Overheads

• Students & First Amendment
• SCHOOL-SPONSORED STUDENT PRESS
• Alternative or Underground (Unofficial) Student Publications
• Structures for Student Newspapers

Students' Limited First Amendment Protection:

TINKER V. DES MOINES SCH. DST (1969)

• STUDENTS IN PUBLIC SCHOOLS DO NOT "SHED THEIR CONSTITUTIONAL RIGHTS TO FREEDOM OF SPEECH AT THE SCHOOL HOUSE GATE" BUT SCHOOL OFFICIALS HAVE "COMPREHENSIVE AUTHORITY...TO PRESCRIBE AND CONTROL CONDUCT IN THE SCHOOLS."
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• SCHOOL AUTHORITIES HAVE THE POWER TO BAN/PUNISH SPEECH THAT "MATERIALLY AND SUBSTANTIALLY INTERFERE[S] WITH REQUIREMENTS OF APPROPRIATE DISCIPLINE IN THE OPERATION OF THE SCHOOL" OR SPEECH WHICH OFFICIALS FORECAST WILL HAVE SUCH AN EFFECT. [TINKER]

HAZELWOOD V. KUHLMEIER(1988)

• "FIRST AMENDMENT RIGHTS OF STUDENTS ARE NOT AUTOMATICALLY COEXTENSIVE WITH THE RIGHTS OF ADULTS...[THEY] MUST BE APPLIED IN LIGHT OF THE SPECIAL CHARACTERISTICS OF THE SCHOOL ENVIRONMENT."
  
• "A SCHOOL NEED NOT TOLERATE STUDENT SPEECH THAT IS INCONSISTANT WITH ITS BASIC EDUCATIONAL MISSON, EVEN THOUGH THE GOVERNMENT COULD NOT CENSOR SIMILAR SPEECH OUTSIDE THE SCHOOL."

BETHEL SCH. DST. V FRASER (1986)

• THE FIRST AMENDMENT DOES NOT BAR SCHOOL DISTRICTS FROM PROHIBITING AND PUNISHING THE USE OF"VULGAR SPEECH AND LEWD CONDUCT"

HAZELWOOD SCH. DST. V KUHLMEIER (1988)

• A SCHOOL NEWSPAPER IS A PUBLIC FORUM ONLY IF SCHOOL AUTHORITIES HAVE "BY POLICY OR PRACTICE OPENED THE FACILITIES FOR INDISCRIMINATE USE BY THE GENERAL PUBLIC, OR BY SOME SEGMENT OF THE PUBLIC , SUCH AS STUDENT ORGANIZATIONS."
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• A "SCHOOL MAY REFUSE TO LEND ITS NAME AND RESOURCES TO THE DISSEMINATION OF STUDENT EXPRESION" IF AUTHORITIES BELIEVE THE EXPRESSION IS "INCONSISTANT WITH THE SCHOOL'S BASIC EDUCATIONAL MISSION ."
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• THE COURT FOUND THAT IN THIS CASE, THE SCHOOL PRINCIPAL ACTED REASONABLY IN CENSORING ARTICLES DEALING WITH DIVORCE AND TEENAGE PREGNANCY.
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  Alternative or Underground (Unofficial) Student Publications
• Burch v. Barker, 861 F. 2d 1149 (9th Cir. 1988) Schools may not have a blanket pre-distribution review policy based on an "undifferentiated fear" that unofficial student publications might cause a disruption of the orderly operation of the school or cause harm to students; However, a narrowly drawn policy requiring review for specific identified content might be constitutional.
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• Also see, BARCIK v. KUBIACZYK, 321 Ore. 174; 895 P.2d 765; 1995 Ore. LEXIS 42 (Or. 1995) Challenge to prior review policy for unofficial newspapers in Oregon school district.
  

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  Structures for Student Newspapers

  Student Activity

  • No prior review.
  • Governing Structure Determined By School Policy.
  • Public Forum (non-legal definition).
  • Funding (student government and advertising).
  • Credit may be available, but not a class.
  • Stipend may be paid.
  • Advisor with specifically defined advising, not editorial, role.

  Lab or Practicum

  • Prior Review is permissible for educational purposes.
  • Scheduled classes in journalism program or sequence.
  • Faculty staffed.
  • Limited (if any) circulation.
  • Stipend generally not provided.

  Auxiliary Enterprise (Quasi-Independent)

  • No prior review.
  • Corporate structure.
  • Publication Board as defined in incorporating documents.
  • College affiliation, but insulated by structure.

  Independent

  • No prior review.
  • Free standing corporation.
  • Private (i.e. no direct school) funding.

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  Law Review - Speech in Schools
  
  Curtis Anderson. "Planned Parenthood v. Clark County School District: "Having Your Cake and Eating It Too" in Public School Free Speech Cases," 1993 B.Y.U.L. Rev. 983 (1993)
  
  Richard L. Roe. " Valuing Student Speech: Work of the Schools as Conceptual Development., 79 Calif. L. Rev. 1271 (1991)
  
  GREG C. TENHOFF CENSORING THE PUBLIC UNIVERSITY STUDENT PRESS: A CONSTITUTIONAL CHALLENGE . 64 S. Cal. L. Rev. 511, (1991)
  
  Rosemary C. Salomone Free Speech and School Governance in the Wake of Hazelwood, 26 Ga. L. Rev. 253 (1992)
  
  RECENT CASE: FIRST AMENDMENT-- FREEDOM OF SPEECH -- SCHOOL DISTRICT MAY EXCLUDE ADVERTISEMENT FROM SCHOOL NEWSPAPERS. 105 Harv. L. Rev. 597 (1991)
  
  David S. Day The End of the Public Forum Doctrine 78 Iowa L. Rev. 143 (1992)
  
  Helene Bryks A LESSON IN SCHOOL CENSORSHIP: HAZELWOOD V. KUHLMEIER., 55 Brooklyn L. Rev. 291 (1989)
  
  BRUCE C. HAFEN HAZELWOOD SCHOOL DISTRICT AND THE ROLE OF FIRST AMENDMENT INSTITUTIONS, 1988 Duke L.J. 685 (1988)
  
  J. MARC ABRAMS, S. MARK GOODMAN, WILLIAM R. MUREIKO, "END OF AN ERA? THE DECLINE OF STUDENTPRESS RIGHTS IN THE WAKE OF HAZELWOOD SCHOOL DISTRICT V. KUHLMEIER., 1988 Duke L.J. 706 (1988)
  
  William G. Buss School Newspapers, Public Forum, and the First Amendment, 74 Iowa L. Rev. 505 (1989)
  
  DINITA L. JAMES, "THE SCHOOL AS PUBLISHER:HAZELWOOD SCHOOL DISTRICT V. KUHLMEIER.," 67 N.C.L. Rev. 503 (1989)
  
  SURVEY: School's Restriction on Student's Expressional Freedom in School Publication Must Bear Reasonable Nexus to School's Legitimate Pedagogical Policy - Desilets v. Clearview Regional Bd. of Educ., 137 N.J. 585, 647 A.2d 150 (1994). , 25 Seton Hall L. Rev. 827 (1994)
  
  PAUL D. MURPHY , "RESTRICTING GANG CLOTHING IN PUBLIC SCHOOLS: DOES A DRESS CODE VIOLATE A STUDENT'S RIGHT OF FREE EXPRESSION?," 64 S. Cal. L. Rev (1991).
  
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