How student speech is protected in Neshaminy's 'R' word case

Jeffrey Shulman from Georgetown Law says Neshaminy High School's struggle over using the word "Redskin" in a student newspaper raises some interesting constitutional issues.

There is nothing especially new or startling about the controversy that not infrequently arises from student publications. There is, though, something peculiar about the legal storm around the student editors of the Playwickian, the student newspaper of Neshaminy High School.

The usual scenario in these disputes involves a speech restriction imposed by school officials who want to keep students from printing something deemed inappropriate. But at Neshaminy, school officials are actually demanding publication of something the student editors themselves find inappropriate. More than inappropriate. School officials have sought to compel publication of a word that, in the view of the student editors, is a racial slur. The word in question is "Redskin," which just happens to be the name of the school's sports teams.

There is also nothing new or startling about controversy arising from the use of Native American imagery by non-Native American schools. High schools and colleges across the country have navigated the unruly currents of public opinion when deciding whether to retire American Indian nicknames and mascots. But the use of this "R" word has been especially inflammatory. Just last month, the U.S. Patent and Trademark Office cancelled the Washington Redskins' trademark registration upon a finding that the term is disparaging to Native Americans.

The Playwickian editorial board would agree. In October 2013, by a vote of 14-7, members of the board decided to ban use of the word — a policy, by the way, recently adopted by both the Seattle Times and the Detroit News. Not ready to enlist in this children's crusade, Neshaminy's principal ordered that the ban be banned. The legal fray, as they say, was joined.

Student speech cases are governed by a quartet of Supreme Court cases. The Court has protected students' First Amendment rights, repeating its oft-cited proposition that public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Yet with equal vigor and consistency it has hastened to add that such rights "are not automatically coextensive with the rights of adults in other settings."

Given "the special characteristics of the school environment," school officials may restrict student speech that 1) threatens a substantial disruption to the school environment or invades the rights of others (Tinker v. Des Moines, 1969); 2) is vulgar, lewd, profane, or plainly offensive (Bethel v. Fraser, 1986); 3) is sponsored by the school and is inconsistent with the school's educational mission (Hazelwood v. Kuhlmeier, 1988); or 4) advocates drug use (Morse v. Frederick, 2007). The case on point with the facts of the Neshaminy conflict is Hazelwood.

In Hazelwood, the Court reviewed the actions of a high school principal who withheld from publication two pages of Spectrum, the school newspaper written and edited by the students of the school's Journalism II class. Of particular concern were two stories, one on the issue of student pregnancy (the story used false names to keep student identities secret), the other describing the impact of divorce on students at the school. With regard to the first story, the principal worried that some students might still be identifiable and that the material was inappropriate for younger students at the school. With regard to the second story, the principal felt that the parents of a student named in the article should have been given an opportunity to respond to what was a rather unflattering portrait of their home life.

Believing that there was not enough time to make necessary changes, the principal deleted the two pages on which the disputed articles appeared. Three former students who were staff members of Spectrum sued in federal court, claiming that their First Amendment rights had been violated. The district court ruled that no violation had occurred, but the Court of Appeals for the Eighth Circuit disagreed. Applying the Tinker standard, the circuit court found no evidence "that the principal could have reasonably forecast that the censored articles or any materials in the censored articles would have materially disrupted classwork or given rise to substantial disorder in the school."

The Supreme Court reversed. At the outset, the Court noted that the question addressed in Tinker— whether the First Amendment requires a school to tolerate particular student speech — "is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech." The first question involves a student's personal expression on school premises; the second question — this is the question raised by the Neshaminy facts — "concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."

The gist of the Hazelwood decision is that when dealing with school-sponsored speech, school officials may exercise greater control than would be allowed under Tinker. "[E]ducators do not offend the First Amendment," stated the Court, "by exercising editorial control over the style and content of student speech in school-sponsored expressive activities." Using this deferential standard, the Court determined that the principal's decision "to excise the two pages containing the problematic articles was reasonable given the particular circumstances of this case."

But the constitutional interests of students were not dismissed. Any restriction of student speech in school-sponsored expressive activities, cautioned the Court, must be "reasonably related to legitimate pedagogical concerns." When a restriction has no valid educational purpose, the First Amendment will step in to protect students' free speech rights.

Banning the word "Redskin" in a school newspaper might reasonably be perceived as a policy decision bearing the imprimatur of the school. By itself, however, this problematic association does not justify a speech restriction. There needs to be something more to make the restriction constitutionally permissible. Some legitimate pedagogical concern, most likely relating to professional standards of journalism, must be at stake. But it is difficult to argue that student journalists are not abiding by professional standards when newspaper editors in the "real" world are enforcing the same prohibition.

And does it make a difference that banning the ban of the word "Redskin" could force student editors to a crisis of conscience? The Court has been receptive to complaints of compelled speech (see the 1977 case Wooley v. Maynard, holding that New Hampshire could not require display of its state motto — "Live Free or Die" — on vehicle license plates), and no more so when the speech is that of children. In West Virginia State Board of Education v. Barnette (1943), the Supreme Court protected schoolchildren against the action of local authorities, who, by compelling the flag salute and pledge of allegiance, had "transcend[ed] constitutional limitations" on the authority of the state. The compulsory flag salute and pledge "require[d] affirmation of a belief and an attitude of mind"; and by forcing the children to utter what was not in their minds, the Court concluded, the state had invaded "the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."

Yet the Neshaminy legal scale need not tip one way on another. This controversy is ripe for compromise.

The school board approved one compromise solution last Thursday. The board endorsed a policy that would allow the editors to ban the word "Redskin" in news articles, but not in editorials or letters to the editor. This solution may be meant to address the complaint of Neshaminy's principal that the ban might violate the First Amendment rights of other contributors to the student paper, though it's a stretch to suggest that the free speech clause protects a right to be free of editorial interference with one's prose. (If only.)

The principal's complaint is awkwardly misplaced. After all, it is the school's contention that under Hazelwood interference with the paper's content is permissible. Indeed, the Hazelwood Court made it emphatically clear that a school newspaper is not a forum for public expression, the pages of which are open to use by the student body generally. If school officials objected to the use of the word "Redskin" as derogatory, they would not hesitate to find that appropriate regulation of the paper's content served a valid education purpose.

The student editors may be edging closer to a more reasonable compromise. They did print an editor's note explaining their decision. If the note disassociated the school from the students' editorial policy, it would be more difficult for school officials to make the constitutional case for banning the ban. A disclaimer is standard professional fare, and it meets head-on the Court's concern lest the public might reasonably perceive student expressive activity to bear the imprimatur of the school.

There is a legitimate pedagogical interest here, but it's not in banning the ban. Just the opposite. It's in allowing the "R" word ban to go forward in such a way that teaches the entire high school community — school officials included — valuable lessons both about professional standards of modern journalism and about the constitutional standard of free expression. Taught properly, this teachable moment could truly serve a valid educational purpose.

In any event, the student editors have vowed to continue the fight. "We're definitely not just going to sit back and let this happen," said one coeditor-in-chief. No doubt, there will be more teachable moments to come.

Jeffrey Shulman teaches at Georgetown Law.  His new book, "The Constitutional Parent:  Rights, Responsibilities, and the Enfranchisement of the Child," is published by Yale University Press.

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