When the U.S. Supreme Court ruled in Tinker v. Des Moines School District in 1969 that students do not shed their right to free speech at the schoolhouse gate, it seemed that the issue was settled once and for all. But that was not the case in the Lodi Unified School District when the Bear Creek High School newspaper published an article about a student who made pornographic videos (“Writing About Teenager Who Makes Sex Videos, School Paper Becomes the News,” The New York Times, May 4).
The district demanded that the article be turned over for review before appearing online or in print, claiming that the piece might violate a state rule prohibiting anything featuring “obscenity, defamation and incitement.” Only after the newspaper’s faculty adviser and the student who wrote the piece retained a lawyer did the district finally relent.
What is disturbing is the hypocrisy of school officials who say they want to develop critical thinking skills in students and yet refuse to treat students accordingly. It’s little wonder that high school students rebel. Adding to the controversy is the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier in 1988. In a 5-3 ruling, the high court held that school administrators can exercise prior restraint of school-sponsored expression, including newspapers. If that is so, then the ruling makes a mockery of its decision in the Tinker case.
I can understand if the article in the present case disrupted learning or was libelous. But it clearly was neither. Nevertheless, the district tried to block publication on the grounds that it had a duty to protect young students from harmful content. But how would these students be harmed? They are regularly exposed to images that go far beyond what the article described. I wouldn’t want to be the adviser for a high school newspaper in the present climate. It’s a thankless job.
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theedhed.com 
The fundamental and difficult-to-reconcile problem is the dual nature of the public school. The public school is a part of the state govt but it’s function — education — is not a core governmental function + treating a public school as a state govt for Bill-of-Rights purposes would literally make it impossible for the public school to perform it’s education function.
The Bill of Rights — including the First Amendment free speech rights — are pretty much aimed at limiting the govt when the govt is exercising its governmental police powers, particularly the govt’s power to arrest, detain, and silence citizens. Doubt that the Framers intended the First Amendment free speech rights to apply when the govt was performing something other than police powers.
When the govt is operating a public school, the govt is functioning more as a business providing a service and less as a govt exercising its police powers. Of course, just like any business providing a service, the govt when it’s operating a public school has to establish and enforce rules governing how employees and customers will behave. If the govt were subject to the Bill of Rights when it operated a public school, the public school could not establish and enforce rules governing how teachers and students behave; each class would literally be subject to the whims of each teacher and each student. The teachers could teach whatever they wanted (including whatever subject they wanted to teach) or teach nothing. The students could attend or not; do their assignments or not; speak out whenever they wanted to about whatever subject they wanted to address (or do nothing/say nothing at all).
Obviously, applying the Bill of Rights to the govt operating a public school was not what the Framers intended.
But, courts really want to protect free speech. So, courts will strain to find a way to apply some aspects of the First Amendment, at least, to the govt’s operation of a public school. The result is an intellectually sloppy test like Tinker that requires a balancing of the student’s free speech rights with the school’s interests in operating an effective/safe learning environment. In my opinion, the better approach would have been to recognize that the First Amendment does not apply to govt functions such as schools where the govt is not performing its police functions.
Of course, the public-school-newspaper cases are particularly attractive for courts looking to apply the First Amendment to a public school situation. The school newspaper is, by definition, a newspaper and therefore at a gut level it looks like it deserves strong First Amendment protection. But, it is a school newspaper and its primary purpose is to further the school’s education function. Therefore, the school newspaper, like a teacher’s decision to teach math rather than history to his third-period class, should not enjoy First Amendment protection.
Of course, a school system can — and usually should — give student newspapers maximum freedom to print whatever they want. But, that is — or at least should be — a school policy decision rather than a First-Amendment-mandated decision.
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Labor Lawyer: I’m not a lawyer so I read the Tinker decision as affirmation of the rights of students to exercise free speech on school grounds. That’s why I was confused by the Hazelwood decision. It seems to contradict Tinker. In the final analysis, however, school officials will continue to exert final control over everything that takes place on campus.
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The school system is the publisher of a student newspaper. Therefore, the school system would be liable for any libel published in the student newspaper as well as any other civil claims filed by people aggrieved by what was published. This prospect alone argues strongly for the principal to have a constitutional right to censor the student newspaper — like the Washington Post publisher having a right to censor what appears in the Washington Post. In other words, the govt is acting as a publisher, not as a govt, when the school publishes a newspaper and therefore the govt should not be subject to the First Amendment when it is acting as a publisher.
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Labor Lawyer: Thanks for this important information. So I guess the Tinker ruling is way too broad.
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