood decision modified the Tinker decision, but it did not overturn it.
• The Hazelwood decision need not apply to student publications that are a “public forum” by “policy or practice.”

First Principles
If you and your students have not already done so, you may want to discuss the First Amendment and this curriculum’s First Principles. The list of First Principles was developed to explain in practical, everyday terms just what the First Amendment means.

Activities in this lesson relate to all of the First Principles and are especially relevant to the following:

• The First Amendment affirms the freedom of the individual.
• Free expression is the foundation — the cornerstone — of democracy.
• The First Amendment tells the government to keep its “hands off” our religion, our ideas and our ability to express ourselves.

First Moments
In November 1999, 17-year-old Marina Hennessy, a junior at Avon High School in Indiana, wrote an article on hazing for Echo, the school newspaper, despite the principal’s efforts to prevent Hennessy from writing it and the athletic director’s accusations of yellow journalism. Football Fun or Serious Business relates the steps that Marina took after she heard students talking about summer football camp. After each step, you are to ask your students what they would do. Use this scholastic press freedom case study to get students to talk about freedom of expression in school.

Procedure

1. Give students copies of Case Summary: Tinker v. Des Moines Independent Community School District. Read and discuss the historical context and facts of Tinker, then answer the questions.
   
   
2. Teachers may provide students with a summary of Bethel School District No. 403 v. Fraser or proceed to procedure #3.
   
   
3. Either before or during discussion of the Hazelwood case, students should be introduced to the “public forum” concept. Ask students what it means to “get on a soap box.” Familiarize students with Speaker’s Corner at Hyde Park in London where Britons do stand on a soap box to exercise their right to free speech. Why do Americans value freedom of expression? Give students copies of “Newspaper as a Public Forum”. After reading about Zucker v. Panitz, discuss the questions provided to establish an understanding of what a public forum is.
   
   
4. Give students copies of Case Summary: Hazelwood School District v. Kuhlmeier. Read and discuss the situation at Hazelwood East High School that led the Supreme Court to review the case. Answer the questions and discuss the Supreme Court decision.
   
   
5. When student journalists wish to protect their First Amendment rights, they must, by practice or statement, establish their student medium as a public forum. Determine when and under what circumstances it is legally permissible for your school’s officials to censor your student publications. Answer the questions found on “The SPLC First Amendment Rights Diagram,” a flow chart designed by the Student Press Law Center.
   
   
6. How do Tinker, Bethel and Hazelwood decisions apply in contemporary situations? Do “It’s Your Decision” activity with students. We provide four activities from which you may select an activity appropriate for your students: It’s Your Decision: Name That Player, It’s Your Decision: Block That Site, It’s Your Decision: Whose Photo Is It? and It’s Your Decision: Punishment for a Personal Web Site? Ask students to apply what they know of the Tinker standard and Hazelwood decision to these more recent situations. In each activity, students should be given the basic situation and three choices. Teachers are provided the real situation and background information for use during discussion.
   

Enrichment

1. In March 2001, the Association for Supervision and Curriculum Development and the Freedom Forum First Amendment Center announced a nationwide initiative to establish First Amendment Schools. These public elementary, middle and high schools will be models of teaching students the rights and responsibilities of citizenship and democracy and students practicing their First Amendment freedoms in the school setting.
   
   In this lesson, your students have been introduced to important Supreme Court decisions concerning student press rights. They have discussed the application of these decisions in real-life situations. Tell students about the First Amendment Schools initiative. Ask them to assume they are delegates to a conference to plan model guidelines for First Amendment Schools. Although First Amendment Schools will protect all five rights — freedoms of speech, religion, press, assembly and the right to petition — your delegation’s assignment focuses on scholastic press rights. Make a list of guidelines for student free expression that your delegates will propose at the conference. You might refer to the Student Press Law Center’s Model Guidelines for Student Media for examples.
   
   
2. Review the staff manuals of your school’s student publications. Are they as complete as they should be? Use the Model Guidelines for Student Media prepared by the Student Press Law Center to evaluate your provisions.
   
   
3. Six states (Arkansas, California, Colorado, Iowa, Kansas and Massachusetts) have state student free expression laws and two states (Pennsylvania and Washington) have state administrative codes that address student rights and responsibilities. If you live in one of these eight states, read the document that applies to your student free expression. Links to these documents can be found on the Student Press Law Center Web site.
   
   Discuss the following questions with students. Why do public high school media want this legislation? What might school officials see as the drawbacks? If you do not have such legislation where you live, do you think your school would benefit from it? Why or why not?
   
   
4. Discuss the application of the Tinker and Hazelwood decisions to independent student publications. Independent student publications produced without school resources such as “underground newspapers” are still protected by the Tinker standard. Do students at your school produce and distribute any such publications?
   
   Outside of school, students free expression rights are largely the same as those of any other members of the community. What are some means by which students can publish their news or opinions outside of school?
   
   If your students have considered publishing their own student publication, they might first want to check out the Student Press Law Center’s “Surviving Underground” guide which will help them to understand their rights — as well as the important responsibilities that go along with being their own publisher. Students publishing their own Web site may want to consult the SPLC’s CyberGuide.
   
   
5. Discuss Bethel School District No. 403 v. Fraser with students. You may wish to share the reflections of those involved in the case. In April 2001, Matthew Fraser, a debate coach at Stanford University, reflected on the speech and case that limited student free speech rights. Summarize or give students copies of “Matthew Fraser speaks out on 15-year-old Supreme Court free-speech decision.” This article includes comments from the lawyers who represented the Bethel School District and Fraser, as well as an analysis of the impact of the Supreme Court decision. In what ways may the composition of the Supreme Court and the time period when a case is heard influence the decision of the Court?
   

Resources

On the Web
Online Conversation — Tinker Plaintiffs
For Law Day in 1998, the American Bar Association Division of Public Education interviewed John and Mary Beth Tinker and Christopher Eckhardt. The site includes their responses to questions, case summary and resources.

The Supreme Court on “Hazelwood: A Reversal on Regulation of Student Expression,” ERIC Digest No. 8
An analysis of the Supreme Court decision by Dr. Thomas Eveslage, Temple University, Department of Journalism.

JEA Press Rights
The Scholastic Press Rights Commission of the Journalism Education Association provides perspective and resources on publications, photography, law and ethics, censorship and policies. Activities and exercises are available. Download an application for Let Freedom Ring: America’s First Amendment High Schools Award.

Journalism Education Association
The professional organization for middle school and high school media advisers, JEA provides professional development opportunities and co-sponsors two conventions per year with the National Scholastic Press Association. The Web site includes the JEA student press rights position.

ACP/NSPA Student Media Sourcebook
Links to organizations and resources to help student journalists and advisers.

For Journalism Teachers Only
A thoughtful essay and many resources and links are found on this site that Dianne Smith created.

The First Amendment Handbook
The Reporters Committee for Freedom of the Press provides a quick reference source that covers many topics, including libel, surreptitious recording, access and copyright.

Ethics Cases Online
Case studies and activities for use in the classroom.

Video
Profiles of Freedom: A Living Bill of Rights
Close Up Foundation videotape

CD
Goldman, Jerry. The U.S. Supreme Court’s Greatest Hits. CD-ROM. Multimedia: audio, images, text. 1999.
Developed and edited by Jerry Goldman, Northwestern University professor and developer of OYEZ Web site. Contains more than 70 hours of the actual oral argument in 50 of the most significant constitutional cases; searchable by name, date and participation of justices. Cases include Lee v. Weisman, Miller v. California, Texas v. Johnson, Tinker v. Des Moines Ind. Comm. School District.

In Print
Balancing Power and Liberty in the School in Sure-Fire Presentations, pp.16-19.

Tinker v. Des Moines is among three case studies in lessons and activities used to explore the need to balance students’ rights and the authority of a governing body. (PC# 497-0010) $5.00 Contact: American Bar Association Service Center, 800/285-2221.

Dardene, Robert. A Free and Responsible Student Press. The Poynter Institute for Media Studies. 1996.
Beginning with the premise that the mission of the student press is a profound democratic act and a way for students to learn the meaning of responsibility, this guide provides a vision of success in scholastic journalism.

DuBoff, Leonard D. The Law (in Plain English) for Photographers. New York: Allworth Press. 1995.
The author presents the legal issues faced by photographers including copyright law and libel, rights of privacy, censorship and obscenity, digitization and manipulation of images.

Irons, Peter. The Courage of Their Convictions. New York: The Free Press. 1988.
One chapter is devoted to the Tinker v. Des Moines case.

Johnson, John W. The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (Landmark Law Cases and American Society). Lawrence, Kansas: University of Kansas Press. 1997. Hardback.
This excellent study details the personal decisions of the students and their parents within the historical context of the 1960s. Perspectives on the limits of free speech, the permissible limits of public protest, symbolic speech and student freedom of expression can be gained through reading about this most important student rights case.

Johnson, John W. The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (Landmark Law Cases and American Society). Lawrence, Kansas: University of Kansas Press. 1997. Paperback.
A carefully researched and well written comprehensive study of the case, including the appeals process on the way to the Supreme Court.

Raskin, Jamim B. We the Students: Supreme Court Decisions For and About Students. Washington, D.C.: CQPress. 2000.
A comprehensive casebook of Supreme Court and lower court decisions that govern the lives of American public school students. Cases cover length of hair and dress, freedom of religious expression and Internet pages, searches of students and due process, equal protection and sexual harassment.

Student Press Law Center. Law Of the Student Press. Washington, D.C.: Student Press Law Center, 1994.
The essential reference book on student press freedom. Sections cover libel, invasion of privacy, press freedom at public and private schools, underground newspapers and the Internet. Go to the SPLC Web site for the Press Law Pack, pamphlets and other materials.

Student Press Law Center. The Starting Point: Young Journalists and the Law. 1999.

The Newspaper Association of America Foundation, in partnership with the Student Press Law Center, produced this 41-page guide to the special legal and ethical issues involved when journalists are minors and when journalists interview sources who are minors. A review of legal and ethical issues in easy-to-understand language, along with related exercises, suggestions and recommendations are provided. Targeted to adults who work with young people, each of the four chapters — “Libel,” “Invasion of Privacy,” “Conflict with Authority” and “Using the Internet” — includes a case study with follow-up question-and-answer exercises to be used in classrooms and training sessions.

Student Press Law Center. 1815 N. Fort Myer Drive, Suite 900, Arlington, VA 22209. Devoted exclusively to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, SPLC provides free legal advice and reasonably priced educational material. Every media adviser and editor should have a copy of Law of the Student Press, a valuable resource in every school. Packets available through SPLC include:

Hazelwood v. Kuhlmeier: A Complete Guide to the Supreme Court Decision (1992)
Hazelwood and the College Press (1991)
Press Freedom and Private Schools (1992)
Liability for the Student Media: Who’s Responsible When Something Goes Wrong (1997)
Doing it Underground: A Legal Guide for Alternative Student Publications (1998)
Guide to Liability for Online Student Media (2000)
IRS Form 990: a Public Record for the Private School Journalist (1994)

For information visit www.splc.org or call (703) 807-1904.

National Standards
United States History, Standard 8: Understands the institutions and practices of government created during the Revolution and how these elements were revised between 1787 and 1815 to create the foundation of the American political system based on the U.S. Constitution and the Bill of Rights.

Civics, Standard 8: Understands the central ideas of American constitutional government and how this form of government has shaped the character of American society.

Civics, Standard 9: Understands the importance of Americans sharing and supporting certain values, beliefs, and principles of American constitutional democracy.

Civics Standard 18: Understands the role and importance of law in the American constitutional system and issues regarding the judicial protection of individual rights.

Benchmarks
United States History, Standard 8, Grades 9-12: Understands the Bill of Rights and various challenges to it (e.g. arguments by Federalists and Anti-Federalists over the need for a Bill of Rights, the Alien and Sedition Acts, recent court cases involving the Bill of Rights.)

Civics, Standard 8, Grades 6-8: Knows opposing positions on current issues involving constitutional protection of individual rights such as limits on speech (e.g., hate speech, advertising), separation of church and state (e.g., school vouchers, prayer in public schools), cruel and unusual punishment (e.g., death penalty), search and seizure (e.g., warrantless searches), and privacy (e.g., national identification cards, wiretapping).

Civics, Standard 9, Grades 9-12: Understands the interdependence among certain values and principles (e.g., individual liberty and diversity).

Civics, Standard 18, Grades 9-12: Knows historical and contemporary practices that illustrate the central place of the rule of law (e.g., submitting bills to legal counsel to insure congressional compliance with constitutional limitations, higher court review of lower court compliance with the law, executive branch compliance with laws enacted by Congress); Understands how the rule of law makes possible a system of ordered liberty that protects the basic rights of citizens.

Interdisciplinary
Advanced Placement English Language and Composition teachers might introduce students to the Tinker and Hazelwood decisions before having students practice an AP examination free response question. In 1990, Question 3 began: “Recently the issue of how much freedom we should (or must) allow student newspapers was argued all the way to the Supreme Court. Read the following items carefully and then write an essay presenting a logical argument for or against the Supreme Court decision.”

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