June 3, 2009 / Rights in Balance

Take a positive approach to legal issues

Written by Randy Swikle

Sometimes, having the law on your side is not enough. You also may need to be proactive toward possible adversaries.

For example, let’s say you plan a yearbook feature about leisure activities, and you want to include an action photo of a student who is hunting. He’s pointing a gun, and you know that your principal may take issue with the coverage – a student using a weapon in the school yearbook.

Reviewing the Tinker and Hazelwood U.S. Supreme Court cases, you may feel confident that your decision to use the photo falls within the parameters of student autonomy in controlling the yearbook’s content. But legal arguments alone may not be enough to sway the objections of a contentious administrator. After all, the principal will have his own logic and interpretation of the law to support his perspective.

How can you protect your rights without alienating a person who can cause the yearbook staff great grief if he sets his mind to it?

Remember the epitaph of William Jay:

Here lies the body of William Jay,Who died maintaining his right of way.He was right, dead right, as he sped along,But he’s just as dead as if he were wrong.

You may be right and win the “battle,” but that’s of little consequence if you lose the “war.” Getting the principal to grudgingly acquiesce on one issue at the expense of losing his favor and long-term support is not a victory to celebrate.

Perhaps the dilemma may be avoided by emphasizing a positive, problem-solving approach via “We Agree” statements. If the principal takes a negative position regarding the photo in question, suspend – at least temporarily – any confrontational discussion, and focus initially on things that you likely agree about:

  • Can we agree that our school has a “no tolerance” policy regarding toy or real guns at school?
  • Can we agree that exceptions to that policy may include a starter’s pistol for track events, a bogus gun used in a school play and replica rifles used by the color guard drill team?
  • Can we agree that hunting is a popular sport practiced by many students and teachers?
  • Can we agree that a yearbook should cover culture, current events and activities students engage in beyond school walls?
  • Can we agree that to prohibit yearbook coverage of hunting would be discriminatory unless we also prohibited coverage of fencing, archery, and every other activity that includes a device that could be used as a weapon?
  • Can we agree that under the Tinker and Hazelwood U.S. Supreme Court decisions, students have profound rights regarding freedom of expression?
  • Can we agree that any censorship of student publications should be viewpoint neutral, as the Court has required, and within the other parameters for suppressing speech set by the courts?
  • Can we agree to strive for an objective rather than an arbitrary approach to the issue at hand?
  • Can we agree to act respectfully and professionally and harbor no personal vendetta against an adversary?
  • Can we agree that a free and responsible student media supports the school’s mission of preparing students for our democratic society?
  • Can we agree that a remedy less offensive than censorship exists to address the principal’s concerns?

“We Agree” statements such as these can help identify areas of consensus and more clearly define disagreements. Where there is discord, ensuing dialogue may lead to transposition, compromise or simply a more empathic understanding of differing perspectives. The latter, at least, will make an unpopular decision easier to accept.

In our legal system, many decisions are reached via out-of-court settlements. Litigants reach a common ground.

In our school system, reaching common ground depends largely upon two factors: whether the principal will abandon an autocratic pedestal and sit at eye level with students to practice the democratic principles that the school teaches; and whether students will resist flaunting the law and instead consider the principal’s concerns from legal and ethical perspectives.

A proactive approach initiated by either students or administrators can make it easier to tackle legal and ethical issues. The “We Agree” strategy supports a proactive approach toward a win-win resolution.

For questions on ethics, scholastic press law or the First Amendment, contact Randy Swikle.

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.