June 3, 2009 / Rights in Balance

Guide your legal rights with a policy manual

Written by Randy Swikle

Here’s a summer assignment for leaders of the yearbook staff:  revisit your publication policy manual, or create one if you are missing this important document.

In an effort to balance legal rights with what’s right ethically, it’s a good idea to adopt policies that guide the application of law and make provincial rules less arbitrary and more objective. Furthermore, a good policy manual builds staff morale and enhances performance potential.

It’s important not only for staff members to know the rules and expectations that guide the production of the yearbook, it is also important for the entire school community to know that a structure exists to protect the autonomy of the publication from unwarranted, arbitrary censorship and from those who would use the book to advance personal agendas that are contrary to the best interests of readers.

A policy manual can establish a system of checks and balances to discourage anyone – student, teacher, administrator – from abusing authority. By identifying responsibilities and recognizing parameters set by law, a policy manual can help promote good relations with the entire school community and fair resolutions of problems.

Begin with basic principles of scholastic press law, such as First Amendment status, libel, copyright, obscenity, the other of the nine categories of unprotected speech, freedom of information/open records, and other topics of legal concern. Then advance to policies that involve selection of editors, staff conduct, removal from staff, editorial content, advertising, job descriptions, and other matters of organization and production. Make sure to include a statement of ethics that will help measure adherence to the moral duties and obligations of a journalist.

At the core of your policy manual is the school board’s determination of your yearbook’s First Amendment status. That determines the extent by which students control the content of their publication.

Among other things, law sets parameters for legal conduct and defines options. Governing bodies, such as a school board, create policies to establish framework for the application of law.

For example, in a case relevant to student publications, the U.S. Supreme Court decision in Hazelwood School District v. Kuhlmeier 484 U.S. 260 (1988) reaffirmed an earlier case, Tinker v. Des Moines Board of Education 393 U.S. 503 (1969), but added another criterion to those listed in Tinker regarding the right of public school officials to censor student publications.

Tinker established four criteria for identifying unprotected student speech. Expression:
• Must not be libelous.
• Must not be obscene.
• Must not create a clear and substantial disruption in the school.
• Must not otherwise invade the rights of others.

Hazelwood added the criterion that administrators may censor if they have a legitimate educational reason that is viewpoint neutral. That criterion is based upon two new considerations:
• Can school officials show they have a valid educational purpose for the censorship and that the censorship is not intended to silence a particular viewpoint they disagree with or that is unpopular? (If not, the Tinker standard applies.)
• Has the publication, either by school policy or practice, been opened up as a “public forum” or “forum for student expression” where students have been given the authority to make content decisions? (If it has, the Tinker standard applies.)

The U.S. Supreme Court decision sets the law and the parameters for legal censorship. The option facing school boards is to decide whether to open up the student publication as a “public forum.”

If school officials agree to recognize the publication as a public forum for disseminating perspectives of writers and readers, then only Tinker applies. If officials recognize the publication only as a classroom exercise that is not intended to disseminate student and community perspectives, then the more suppressive Hazelwood standard applies.

To maintain greater control of the yearbook content, students should strive to convince the school board to adopt the Tinker standard. From the standpoints of liability and supporting the educational mission of school, the Tinker standard is the best choice.

In many schools, the yearbook staff has created a publication handbook around the yearbook’s more legal policies that have been adopted. The handbook provides details and support material for policies, and it presents learning support and procedures for practically every aspect of yearbook work. The Journalism Education Association bookstore offers a number of student handbooks that staffs may use as models as they revise and/or create their own manual.

Get together as a staff this summer and work on your publication policy manual. Spend some summer reading time on learning more about scholastic press law and your rights as a student journalist. Check out various First Amendment websites, including the one maintained by the Student Press Law Center.

The work you do this summer can be a springboard to a successful and fun yearbook experience for the 2006-07 school year.

Randy Swikle

Randy Swikle retired in 2003 after 36 years of teaching journalism and advising nationally award-winning students and publications. During 34 years in the Johnsburg School District 12 in Johnsburg, Ill., Swikle was honored as National Journalism Teacher of the Year by the Dow Jones Newspaper Fund and has received the NSPA’s Pioneer Award and the JEA’s Lifetime Achievement Award. Swikle is a member of the JEA Scholastic Press Rights Commission and speaks across the country on the First Amendment.