NSPA

Join NSPA

Discover the benefits of membership in the National Scholastic Press Association.

Not sure if you're a member? Enter publication name below: (Advanced search)


NSPA View

The latest work being done by our member publications. Members: See your work here.

www.flickr.com

Search NSPA


Trends in High School Media

An online publication of the National Scholastic Press Association

Dean v. Utica FAQ
2/1/2005

By Mike Hiestand
Dean v. Utica Community Schools is the single most important legal victory for America's high school student media since the Supreme Court issued its devastating 1988 decision in Hazelwood School District v. Kuhlmeier.

On Oct. 12, 2004, a federal district court judge in Michigan issued a message to America's high school student media that they had been waiting to hear for nearly 17 years: the First Amendment is not dead. The decision, Dean v. Utica Community Schools, is the single most important legal victory for America's high school student media since the Supreme Court issued its devastating 1988 decision in Hazelwood School District v. Kuhlmeier and could represent a significant turning point for student journalists trying to combat the ever-growing incidence of administrative censorship.

What was the case about?
It all started in early 2002 when Katy Dean, then a junior and sports editor for the Arrow, Utica High School's award-winning student newspaper, and fellow staff member Dan Butts learned that their school district in Utica, Mich., was being sued by a husband and wife who alleged that school bus exhaust fumes had contributed to the husband's lung cancer and other illnesses. The couple lived next to the school district's garage and claimed that buses were frequently allowed to idle for extended periods of time resulting in heavy diesel fumes settling into their house and neighborhood.

In researching the story, Dean contacted school district and township officials, who - as the story noted - refused to comment. She also looked at numerous scientific studies, some of which presented conflicting evidence on the carcinogenic effects of exposure to diesel fumes, a fact that she noted in her story.

Journalists and journalism educators who later looked at the story agreed that the story was well researched, well-written and journalistically sound.

Nevertheless, on March 7, 2002, Utica High School Principal Richard Machesky ordered Gloria Olman, the Arrow's veteran adviser, to pull the story, an accompanying editorial and cartoon.

Why was the story censored?
Principal Machesky and other school officials - specifically including Superintendent Joan Sergent - claimed that the story was based on unreliable sources and contained a number of inaccuracies. According to court testimony, Assistant Superintendent Randall Eckhardt also told Machesky that because the school district was involved in litigation it "would be inappropriate for the school district to comment on that."

How did the students respond?
Not wanting to delay distribution of the entire issue, the Arrow staff removed the censored material and sent the paper to the printer with an editorial on censorship. Next to the editorial was a black box with "Censored" stamped in white lettering.

Dean also decided to fight the censorship. A year later - on April 4, 2003 - after school officials had repeatedly refused to reconsider their decision - she filed a lawsuit against the school district in federal court.

Additionally, as part of the censorship battle, the Arrow staff took their case public, garnering wide support at both the state and national level. In fact, a month after school officials censored Dean's article, a local commercial newspaper published it along with an editorial condemning its censorship.

How is this case different from other student censorship cases?
For one thing, there have been very few high school press censorship cases that have actually gone to court since the Supreme Court's Hazelwood decision. Hazelwood significantly narrowed the First Amendment protection available to most public high school student journalists and allowed for greater administrative control over editorial content. While the number of incidents of high school censorship has skyrocketed as a result, students and lawyers - largely because of Hazelwood's vague and seemingly weak limits on administrative censorship - have been hesitant to challenge most censorship in court. While there have been some courtroom victories along the way - most notably in an Ohio case decided two years ago - most cases have really only nibbled around the edges of the Supreme Court decision. This case - more than any other that has gone to court - confronts the limitations of Hazelwood head-on and takes a serious bite out school officials' authority to censor "good" student journalism.

What did the judge say?
After examining the evidence and hearing courtroom testimony, Judge Arthur Tarnow called the school's censorship "indefensible."

First, he found that the Arrow was a limited public forum. To reach that conclusion, the judge examined nine factors to determine the degree of control school officials exercised over the Arrow. Among other things, he noted that students had no practice of submitting content to school officials for prior review nor did the faculty adviser regulate the topics the newspaper covered. In fact, the judge found that during the preceding 25 years, school district officials had never intervened in the editorial process of its student newspapers. He also pointed to language in the district's curriculum guide, course descriptions and the masthead of the Arrow itself as evidence that the newspaper's operations were consistent with that of a limited public forum.

Second, the judge closely examined Dean's article and, using criteria gleaned from Hazelwood - including the article's fairness, proper use of grammar, writing quality, bias, accuracy and quality of research - determined that, in spite of school officials' arguments to the contrary, there was not a "significant disparity in quality between Dean's article in the Arrow and the similar articles in 'professional' newspapers."

The judge also determined that the superintendent censored the article because she disagreed with the viewpoint expressed in the article by the couple suing the school district and that her description of the article as "inaccurate" was simply an attempt to disguise "what is, in substance, a difference of opinion with its content."

Who does the decision help most?
Potentially, just about all public high school student journalists working on school-sponsored media. In fact, the case suggests two avenues for contesting censorship depending on the nature of the student media involved.

"Public Forum" Student Media
First, the judge made clear that Hazelwood's weaker protections do not apply to all public high school student media. There are, the court recognized, two types of school-sponsored student media: so-called "public forum" student media (which includes "limited public forums," such as the Arrow), where student editors have, by policy or practice, been allowed to make their own editorial decisions. And non-public forum student media - or "Hazelwood publications," where school officials have routinely exercised more authority over content. Public forum student media, the judge in Dean affirmed, are protected by the much more protective Tinker standard, which prohibits censorship of otherwise lawful speech except where it would seriously disrupt normal school activities.

While not the first judge to conclude that Hazelwood created this two-tiered system, it is significant to have yet another federal court judge adopt this legal analysis. For those students who can argue that their media organization operates as a public or limited public forum, this decision provides additional armor to shield it from an administrator's red pen.

Non-Public Forum Student Media
While the judge in Dean determined that the Arrow was a limited public forum protected by the highest First Amendment standard for student media, the decision's long term impact may actually be greatest for non-public forum student media.

As discussed above, where student editors have not been allowed to make their own decisions about content and, therefore, cannot argue that they are a public forum, the Hazlewood standard applies. For years, however, too many school officials have assumed that Hazelwood's admittedly broad and vague language gave them an unlimited license to censor. This decision makes clear that is not the case: the Hazelwood standard does have teeth; all student journalists attending a public high school retain important First Amendment rights that school officials ignore at their peril.

In Dean, the judge said that even if he had decided the Arrow was a non-public forum, Utica high school officials still violated the First Amendment because their censorhip would not have met Hazelwood's "reasonable educational justification" standard. Katy Dean's article, the judge found, was so well-researched and so well-written and the administration's reasons for censoring were so weak that the actions of Utica school officials simply did not pass constitutional muster.

Good student journalism, the judge decided, prevails.

Moreover, the court found that based on all of the evidence "there is no reasonable dispute that the defendant's speech regulation in this case was not viewpoint neutral," as required by the First Amendment.

Does this decision overrule Hazelwood?
No. This was a federal district court decision. Hazelwood was a U.S. Supreme Court decision. Federal district courts - the lowest on the federal judicial ladder - are compelled to follow the Supreme Court's lead. That's what this court did. However, the Supreme Court cannot anticipate the facts of every case and rarely does it precisely define all of the legal standards it establishes. For example, in Hazelwood, the Supreme Court required that censorship be "reasonably related to legitimate pedagogical (educational) concerns," yet it gave little guidance as to what such a standard actually meant. The judge in this case said that even if he were to apply the Hazelwood standard to the censorship at Utica High School, he would have decided that school officials had not acted reasonably and had failed to meet it.

What are the limits of this decision?
The good news is that Dean makes clear that the First Amendment can provide significant protection to high school student media, as explained above. Unfortunately, as a district court case - the lowest level of court in the federal judicial system - only schools located in one of the 34 counties in the eastern half of Michigan's lower peninsula, which make up the federal Eastern District of Michigan, where the case was heard, are directly bound by the decision. Still, as one of the only high school student media censorship cases on the books, future judges faced with similar legal disputes are likely to look to this case for guidance in interpreting the scope and applicability of Hazelwood.

What should I do?
The Dean decision provides a road map to high school student media seeking to protect themselves from administrative censorship and confirms much of the advice that groups like the Student Press Law Center have been giving high school student media for years. First, if you can establish your publication as a public forum - do so. Student media that operate by policy or long established practice as a public (or limited public) forum, with students making their own editorial decisions free from administrative interference, are entitled to strong First Amendment protection. Second, even if your publication is not a public forum, this decision makes clear that school administrators must still make their case for censorship. And doing so, the decision indicates, will be much more difficult for school officials when the material they want to cut is journalistically sound. The best defense, in such cases, is a good offense. Conduct thorough research, take good notes, talk to all sides, stick to the facts. Write clearly, simply and well. In short, practice sound journalism. And then be prepared to defend it. As Judge Tarnow said in his ruling:

"[I]f the role of the press in a democratic society is to have any value, all journalists - including student journalists - must be allowed to publish viewpoints contrary to those of state authorities without intervention or censorship by the authorities themselves."

Dean v. Utica Community Schools provides high school student media with a potentially powerful shield. But students have to be able and willing to use it.

Where can I obtain a copy of the decision?
The decision is officially reported at 345 F.Supp.2d 799 (E.D. Mich. 2004) and can be found in any law library. A copy of the decision can also be downloaded from the Student Press Law Center website.

Mike Hiestand is an attorney, based in the far, upper left corner of the "Lower 48," and works as a legal consultant to the Student Press Law Center.

© Copyright 1999-2007 National Scholastic Press Association