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Public or independent schools:
Whose expression is protected is complex

School type, court decisions state laws and how student media are established  can all have a role

by Kristin Taylor
If public school student journalists face censorship, they can turn to the First Amendment. Because public schools are funded by the government, school officials are government agents. Private (also known as “independent”) schools are not funded by the government, so those school officials are not government agents — the First Amendment does not apply.

This might make one assume that public school students have full speech protection and private school students do not, but it’s not that simple.

The application of the First Amendment to public schools is complex. A good place to start building an understanding of this complexity is the Student Press Law Center’s Top 10 High School FAQ’s.

A public school student’s free speech rights depends not only on major Supreme Court rulings about the First Amendment at school (Tinker v. Des Moines-andHazelwood v. Kuhlmeier, to name the two most impactful), the publication’s forum status and whether the publication is “school-sponsored,” but also on individual state laws, which may expand students’ rights beyond the restrictive Hazelwood standard and return them to the less restrained Tinker standard. The first of these state laws was the California Student Free Expression Law, enacted before the Hazelwood ruling, but many states added statutes like this in years since.

New Voices USA is “a student-powered grassroots movement to give young people the legally protected right to gather information and share ideas about issues of public concern.” This movement seeks to return more states to the Tinker standard through state legislation.

To find out whether an instance of censorship of public school press is legal, consult this SPLC First Amendment Rights of High School Journalists chart — the chart may not yet have been updated to reflect passage of recent New Voices legislation, however, so it’s important to do additional research on your state.

Faculty and staff at independent schools are not representatives of the government, so they are not governed by the First Amendment. However, they may gain free speech protection from other sources

Faculty and staff at independent schools are not representatives of the government, so they are not governed by the First Amendment. However, they may gain free speech protection from other sources.

One potential source is state legislation, which can be expanded to protect independent school students’ speech. Although some states have expanded private students’ free speech rights at the university level, only two states’ legislations currently protect these students at the high school level.

One is California’s Leonard Law. This law excludes schools “controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization,” but it gives all other private high school students the same protections guaranteed by the First Amendment and the California Student Free Expression Law.

The second is Rhode Island; bills H5550  and S600  passed unanimously in June 2017. Known as The Student Journalists’ Freedom of Expression Act, this law now protects both public and private school students.

Private high school students in the other 48 states have other recourse for free speech protection. The Board of Trustees and school leaders may create a free speech policy to guarantee these rights for their students.

Independent school leaders may initially be reluctant to relinquish control of their student publications, but there are compelling reasons so do so. Many school mission statements include statements about encouraging students’ critical thinking, empowering students to be independent and take risks and preparing them for civic engagement. Supporting a free and responsible student press is a concrete embodiment of that mission.

Additionally, schools which empower students’ final say in all content reduce their legal liability for what students publish.

Regardless of whether students attend a public or private school, however, the most powerful argument lies in JEA’s core belief statement:

“We strongly believe free student expression as taught and practiced in journalism classes anchors successful scholastic media. So empowered, our programs showcase the importance of news and media literacy, civic engagement, critical thinking and decision-making as the core of lifelong involvement in a democracy … . The practice of journalism is an important form of public service to prepare students as engaged, civic-minded citizens who are also discerning information creators and users.”

Having a free student press advised by a qualified journalism educator creates informed, responsible students who understand the role of a free press in a democracy. If we want citizens who think critically and participate in the democratic process, we must model this in both public and private high school.

 

QT84: Empower all students with free expression, content  responsibility

Guideline:

Students should be aware of state and federal laws governing their free speech rights. Private  school students are not protected by the First Amendment but may have additional free ****speech protection through state laws or individual school policies.

Private school students seeking free speech rights should use the language of the school’s mission statement to frame their rationale.

Stance:

Private school students are not protected by the First Amendment, but they may have more free speech protection at school than they think.

 

Reasoning/suggestions:

Because public schools are funded by the government, public school students are protected by the First Amendment.

However, the extent of a public school student’s free speech rights depends not only on major Supreme Court rulings about the First Amendment at school (Tinker v. Des Moinesand Hazelwood v. Kuhlmeier, to name the two most impactful) the publication’s forum status,   whether the publication is “school-sponsored,” but also on individual state laws, which may expand students’ rights beyond the restrictive Hazelwood standard and return them to the less restrained Tinker standard.

The first free speech law that extends these protections to private high schools was California’s Leonard Law, though the statute does not apply to schools controlled by religious organizations. Rhode Island also recently passed a law protecting public and private school journalists.

Private schools across the country can and should follow these examples to enact free speech policies for their students to allow them the same freedoms as their public school counterparts.

Having a free student press advised by a qualified journalism educator creates informed, responsible students who understand the role of a free press in a democracy. If we want citizens who think critically and participate in the democratic process, we must model this in both public and private high school.

Resources:

Top 10 High School FAQs, SPLC

Summary of Tinker v. Des Moinesand Hazelwood v. Kuhlmeier, SPLC

The SPLC First Amendment rights diagram(for public schools), SPLC

SPLC law library, SPLC

California student free expression law(example of a state free speech law that extends the free rights rights of students beyond federal First Amendment rulings), SPLC

California Leonard Law (high school)(protects non-religious private schools in California), SPLC

JEA statements, JEA

 

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