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What to tell an administrator who seeks prior review

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The Porn-worker and Bear Creek High School

by Jan Ewell, MJE

The district administration of the Lodi Unified School District demanded prior review of a story the paper was writing about an 18-year old student, estranged from her parents, who was working in the porn industry while finishing her senior year. 

The adviser, Cathi Duffel, and her principal both refused, though they submitted the article to an independent attorney to check for slander or obscenity, two of the exceptions to California’s Education Code, which otherwise grants editorial control to the students. 

The administration threatened the veteran teacher’s job and accused her of insubordination. Both sides engaged lawyers, with Matthew Cate providing support pro bono (for the good) to Duffel and the student editor, Bailey Kirkeby.

This is the core of what I wrote to the school board and the superintendent of the district:

Dear School Board Member,

I am writing because I feel you have been ill advised in the last month concerning the district’s relation to the student press.

Indeed, the Bear Creek High School principal and journalism adviser have taken steps that protect you and the school district, while it appears other administrators would have exposed you to legal risk.

Let me explain. Under California Education Code 48907 (d), prior restraint of the student press, except in cases of libel, obscenity, or a “substantial disruption of the orderly operation of the school” is illegal. Obscenity, libel, and “substantial disruption” have been carefully defined in multiple legal cases.  

If the principal or the adviser had given the administration a copy of the article in question, which contains neither slander nor obscenity, the administration would have two choices: 

One,to prohibit publication, thereby breaking the law; 48907 (d) states “there shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of pupil expression under this section.” (Ed Code 48907 (d))  

This would not be a desirable situation for your school district.

Two, to approve publication, thereby potentially taking on the liability for the content of the student publication. Three interesting cases, which provide legal precedents to which California judges might look, should be of interest to you.

Sisley v. Seattle School District (2011) Landlord High Sisley sued the Seattle School District Number One because the student paper accurately reported he had “acquired 48 housing and building maintenance code violations, and . . .  also been accused of racist renting policies” in houses adjacent to the school. He claimed defamation of character, that is, libel. 

The Washington state superior court judge ruled in favor of the school district, which had both a policy and a practice of student control of the student media.  He wrote “a public school student is not an agent or employee of the school district.” Also, “the public school district is a governmental entity constitutionally prohibited from censoring or otherwise curtailing a student’s First Amendment right to free speech unless there is evidence censorship is necessary to prevent disruption of the school environment. No such evidence exist.” 

I do not know how the judge would have ruled if school administrators had generally or sporadically approved stories.

Yeo v. Lexington (1997) Douglas Yeo submitted an advertisement to the yearbook of Lexington High School advocating sexual abstinence amid a heated debate with the school board over its position in this matter.

The yearbook had a policy against accepting political ads and so returned his money. 

Yeo sued the school district, claiming his First and Fourteenth Amendment (due process) rights were being violated. The U.S. Court of Appeals for the First Circuit ruled that student journalists are not government agents. Since only the government is in a position to violate the First Amendment or the Fourteenth, there was no suppression of Yeo’s rights.

Furthermore, the court ruled that the school district was not responsible for the students’ decisions.  “As a matter of law, we see no legal duty here on the part of school administrators to control the content of the editorial judgments of student editors of publication.”

Under Massachusetts law, as in California, students control the content of the student publications.  At Lexington High School, the policy and practice was for the students to make editorial decisions.  School officials were not responsible for those decisions. The district was protected from judgment in the suit because the students controlled the student media.

Douglass v.Londonderry School District (2005) The yearbook staff at Londonderry High School in New Hampshire voted against running the photograph Blake Douglass submitted as his senior picture, though they did offer to include it in the community sports section.  The photograph showed him kneeling, a broken (open) shotgun across his shoulder, dressed in trap shooting clothing. Shotgun shells appeared to be in his pocket.  

Douglass and his father sued the school district, claiming his First Amendment rights were being violated.  He also claimed the school was using “unconstitutional viewpoint discrimination” by refusing to run a picture of him with his shotgun.  Douglass claimed the school could not “lawfully refuse to publish [the photograph] because they disapproved of the ‘message’ they think the readers will take from it.”

The federal judge disagreed.  It was not the school district that rejected the photo.  It was the student yearbook editors.  “The state has not, it seems, suppressed Blake’s speech. His fellow students have done so,” the judge wrote.  “The First Amendment does not restrict the conduct of private citizens, nor is violated when one private actor ‘suppresses’ the speech of another.”

Conversely, there is no case law that indicates the school district is responsible for the protected speech of the students when the students control the content.

Your journalism adviser and her principal have acted in the best interest of your district in maintaining the student’s editorial ownership of the student press and by refusing to submit the paper to you for prior review.  You should be very grateful to them.

California’s principle student press law, Education Code 48907 fits on one page and is neither complicated nor arcane.  I refer here to section c: 

Student editors of official school publications shall be responsible for assigning and editing the news, editorial, and feature content of their publications subject to the limitations of this section. However, it shall be the responsibility of a journalism adviser or advisers of student publications within each school to supervise the production of the student staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section. 

Students do not always see things in the same way as adults.  Indeed, not all adult see things the same way. But, as Supreme Court Justice Robert H. Jackson wrote in the 1943 Barnette case: “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

You have in place at Bear Creek High School the two best possible safeguards of the students’ minds and the school district’s finances and reputation: a skilled, knowledgeable, and committed journalism teacher and a well-informed principal. 

As you see in the second half of section c, above, the adviser is tasked with ensuring there is no slander or obscenity. She in turn works with a wise principal, who understands the law, the students’ rights, and appropriate supervision of staff and students.  The principal does not coach every baseball player nor take every at bat. More importantly for the well-being of the school district, she does not take editorial control of the student press.

I am surprised that any other level of administration would sweep aside these two well-informed professionals to take upon themselves their responsibilities, especially since administration does not seem to be well-informed concerning the relevant education codes.

I would like to make three other points of significance: 

 California is not under the Hazelwood ruling, as your attorney seems to think.  We are a Tinker state; 48907 predates the Hazelwood ruling and Hazelwood has no bearing here. The Tinker standard is expressed in 48907.

Your own board policies state “A school newspaper is a medium for publishing the news, a public forum for discussing current events of interest to the students. The Bruin’s Voice’s forum-status (a public forum) is important; it means it is not the voice of the administration, rather the students.  

Section g of 48907, the newest amendment to the section states:

An employeeshall not be dismissed, suspended, discipline, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment of the United States Constitution, or Section 2 of Article I of the California Constitution.

The law was written to protect advisers; as yet there is no case law extending it to principals, but they seems to be included when it states, “An employeeshall not be dismissed, etc.”

I want to share two other concerns:

One, when I read of this story, I immediately wondered, “Who is helping this at-risk student to finish her education?” A diploma is key to enlarge her range of choices in the future.

Two, I wondered what programs the Lodi Unified School District has in place to support other students who are prematurely emancipated. I doubt this young woman is unique. Surely the LUSD’s energy should be spent developing protocols and perhaps programs to help these truly at-risk students, rather than trying to control the story that acknowledges their existence.

Sincerely,

Janet Ewell, MJE

Jan.ewell@verizon.net

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