Monthly Archives: October 1977

1977.10.00: Administrative Censorship of the Independent Student Press: Demise of the Double Standard (Children’s Rights Report)

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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

Student Press

Editors Note: This is the first of a twopart series on students and censorship. Part I, appearing this

month, deals with censorship of the high school student press. Part II, appearing in Novembers issue of

Childrens Rights Report, will focus on censorship of student text books and removal of books from high

school libraries.

ADMINISTRATIVE CENSORSHIP OF THE INDEPENDENT STUDENT PRESS:

by Leon Letwin •

INTRODUCTION

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

twentyfour 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 mayors

ban was set aside by court order, however, it would remain in effect.

Constitutional?

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).

2

probably be intolerable. Such a requirement would invite a form of Parkinsons law that would e>pand

the quantity of material censored, whether directly at the hands of the censor or indirectly through selfcensorship

.5

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 newspaperfor city,“mayorand 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 courts 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 TOWELL 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

impermissible basis.

That students shared in the protections of the first amendment was an undebatable proposition after

the Supreme Courts 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 school27

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. Tinkers 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

decision. 29

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

4

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 courts 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 courts 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 nonschool standards provided the test (any more than they had on the issue of

school censorship).

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 material40 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 “libelousand “obsceneare 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

words ….

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

not do.43

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

achieve.45

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. 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 libelous53 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

unanswered.

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

the case.61

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.

5

6

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

treatment63 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

the censors.

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 newspapers 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 studentsrights 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.

EDITORS 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 inhouse” 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

8

The court struck down the School Boards rationale about the article conflicting with its policy on

sex education by reasoning that since “The Farm Newswas 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

concludes:

The plaintiffs (the students) presented a serious case of First

Amendment injury to the district court. Judge Bryan agreed with the

plaintiffscontention 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

unkept promise.

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

permission.

The federal court disagreed with the schools 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

202.

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.

Children‘s Rights Report is published ten times each year by the American Civil Liberties Union

Foundation. Juvenile Rights Project. 22 East 40th Street. New York. N.Y. 10016. Subscript ion rate is

fifteen dollars per year. Single issue price: two dollars. Alan Sussman. editor: Rena Uviller. counsel:

Marty Guggenheim. staff counsel.