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The Constitution vs. the Consultants

Who really makes the rules for the high school press corps

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Hazelwood v. Kuhlmeier, the landmark Supreme Court case that back in 1988 showed the nation's high school administrators a way to rein in frisky student editors, began with a principal pulling a story about teen pregnancy. The topic's an evergreen: just last month, Stevenson High School in Lincolnshire made headlines when administrators rejected stories on teen pregnancy, teen drinking, and shoplifting. I haven't seen the stories, but Frank LoMonte, executive director of the Student Press Law Center in Virginia, has. "It's rock-solid work," he says. "The stories are very balanced and if anything, they're on the tame side. The story about teen pregnancy in particular could have been written by Bristol Palin with Sarah Palin's approval. It's the story of a teenage girl who becomes pregnant by her high school boyfriend and does what I think everybody in society considers the admirable thing. She keeps the baby and marries the father."

There are subjects, I observed to educator H.L. Hall, guaranteed to yank a principal's chain.

"Sex is obviously one," said Hall. Illicit substances, of course, are another. "For some reason," Hall mused, "they just don't want the community to think their kids are involved in anything that might be illegal. I don't understand that line of thinking. There's not a school around where teenagers won't be teenagers."

But though you and I know that, parents only know that about every high school except their own, and few school papers are encouraged to remind them. "Parents, of course, think their kids can't do anything wrong and they're shocked to find out that's not the case," said Hall. "And they'd rather not think about it anyway."

Hall's past president of the Journalism Education Association, and from 1973 to 1999 he was the journalism program's faculty adviser at my alma mater, Kirkwood High School, a public school in suburban Saint Louis. With some delight he recalled the year when so-called open parties, hosted by kids whose parents were out of town, become so notorious the local police chief and superintendent of schools joined in an appeal to parents to do something about it. Of course the school paper covered the story—and so did the yearbook.

At Stevenson High, the latest uproar smacks of deja vu. A Tribune editorial supporting the student journalists there recalled that a January issue of the Statesman, the school paper, carried a report on teen dating that the administration called "irresponsible" and LoMonte "constructively provocative." That incident led administrators to put a "prior review" panel in place to vet articles before publication; in response, faculty adviser Barbara Thill resigned the position.

What don't administrators get about a free press? "One thing that's highly sublime—I guess ironic—is that every school system in the country is going to have a mission statement that says one of its top goals is to build better citizens and teach them about democracy," says John Bowen, an adjunct instructor at Kent State University and past board president of the Student Press Law Center who chairs the JEA's scholastic press rights commission. "And they turn around and censor at the drop of a hat."

Curious to see what, if anything, it had to say about student publications and the First Amendment, I poked around the Web site of the National Association of Secondary School Principals. The legal advice I came across there is terse and utilitarian, and it's limited to matters more cosmic than the school paper. "Parents have very little authority to determine a school's curriculum," so parental challenges almost always fail in court, the principals are told. The banning of books is a "headline grabbing decision," but the consensus of most courts is that "schools can ban any books they choose as long as they follow their clearly established policies." A caveat: "Schools have been successfully challenged in the evolution arena." So tread gingerly with intelligent design.

Bowen's view is that when it comes to school papers, most administrators are out of their depth and do what they're told—by school board lawyers and by consultants who specialize in helping school districts create policy manuals. He says these consultants advise schools to keep student publications on a short leash. Why go looking for trouble?

One of the biggest of the consulting firms is NEOLA, originally the Northeast Ohio Learning Association, which now services close to 1,000 school districts in seven states, including Illinois. NEOLA warrants its legal advice: follow its "templates" and if you're sued NEOLA will back you up in court.

Earlier this year, NEOLA withdrew its old template on student publications. The new template, two years in development and drawn up in consultation with Kent State and with an eye to evolving law, gives school administrators four options. They're outlined in an hour-long PowerPoint presentation NEOLA has posted on its Web site. Bowen suggested I watch it. (It's viewable at www.neola.com/may_13_webinar.wmv.)

NEOLA president Richard Clapp kicks off the session by explaining that the previous template was more than 20 years old and in the eyes of the Student Press Law Center called for censorship of student media. "Their word 'censorship,'" he says. "We like to talk about prior review and, if necessary, restraint. Same concept, I guess."

Then three attorneys take turns explaining the new template's benefits: "Through policy revision, NEOLA believes litigation can be avoided as well as the often negative media exposure that accompanies these legal challenges. Simply stated, the media loves to cover cases about prior restraint and limitations on student speech."

A "key concept": "The constitution applies in the school house." Another key concept: "Students have rights—but they may be restricted if done properly."

The attorneys review the case law: Hazelwood established that schools can exercise firm control in a "nonpublic forum as long as those actions are reasonably related to legitimate pedagogical concerns." But vigilance is necessary if nonpublic status is to be maintained. The school paper must be produced as part of the curriculum. The adviser must be on the faculty; the students must receive grades and academic credit. The adviser or principal must review each issue before publication.

And what are legitimate pedagogical concerns? That the school paper respect privacy issues, says NEOLA; that it avoid content "unsuitable for immature audiences," strive for fairness and balance, and value sound research and good grammar. Furthermore, "pedagogical concerns are not limited to the 'academic' arena and include discipline, courtesy and respect for authority."

A word of warning: "Many times the adviser quite frankly is the one who's fomenting the revolution as opposed to quelling it, so it ends up being the administrator who's reversing what the adviser's already done."

The first of the four options is to run student publications as nonpublic forums, with Hazelwood as their watchword. Among the advantages, you maintain curriculum focus and consistency: "If you're teaching teen sex is not a good thing, your paper won't contradict that." You "minimize controversy" by avoiding "hot topics." A primary disadvantage is the "significant time commitment" demanded of administrators and teachers. (Papers don't prior-review themselves.)

The second option is the limited public forum, which offers students some editorial freedom "within carefully prescribed limits." A school running its student paper as a limited public forum is still able to protect itself against the "most egregious misuse/abuse of forum" ("You're not going to get some of the worst of the offenses that free speech can often incur," says one attorney), yet it "introduces concepts of free speech." But the burden of prior review must still be borne, and when "controversial topics" creep into print, as they will, they can be "difficult to explain to dedicated public interest groups who oppose publication."

Bowen told me most school administrators chose one of the first two options. (NEOLA director of legal research Amanda Clapp, daughter of Richard, tells me it's too soon to say.) But there are two others, called "limited public forum—light" and "limited public forum—almost open." To different degrees, both offer administrators the freedom of skipping prior review and limit their legal liability (it's the kids' paper, not the school's) while opening the students' work to a "broader range of competitions" (it's neat to win prizes). The disadvantages? Lack of control, obviously. Students "may not act responsibly"—here a lawyer interjects, "That's the definition of a teenager as far as I'm concerned"—yet escape punishment. And backlash from the community and special interest groups could get really grim: "Students, staff, Board members may be targeted."

As the presentation draws to a close, the audience is offered "real life scenarios" to consider at a school where public forum notions are allowed to take root. "What if the drama club decides to stage: Rent (gay/lesbian themes) / Hair (drugs/nudity) / Vagina Monologues (sexuality)?

"What if the HS newspaper decides to publish a story on the superintendent's extramarital affair?" A lawyer adds, "If it happens to be with a student it becomes even more interesting."

Nowhere in the presentation, under "advantages" or anywhere else, is the idea raised that the First Amendment might make a splendid cornerstone of a high school curriculum. Nor is there a nod to the 2005 Knight Foundation study that found a widespread failure of high schools to teach the First Amendment to students or the students to appreciate it. The presentation seems to me to find NEOLA utterly realistic about who its clients are: put-upon educators who already catch a lot of flak from all sides and aren't interested in more, men and women for whom the choice between a nonpublic forum and a public forum is shaped by practicalities. What matters most is to keep the lid on things at school, and a principal tempted to drop prior review is probably thinking less about First Amendment principles than about how to get done everything there is to do and still get home in time for dinner.

Find this column and more media coverage at chicagoreader.com/media.

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