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Bear Creek controversy underscores need for more legal undestanding

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Posted: Wednesday, February 13, 2013 12:00 am

Recently, Bear Creek High School student journalists were surprised to discover that their principal had confiscated the latest campus newspaper. She apparently did not approve of an article which suggested that some campus safety procedures might be inadequate.

The problem of school-directed censorship is not unique to Lodi Unified School District, but can be seen throughout the country. There are even legal groups — such as the Student Press Law Center, the American Civil Liberties Union and the First Amendment Center — that aid students when free speech and press rights are violated.

School administrators can be caught in the heat of this Constitutional battle. One of the problems is their conflict between fears of criticism by parents and supervisors vs. student rights. There is also the "what if?" factor: "What if something goes wrong based on my decision?"

This column is not to be construed as legal advice, but rather a presentation of information that could shed light on the subject. Here are two major U.S. Supreme Court decisions to be considered:

  • Tinker v. Des Moines School District: This 1969 Supreme Court case dealt with the rights of student free speech. It's taught as a "landmark" for student rights in all Constitutional law school classes. The court held that First Amendment rights did not stop at the schoolhouse door.

The decision applied to public educational institutions. It left an opening for private schools, but a state constitution, statute or policy could provide these students with the same rights as public schools. California is one of those states.

  • Hazelwood v. Kuhlmeier: In 1988, the U.S. Supreme Court gave school administrators more authority to deal with school-sponsored student publications. While the Eighth Circuit Court had ruled student First Amendment rights were violated by their administration, a subsequent appeal to the highest court held otherwise.

In this case, five out of eight justices ruled against the students. However, their decision did require school officials to justify a "reasonable person" standard in order to invoke censorship.

California state laws make Hazelwood more difficult to apply. Reasons for censorship in this state can include libel (written), slander (speech), "obscenity," encouragement of unlawful acts, violation of school regulations, and the "substantial" disruption of school operations (Education Code Section 48907).

"Substantial" is a relatively high legal standard. In reference to the Bear Creek case, it is unlikely that a story on minor weaknesses in a school safety plan would meet this criterion. Speculation suggests that this is why the school district's legal team probably recommended a reversal of the principal's decision to withhold the student newspaper. Most likely, mainstream press exposure invoked the "what if?" factor as well.

Although not necessarily applicable in California, other state courts have tended to rule in favor of First Amendment principles when content conflicts arise with student publications.

Press reports may tend to make principals and other school officials look indecisive. But it is clear that even the highest court in the land can be conflicted over this issue as well.

It's important to note that the vast majority of school administrators have little or no legal training. Thus, without seeking legal consultation, they may place themselves or their districts in jeopardy for civil rights complaints in a number of areas.

Trying to balance the Constitutional rights of the school and student can be difficult. The lack of legal education by school administrators in these areas is troublesome. Much of their dealings on a daily basis involves potential problems that could lead to unfortunate consequences.

Steve Hansen is a Lodi writer.

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  • Michael Arms posted at 10:08 am on Wed, Feb 13, 2013.

    Mike Arms Posts: 7

    PS: my experience in school law courses was that many found the switch from educational thinking to legal thinking difficult. What may make sense in an educational sense didn't always jive with the law. Educators in those classes also seemed to struggle with separation of issues. As you argue, legal education is important these days.

  • Michael Arms posted at 8:28 am on Wed, Feb 13, 2013.

    Mike Arms Posts: 7

    Great editorial Steve. I earned an administrative certificate in Oregon, and there were 5 required school law courses. Tinker was emphasized.


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