View in searchable PDF format: 1977.10.00 – Letwin, Administrative Censorship of the Independent Student Press.OCR
Children’s Rights Report
Issued by the Juvenile Rights Project of the American Civil Liberties Union Foundation
22 East 40th Street New York, N.Y. 10016
Vol. II, No.2, October, 1977
STUDENTS AND CENSORSHIP
Part I: Censorship of the
Editor‘s Note: This is the first of a two–part series on students and censorship. Part I, appearing this
month, deals with censorship of the high school student press. Part II, appearing in November‘s issue of
Children‘s Rights Report, will focus on censorship of student text books and removal of books from high
ADMINISTRATIVE CENSORSHIP OF THE INDEPENDENT STUDENT PRESS:
by Leon Letwin •
DEMISE OF THE DOUBLE STANDARD?
Suppose a municipal ordinance routinely required newspapers to submit every issue they published
to the mayor prior to distribution. The mayor was to determine whether that issue contained libel,
obscenity, or illegal incitement – prime examples of unprotected speech – each suitably defined to
conform to existing constitutional standards. 1 In the event it did, he was to ban distribution. Once a ban
was ordered, a right of appeal to the city council would arise. That body would hear any appeal within
twenty–four hours of the time it was filed and decide the matter within another twenty-four hours. From
an adverse decision, the publisher would be free to appeal to the courts. Until and unless the mayor‘s
ban was set aside by court order, however, it would remain in effect.
A law school graduate confronted with such a question on a bar exam would probably experience
paroxysms of pleasure upon encountering a question where the issues and results appeared so clear.
First, the examinee might note, the scheme is ireparably defective in conferring the power to censor
upon an administrative official rather than upon a court, contrary to the requirements of Freedman v.
Mary/and.2 That case held that the power to impose prior restraints, assuming this power exists at all,3
must reside with the courts; it must be exercised only after an adversary hearing;4 and the burden of
initiating that hearing must rest upon the official seeking to impose such restraints and not upon the
publisher seeking to have the administrative restraints lifted.
Second, warming to the task, the bar examinee might note that the requirement of prior submission
of the newspaper, even if only to permit the mayor to decide whether to seek judicial restraints, would
• Professor of Law, University of California School of Law, Los Angeles. This article is reprinted with
permission from the South Carolina Law Review, Volume 28, pages 565-585, March 1977. Footnotes
are available upon request to the Children’s Rights Report. Prof. Letwin is also the author of “After Goss
v. Lopez: Student Status as Suspect Classification?” Stanford Law Review, Volume 29, page 627 (1977).
probably be intolerable. Such a requirement would invite a form of Parkinson‘s law that would e>pand
the quantity of material censored, whether directly at the hands of the censor or indirectly through selfcensorship
Third, even if the power to censor were exercised solely by the courts, there would be grave doubts
as to whether certain forms of unprotected speech, libel for example, could ever be constitutionally
censored.6 To say that speech is unprotected is to acknowledge that some form of official displeasure will
greet its dissemination: damages, a fine, or even imprisonment. But the prior restraint of speech is a
heavyhanded and dangerous remedy, and its employment requires extraordinary justification.7
Fourth, the bar examinee might stress the crucial role of a free press and point out that efforts to
restrain it would appropriately trigger the most inhospitable judicial review, whatever the substantive
grounds offered in justification.8
All in all, our examinee could wrap up the essay with the black letter observation that prior
censorship comes with a heavy, if not conclusive, presumption against its constitutionality,9 one that has
scarcely been met in the hypothetical case.
Now pose the same question with the following changes. Substitute “school,” “principal” and
“student distributor of an unofficial student newspaper” for “city,” “mayor” and “publisher.” In short,
suppose a school regulation purports to empower a principal to review and censor all independent
student newspapers prior to their distribution on school grounds. Would such a procedure be
constitutional? Transposing the issue in this manner converts it, at least for many observers, into an
altogether different and troublesome issue, one warranting markedly different answers than would be
deemed acceptable in the society at large.
Courts confronting this issue have approached it from at least two different perspectives. Probably
the majority of courts begin their analysis with the view that restraints are permissible in the school
context which would be anathema in the society at large. Such a view commends itself to these courts
because of the special circumstances, youth, and immaturity of the students which exist within the school
context. 10 Other courts appear to regard our society’s general hostility toward prior censorship as an
appropriate stance even in the school setting. 11
This is not to say that courts holding the majority view have been indifferent to the evils of
prepublication administrative restraints. Rather, they have sought to deal with such evils by means more
moderate and equivocal than the flat prohibition of such systems. They have, instead, expressed their
concerns by requiring the promulgation of various standards and procedures designed to reduce the
inherent risks of administrative censorship. 12
The Supreme Court has yet to address this conflict as to whether routine administrative restraints,
which would be impermissible elsewhere, are rendered constitutionally tolerable due to the special
conditions extant in the school context. 13 However, of the numerous circuit courts of appeal that have
considered this issue, whether their initial disposition was to support or condemn a double standard,
“none . .. [has] actually upheld a system of prior restraint. “14 Even the courts committed to the
constitutionality of school restraints have yet to find valid an actual censorship scheme presented to them
by school authorities. It has, apparently, proved a good deal easier to endorse prior administrative
restraints in principle than to find an acceptable system.
Nowhere has the effort to fashion an acceptable compromise, one which would tolerate
administrative restraints but also protect against excesses in its use, proved more determined and
extensive than in the federal courts of the Fourth Circuit. These courts have sought, in a succession of
three cases15 [Nitzberg u. Parks, 525 F. 2d 378 (4th Cir. 1975); Baughman u. Freienmuth, 478 F. 2d
1345 (4th Cir. 1973); Quarterman u. Byrd, 453 F. 2d 54 (4th Cir. 1971)] over a five year period, to find a
constitutional censorship scheme. One has yet to be found. More important, the experience of the Court
of Appeals for the Fourth Circuit suggests that one cannot be found and that an acceptable, “sanitized“
censorship scheme based on a diluted version of student first amendment rights is an unattainable goal.
An anticensorship principle appears to be lurking within its decisions waiting to be born, notwithstanding
that court‘s commitment to rhetoric affirming the validity of prior restraints. The experience of the Fourth
Circuit argues that the failure to find a constitutional censorship scheme is not accidental, the product of
incompetence, or the result of lack of effort, but rather, is inevitable, given the intrinsic risks of prior
censorship. It is time for the common law to perform its classic task of extracting a new principle from the
inchoate teachings of accumulated decisions. That principle is that prior, routine administrative restraints
are an unsalvageable evil when applied against independent student newspapers just as such restraints
would be if applied to the press at large.
Such a principle could rest on either of two bases: 1) on the broad view that even public school
students presumptively are entitled to the same constitutional rights as others: 16 or alternatively, 2) on
the narrower view that whatever tolerance the constitution may exhibit for treating school children
differently, that tolerance does not extend to the area of prior censorship because of the special dangers
associated with that technique. 17 Either of the above attitudes, a generic view about student constitutional
rights or a special view about the dangers of prior censorship, would amply support a judicial rejection of
prior censorship in the school context. Under either view, the Fourth Circuit experience suggests a
constitutionally tolerable prior censorship scheme is unlike ly to be found.
THE FOURTH CIRCUIT EXPERIENCE
In the Fourth Circuit‘s most recent confrontation with the issue in Nitzberg v. Parks,18 Justice Tom
Clark, sitting by designation, noted that this was the third occasion that circuit had had to reject proposed
school censorship regulations. 19
The first of the cases to which he referred, Quarterman v. Byrd,20 was decided in 1971. It involved a
student who had distributed an independent paper on school grounds which contained, among other
things, the words:
IF WE HAVE TO– WE‘LL BURN THE BUILDINGS OF OUR SCHOOLS
DOWN TO SHOW THESE PIGS THAT WE WANT AN EDUCATION
THAT WON’T BRAINWASH US INTO BEING RACIST. 21
For this she was expelled. The expulsion was premised on a school rule whose crowning glory was its
stark simplicity: it prohibited distribution of material “without the express permission of the principal.”22 It
provided neither the most rudimentary standards nor procedures to control the principal’s discretion. On
these grounds, the Fourth Circuit declared the regulation unconstitutional. This conclusion was not a
difficult one. It required only that the court reject carte blanche control by school authorities over student
expression. The court, that is, had only to assume that students enjoyed some first amendment rights to
conclude that a totally discretionary power would leave school administrators “adrift upon a boundless
sea,“23 free to exercise censorial powers on an ad hoc, subjective, and therefore constitutionally
That students shared in the protections of the first amendment was an undebatable proposition after
the Supreme Court‘s landmark decision in Tinker v. Des Moines Independent School District.24
Students, it proclaimed, did not “shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate.“25 However, “the Court has repeatedly emphasized the need for affirming the
comprehensive authority of the States and of school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools.“26 Tinker resolved the conflict between these
rights in favor of the students’ right of speech unless it could be shown that such speech activity “would
materially and substantially disrupt the work and discipline of the school“27
Tinker did not, however, reach the issue of prior press restra ints. It did not address, much less
specifically a nswer, the question of whe ther the school context somehow warranted censorship of
published student material that would be unthinkable elsewhere. Tinker‘s strict holding was that students
had the right to express opposition to the war in Vietnam by wearing black armbands on school grounds.
That, in itself, represented a historic advance in the constitutional rights of school childre n.28 However, as
might be expected in a case expressing such a fundamental change in attitude toward young people and
toward school authority, the Court’s decision can be read broadly or narrowly. Snippets of lanaguage can
be culled from the opinion pushing in either direction, and both those who support and those who
oppose prior restraints in the school context have been able to draw some comfort from the Tinker
The Fourth Circuit in Quarterman was prepared to strike down the particula r censorship scheme it
confronted on the basis of its reading of Tinker, but not merely because it employed prior cenosrship.
The rights of school children, it held, were not coextensive with those of adults. The fact that the
censorship scheme was of a kind that would be unthinkable in the external society was not its “basic
vice.“30 Its vice, rather, was that it fa iled to limit the discretion of the administrators with appropriate
criteria and procedural safeguards. Censorship was permissible, but only if criteria were established by
which the authorities could reasonably “forecast substantial disruption of, or material interference with, 3
school activities”31 and if expeditious review procedures were provided to test their censorship decisions.
It said little else on the subject of standards or procedures.
A fair reading of Quarterman would have been that administrative censorship, though unacceptable
in the society at large, was permissible in the school context so long as appropriately limited by standards
and procedures designed to mitigate the danger of suppressing protected speech.32 School authorities
turning to the task might have been excused for believing the goal was within easy reach.
The Fourth Circuit’s second encounter with the issue came in Baughman v. Frienmuth.33 The
dramatis personae had changed: a different student, school system, and panel of judges were involved.34
The issues, however, were much the same. Litigation was triggered by a warning letter from the principal
to students who had distributed a pamphlet criticizing the prior restraint regulations then in effect. The
court did not assess the content of the pamphlet since its concern was only with the validity of the
regulations on their face. As in Quartrman, the court‘s starting point was to reject any flat prohibition of
school administrative censorship. Public school students properly could be subjected to rules which
would be unthinkable in the society at large.35
As to the appropriate contours of a school censorship scheme the court‘s answer was more
interesting. The school authorities here had attempted to promulgate specific standards. They claimed
no total, ad hoc power. In fact their standards tracked vaguely the usual definitions of unprotected
speech, including speech which “contains libelous or obscene language, advocates illegal actions or is
grossly insulting to any group or individual …. “36 To be sure, this formula suffered from numerous
defects judged by existing constitutional standards applicable to the society at largeY However, it was
not at all clear that non–school standards provided the test (any more than they had on the issue of
The court, however, rejected the scheme, holding that prior censorship was presumptively
unconstitutional, even in the school context.38 The prohibitions against illegal advocacy and against
“grossly insulting” language fai led for overbreadth in going “beyond the … permissible standard … of
forecasting substantial disruption. “39
As to unprivileged libel or material that was obscene if read by children, the court agreed. in theory,
that such materials properly were banned from the school grounds; but the court found that the
particular censorship procedure under consideration in Baughman suffered from the problem of
intolerable vagueness. Proscriptions against “obscene or libelous material“40 might provide a permissible
measure for post-publication sanctions,41 but not for purposed of prior administrative restraints. “[W]e
think letting students write first and be judged later is far less inhibiting than vice –versa.”42 In a
noteworthy insight into the dangers of censorship in the school context, the court continued:
The use of terms of art such as “libelous” and “obscene” are not sufficiently
precise and understandable by high school students and administrators
untutored in the law to be acceptable criteria. Indeed, such terms are
troublesome to lawyers and judges . .. [A] Justice of the Supreme Court
has confessed that obscenity “may be indefinable.” . .. “Libelous” is
another legal term of art which is quite difficu lt to apply to a given set of
Thus, while school authorities may ban obscenity and unprivileged
libleous material there is an intolerable danger, in the context of prior
restraints, that under the guise of such vague labels they may
unconstitutionally choke off criticism, either of themselves, or of school
po licies, which they find disrespectful, tasteless, or offensive. That they may
In order for a prior restraint system to be valid, the court concluded, it must consist of standards which
contain “precise criteria sufficiently spelling out what is forbidden so that a reasonably intelligent student
will know what he may write and what he may not write.”44 Thus, after Quarterman and Baughman, a
valid prior restraint system must provide standards which enable students to understand their rights and
duties and enable school officials to determine what constitutes substantial disruption of or a materia l
interference with school activities.
School authorities were left with the unenviable task of defining difficult terms with precision, and
with defining one of these terms, obscenity, with a degree of precision that no one ever has been able to
Turning to the procedures in the rules before it, the court found them wanting. Not only was there
no “expeditious review procedure,” but the rules failed to provide a “specified and reasonably short
period of time in which the principal must act.”46 The court did not specify what period of time would be
permissible, but observed that: “[W]hatever period is allowed, the regulation may not lawfully be used to
choke off spontaneous expression in reaction to events of great public importance and impact.“47
The case thus marked a notable advance over Quarterman in the required level of protections. If the
court still was committed in principle to upholding school censorship, the gap between first amendment
protections in the society at large and on school grounds had shrunk considerably. The substantive
standards for protected speech were quite similar in the school context to those that pertained
elsewhere,48 and such standards had to be defined with extraordinary precision if they were to serve as a
basis for prior restraints rather than mere after-the-fact punishment.
To this unfulfilled task the school authorities returned in Nitzberg v. Parks,49 the third chapter of this
saga. That case involved yet another plaintiff and another school system. The panel included one judge
who had sat on the Quarterman panel, one judge who had sat on the Baughman panel, and retired
Supreme Court Justice Tom Clark, sitting by designation, who authored the opinion.
Two independent student newspapers had been banned at a Baltimore high school, one because of
an article about cheerleaders which apparently described them as sex objects. 5° School administrators
saw this as obscene and demeaning to the school and threatened the students with suspension if they
put out another issue.s 1
Of particular significance was the fact that the regulations here had conferred no blanket or
unguided discretion upon school authorities, as in Quarterman. Nor had they employed unelaborated
standards such as libel and obscenity as in Baughman. The school authorities had attempted instead to
promulgate adequate guidelines for both the students and the school officials by fashioning precise
definitions. These attempts were made at the insistent prompting of the trial court, which had required
no less than three rewrites of the rule before approving the version that ultimately came before the court
on appeal. 52 That version barred “obscene or libelous“53 material and material that would ‘‘reasonably
lead the principal to forecast substantial disruption of or material interference with school activity. “54
Each category was defined with considerable particularity. 55 Nonetheless, Justice Clark found such
definitions to be vague and overbroad and, thus, found the regulation to be unconstitutional. The
substantial disruption standard was fatally flawed because it did not provide specific criteria as to what
would constitute such disruption. Equally fatal was the absence of criteria by which an administrator
might reasonably forecast that the disruption, however it was defined, would occur. 56 It was, in short,
insufficient merely to employ the substantial disruption test of Tinker v. Des Moines Independent School
District57 in the hope that its contours would be fleshed out properly by administrativ~ discretion.
The libel definition fared no better. That definition purported to set forth the libel privilege of New
York Times v. Sullivan.58 However, the court observed that it had failed to apply the standards of that
case “and its progeny.“59 Whether the court meant that the rule did not adequately reflect the teaching
of New York Times or that it failed to incorporate the refinements of “its progeny,’‘ or both, was left
At best, from the point of view of the school authorities, the attempted definition of obscenity may
have been sufficient, though even this seems doubtful.60 In any event, the court reversed and remanded
Consequently, the Fourth Circuit, after its third encounter with a school censorship scheme, fou nd
itself still committed, in theory, to the proposition that school authorities possess extraordinary
censorship powers. In the application of this principle, however, the court has been unable to endorse
any of the schemes which the school authorities had been able to fashion over the course of three
lawsuits and five years. Nor did the court offer any detailed guidelines to help the school authorities out
of the morass. Instead, it contented itself with noting the defects before it without suggesting alternatives.
This was of course consistent with a classic common law notion of the proper role of a court. It was a lso a
form of cruel or unusual punishment if the court did have a solution in mind, given the tortured course
of this litigation.
THE IMPACT AND EFFECT OF THE FOURTH CI.RCUIT VIEW
One conclusion which might be drawn from this experience is that, with renewed effort, school
authorities will yet be able to fashion a censorship scheme that can survive close scrutiny. A more realistk:
view, however, is that any form of school censorship will create intolerable and incurable dangers of
“unconstitutionally chok[ing] off criticism of [school authorities] or of school policies which they found
disrespectful, tactless or offensive.”62 Despite what the Fourth Circuit has said, what it has done tends to
demonstrate its awareness that these dangers infect any scheme which permits school authorities to
review speech in advance of distribution, to ban that of which they disapprove, and to enforce that ban
until and unless student litigation secures eventual relief from the courts. Neither administrative
procedures nor substantive standards, the safeguards repeatedly invoked by the court, can be fashioned
to give reasonable assurance that protected speech will not fall victim to “arbitrary action and unfair
treatment“63 by school administrators. The reasons why this is true are not difficult to state.
The task of formulating acceptable standards is a formidable one. First, the substantive grounds for
restraint apparently must be defined so as to reach substantially only that speech which is unprotected
under existing constitutional standards. This excludes the use of such categories as speech which is
embarrassing to school authorities, objectionable to parents or community figures, disrespectful,
controversial, vulgar, and the like.64
Second, the standards must be defined with sufficient precision so that both school authorities and
students are given clear notice of what is prohibited. This excludes the bare and unilluminating use of
such categories as obscenity or incitement, requiring, rather, detailed elaboration and perhaps even
particularized illustrations of what those terms embrace.
Third, though the point has yet to be considered in any of the Fourth Circuit opinions, not all
unprotected speech is properly subject to prior restraints, as opposed to mere post hoc remedies.65
However, even if the standards drawn were sufficiently narrow and precise, the danger that speech
suppression will spill over beyond its theoretical confines remains great.
First, the very requirement of routine, prior submission to school authorities for content approval
has a chilling potential that belies the theoretical standards. Any institutionalized review system tends to
foster informal but, nevertheless, coerced self-censorship.66 This is true irrespective of the intentions of
There is good reason to be wary of those intentions as well. If prior restraints are permitted, it is
simple practicality for courts to recognize what school officials themselves will recognize: that school
censorship is immune from review except in the unusual circumstance that a student is willing and able
to challenge it in court. School authorities inevitably then will be tempted to restrict speech with less selfrestraint
than if judicial review were a routine and inescapable precondition to a ban on distribution.67
There is, additionally, reason for concern about the disinterest and impartiality of the school censors.
It is not mere student paranoia to fear that the authorities will utilize the inevitable speech that criticizes
them. The desire to do so is a natural tendency of all governmental officials, and, for that reason, our
society displays little inclination to permit them the opportunity. There is no reason to suppose school
officials are immune from this tendency.
If one places trust not simply in carefully drafted standards, but in appropriate procedures for
reviewing administrative censorship decisions, no procedures are fast or efficient enough to keep those
decisions from interfering with students’ constitutional rights.
Even if no more than a day or two each were allowed for the principal to make the initial censorship
decision and for review by higher school authorities, this would often be intolerably long.68 If the material
is attuned to events of the moment, delay is tantamount to suppression. Even if the student emerges at
the end of the review oeriod with a right to distribute material, it may no longer be timely.69
From another viewpoint, a four day period for both the hearing and the administrative review to
take place is far too short, for the student has a due proces right to present evidence and arguments.70
Assume, for example, that a newspaper‘s criticism of a principal is objected to as libelous. Due process
undoubtedly requires that the student be given a fair opportunity to show that the statements were true,
or that the speaker had not spoken with “actual malice. “7 1 Similar factual issues are, of course, generated
if the student is accused of disruption or dissemination of obscene materials. To deny such opportunity is
to deny due process. To accord it is often to insure that the speech will be moot by the time the deliberative
process is concluded. To make the student choose whether he wants a fair hearing or a speedy decision
is to make him elect between his fourteenth amendment and his first amendment rights. The point to be
stressed is that this is not an accidental or avoidable consequence. It is an inherent dilemma in any
scheme of administrative licensing of the press.72
Further, realistically speaking, the pertinent time period is not the two to four days it might take to
exhaust administrative remedies but the months or years it would take to obtain judicial review, and even
that review would come only if the would-be distributor had the will and the capacity to litigate tenaciously
over a school-imposed ban. He re again, the inertia of a system which permits school-imposed censorship
weighs heavily on the side of restricting speech irrespective of the ultimate merits.
A possible response is that the nature of the school setting requires that the students‘ rights yield to
the need for school discipline and that this justifies school censorship of the sort which would not be
countenanced in other environments. It might then be said that a system of prior restraints is required to
deal with the danger of illegal incitement by students which might endanger other students and imperil
the school‘s academic program. However, this danger is easily exaggerated. In the large number of public
school newspaper cases thus far litigated, few, if any, have arisen for this reason. The case has yet to be
made that this anticipated danger warrants the draconic measure of systematic prior restraints.
The risk that school authorities will be tempted to use any censorship powers they possess to
suppress pointed or disrespectful criticism is a near certainty.73 [See, e.g. Bright v. Los Angeles Unified
School Oist., 556 P. 2d 1090 (1976); Scoville v. Board of Educ., 425 F. 2d 10 (7th Cir.) cert. den., 400
U.S. 826 (1970); Dickey v. Alabama, 273 F. Supp. 613 (N.D. Ala. 1967)]. Experience suggests that the
power to prevent illegal speech is far more likely to be used against protected speech by school a uthorities
operating under unrefined and expansive notions of disruption, obscenity, or libel. In balancing these
risks, the prudent course is to reject ex parte of the Fourth Circuit decisions to date: that a double
standard in respect to the press rights of students is feasible and necessary in the school context.74
Such a resolution would scarcely leave school authorities helpless to deal with legally prohibited
speech. They have the power to subject their stude nts to school disciplinary proceedings. If necessary,
they can draw upon the police powers of the state to deal with unlawful disruption. Fi~lly, in extrao[flinar:y_
circumstances, the school even can :>eek injunctive relief from the courts against illegal student activity.75
[To say that the school officials can seek injunctive relief is not to concede that they are e ntitled to it. See,
Bright v. Los Angeles Unified School Dist., supra; Nebraska Press Ass ‘n. v. Stuar~ 427 U.S. 539 (1976);
New York Times Co. v. United States, 403 U.S. 713 (1971)]. These devices provide adequate remedies in
the school context, even as they do in society at large.
The Fourth Circuit thus far has energetically striven to find a way to protect students’ right of speech
within a framework that upholds the administrative licensing of speech. Its experience suggests that
students cannot, at an acceptable cost, be denied these protections, which are taken for granted in
society at la rge, against administrative restraints. The appropriate accomodation of first amendment
rights and school disciplinary needs is to reaffirm the vitality of the fi rst amendment in the educational
system, and rely on traditionally favored remedies to deal with any serious abuses that may arise.
EDITOR‘S NOTE: THE CONTROVERSY CONTINUES -lWO RECENT CASES
Disputes between student newspapers and school authorities continue. Shortly after the article
(printed above) by Leon Letwin was written, a Virginia federal court heard a case involving the Fairfax
County School Board‘s attempt to censor an article in a student newspaper (“The Farm News”) entitled
“Sexually Active Students Fail to Use Contraception”. The school principal censored the article before
publication and the School Board upheld her decision. The School Board contended that the article
violated the Board’s regulation concerning sex education programs in the school which specifically
proscribed birth control as a subject of those programs. “The Farm News” was a school paper written by
students during school hours for which academic credit was given. Copies of the newspaper were
normally distributed to students in their homeroom class.
The student newspaper, of course argued that it was protected by the First Amendment. The School
Board argued that “The Farm News” was not a public forum e ntitled to First Amendment protection but
rather it was an “in–house” organ distributed to a “captive audience”.
The federal court decided in favor of the students. Gambino v. Fairfax Co. School Board, 429 F.
Supp. 731 (1977). It stated that the newspaper “was conceived, established and operated as a conduit for
student expression on a wide variety of topics. It falls clearly within the parameters of the First Amendment.”
(at 735). 7
The court struck down the School Board‘s rationale about the article conflicting with its policy on
sex education by reasoning that since “The Farm News” was established as a vehicle for First Amendment
expression and not as an official publication, “the newspaper cannot be construed objectively as an integral
part of the curriculum.” (at 736).
The School Board, however, appealed the decision and obtained a stay of execution pending the
outcome of the decision of the Fourth Circuit Court of Appeals. “The Farm News” and its student editors
are represented by the Student Press Law Center in Washington, D.C. Their brief before the court
The plaintiffs (the students) presented a serious case of First
Amendment injury to the district court. Judge Bryan agreed with the
plaintiffs‘ contention that school authorities had acted unconstitutionally.
The students who stand before this court haue done what the dictates of
responsible journalism haue demanded, i.e., to defend freedom of the
press against encroachment of assault from any quarter, public or private.
It now falls upon this Court to affirm the district court’s Order and thereby
affirm the plaintiff’s belief that First Amendment freedom of expression
under our constitutional system is indeed a reality and not merely an
It is expected that the appeal will be determined shortly.
In New York City, a student editor at Stuyvesant High School was denied permission to distribute a
questionaire to fellow students and to have the results published in the student newspaper, The Voice.
The questionaire was designed to measure the sexual attitudes of students.
The editor brought suit in federal court, where the school authorities argued that serious harm
would result if certain students were confronted with particular questions in the proposed survey. The
school also argued that the questionaire should not be answered by students without their parents‘
The federal court disagreed with the school‘s requirement of parental consent but found that there
was some merit to the argument that the questionaire might be unduly troublesome for 13 and 14
year-old students only. The court therefore upheld the First Amendment right of the newspaper to
conduct and publish the results of the sex attitude survey among high school juniors and seniors.
Tracthman u. Anker, 426 F. Supp. 198 (S.D. N.Y. 1976).
The judge (Constance B. Motley) quoted the Supreme Court’s landmark decision in Tinker u.
DesMoines Independent School Dist.: “It can hardly be argued that either teachers or students shed the
Constitutional rights to freedom of speech or expression at the schoolhouse gate.” 393 U.S. at 506. She
also pointed out that the proposed survey might have a beneficial, educative effect. “This type of
independent investigation should be encouraged and applauded,” Judge Motley stated, “for an integral
goal of our educational system is to stimulate inquiry as well as to impart knowledge.” 426 F. Supp. at
The school appealed, however, and the case was recently reversed by the Second Circuit Court of
Appeals in an as yet unpublished opinion. It is likely that the case will be appealed to the Supreme Court.
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