It's been obvious for years to advocates of scholastic press freedom that more than legal reasoning and court rulings are needed to comfortably (or confidently) defend the free expression rights of high school students today. To make freedom more than an abstract concept in a social studies class, students-especially student journalists-must embrace ethics as a requisite legal defense tool.
More than 40 years after the U. S. Supreme Court acknowledged that students have First Amendment protection in public schools, high school students are finding their free-speech rights being whittled away. The strong judicial language of this 1969 ruling upheld the right to peacefully wear black armbands to school, but three subsequent Supreme Court cases and a plethora of lower-court decisions have reduced Tinker's free-speech message to a skeleton of dangling exceptions that make freedom of speech a textbook topic barely discernible in students' lives while in school.
School officials have more comfortably asserted the authority courts have accorded them in recent years. As administrators more often reach beyond school boundaries to punish students for Facebook postings and other social-media escapades, the free-speech chill also affects student journalists. The message is obvious: Student press freedom today is tied tighter than ever to ethical expression-should-or-shouldn't speech that, for want of established guide-lines and standards in most schools, is left to the discretion of school officials.
This is not new in our public schools, but it's moved beyond being a teaching paradigm-it is now taking root as a judicial mandate. There was an ethical overtone to Justice Fortas's opinion for the Court in Tinker. Although it uses free-speech rhetoric, the Court admonished that students were not free to substantially disrupt the educational process or infringe on the rights of others. But the legal parameters were clear: Public-school officials (as "government") were obligated to justify speech restrictions, demonstrating disruption or infringement. That's what the Court said, at least. In reality, school officials were slow to sacrifice their authority and power.
Just as school officials were learning to resist the temptation to censor student expression they didn't like or agree with, the U. S. Supreme Court issued the first of three rulings that began to lift that burden from administrators and shift it to students. This new trend was toward making students (including student journalists) justify their ideas and expression as "responsible" (i.e., "ethical"). The High Court has implied that students who assertively practice ethical, responsible journalism would have a legal defense to counter any reason an administrator would claim justifies restricting student expression.
Yet school officials do have Court-sanctioned discretion. In 1986, the High Court said in Bethel School Dist. v. Fraser that a student could be punished for expression, in a school-sponsored context, that reflected values inconsistent with those of the school. (Here, Matt Fraser's six-sentence campaign speech during a school assembly included sexual innuendo that offended some teachers and led to a school suspension.) Two years later, in Hazelwood School Dist. v. Kuhlmeier, the principal won support for censoring two student newspaper stories-one about teenage pregnancy, the other about the impact of divorce on students. Once again, the Court did not use the narrow legal criterion of "substantial disruption," but a broader one, with ethical overtones: Was censorship of this content, in a school-sponsored forum, "reasonably related to legitimate pedagogical concerns." The Court said "Yes." And nine years later, it deferred once more to school officials in Morse v. Frederick, ruling that a student could be suspended for displaying a "Bong Hits 4 Jesus" banner as the Olympic Torch Relay passed by on a road adjacent to his high school. Permitting the message could reasonably imply that school officials were condoning illegal drug use, the Court said, adding that authorities had a duty to safeguard students from a message that just might be deciphered as irresponsible.
The Supreme Court has not overturned the Tinker ruling that students have constitutional rights in school, but for the past 24 years, both the Supreme Court and lower courts have reminded students that they have an implied ethical responsibility. They better be able to justify the value of their speech if they want the freedom to express themselves. And the most recent research shows that lower courts- in increasing numbers-are marginalizing Tinker's traditional free-speech defenses. Dan Kozlowski of Saint Louis University, after reviewing lower- court decisions from the last five years, reported finding "a hands-off judiciary that all-too-willingly defers to school officials' actions." Kozlowski says that lower courts are not only diluting the more precise and restrictive Tinker definition of "substantial disruption," but are letting administrators reach beyond school boundaries and school-sponsored context.
If Tinker has lost some of its resonance in the courtroom today, it clearly remains as the ideological foundation of a free student press. That can provide an invaluable "values" foundation for ethics protocols or student press guidelines. It is that civics message that the U. S. Supreme Court has refused to abandon for the past decades. As such, it provides a solid cornerstone for free speech strategies.
This is what occurred last February, when more than 50 stakeholders in the struggle for student press freedom met in Illinois to develop a strategy for ethical decision-making. The students, teachers, administrators, school board members, professional journalists and attorneys spent two days fashioning a 78-page booklet entitled Protocol For Free & Responsible Student News Media. It is a multi-purpose ethics instrument, a teaching/advising tool for scholastic journalism that also can serve as a legal-defense blueprint.
It's no surprise that these student-speech proponents began their work by citing Tinker and the civics message at its roots. If the courts are erasing boundaries and allowing school officials to set the rules that all but define and mandate responsible expression, it's essential that student journalists, their teachers and others committed to educating civic-minded citizens step up. Scholastic journalism needs ethical-decision-making models to help students and teachers negotiate for the freedoms that high school students are expected to embrace and exercise once they're adults-or leave high school.
Adults, we know, are not required to speak responsibly (i.e., ethically) as a condition of expressing themselves. Nor are professional journalists bound to publish only "responsible" content. As the High Court said in Miami Herald Publishing Co. v. Tornillo, "a responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues cannot be legislated."
Because our social institutions offer many reasons for distinguishing the rights/responsibilities of minors and adults, it can be hard for students to argue that their ethical behavior justifies according them the constitutional rights of adults. But the Supreme Court has acknowledged that students can exercise constitutionally protected speech. And we have one good example of a lower court that rewarded students with a court victory based on solid student journalism, grounded in ethical values and behavior.
In the case of Dean v. Utica Community Schools, a federal judge used the quality of students' investigative reporting of a school issue as a legal justification for restricting administrative censorship. School officials wouldn't cooperate and then censored the story about a lawsuit against the school district. Judge Arthur Tarnow described in detail how the quality of journalism practiced by the staff of the Utica Arrow made it impossible for school officials to successfully argue that the newspaper's content was inconsistent with the school's educational goals. Components of responsible journalism, reflected both in ethics codes for the professional press and those for the student press, can be useful to counter many reasons school officials offer to justify suppression of student expression.
In these times of pervasive social media, it's tough for student journalists to avoid the ripple effects of administrative heavy-handedness. But the principles and values, the guiding philosophy and procedures that are part of the journalists' ethical-decision-making process must come from thoughtful, forthright students. They must proactively codify standards they can embrace, not wait for a string of "Thou Shalt Not" restrictions school officials impose, complete with threat of punishment. Student journalists who seriously meet this challenge are in the best position to distinguish themselves from their spontaneously explosive classmates whose individual postings or outbursts verbally assault or anger school officials.
Student journalists who thoughtfully develop and adopt an ethics protocol, clearly and confidently share those standards and practices with the many audiences of the student media, and help everyone understand how and why they do what they do are taking the practical, yet essential, steps needed today to ensure the respect of school officials, teachers and students-and the freedom that comes with this confidence in them.
If we deny them the right to perform as journalists should, it's not realistic, or fair, to expect these students to embrace the values we would want them to aspire to as professionals. High school journalism provides one of the best tools educators have for preparing active citizens. But that tool becomes useless when taken from students. When the courts tell administrators they can dictate some conditions for critical-thinking by student journalists, and require "responsible journalism" as a condition of press freedom, it becomes obvious that ethics must sit side-by-side with students striving to practice serious journalism. And to become part of their legal-defense arsenal when forced to fight for their ideas and the right to express them.