Blog Law Blog

The point of a law like this is to tie the hands of school adminisrators so that they cannot use the power given to them by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)

In Hazelwood, a principal, reviewing page proofs of an upcoming issue of the school newspaper, yanked pages that contained a story about students dealing with pregnancy and a story about the impact of parents’ divorce on students. The stories were written and edited by students in journalism course at the school. The principal thought that references to birth control and sex were inappropriate for younger high school students. He also thought a divorced father, even if not named in the story, should be asked for consent before remarks concerning him were published. And the principal came up with other reasons as well: privacy, yadda yadda. Basically, discussion of divorce and pregnancy in the school newspaper made him uncomfortable. Let’s just say he’s not looking to train the next Woodward and Bernstein. He’s the kind of administrator who likes to unfold his school newspaper to see a front-page puff piece about how Friday Pizza Day is such a big hit in the school cafeteria.

The U.S. Supreme Court said that the school had not violated the students’ rights under the First Amendment. Why? In part, it was because the school owned this particular press. They created and funded the newspaper, so they could do what they wanted with it.

But the Supreme Court also went further to hold that the First Amendment rights of students in public schools are not the equal of First Amendment rights of adults in other settings. The court said that a school doesn’t have to tolerate student speech that is inconsistent with the school’s basic educational mission. So even if the government can’t censor similar speech outside the school, they can, according to the court, inside the school.

With this being how the First Amendment is interpreted with respect to schools, state legislatures have drafted so-called anti-Hazelwood statutes aimed to give students an extra measure of free-speech protection beyond that which First Amendment requires.

At first, this may seem strange, especially if you’ve never had to take a course constitutional law in law school. After all, a state legislature can’t overrule the U.S. Supreme Court. Right?

To keep track of how this works, you have to keep in mind that the First Amendment is not binding on the people. It doesn’t force the people or prohibit the people from doing anything. The First Amendment is binding on the government (including the public schools). By restraining the actions of government, the First Amendment carves out a freedom for the people. State legislatures are always free to add more restrictions on state government. Thus, state legislatures can carve out a progressively larger swath of freedom of the people in their state.

So, in essence, the anti-Hazelwood statute says, “Okay, U.S. Supreme Court, if you won’t interpret the First Amendment to tie the hands of meddling principals, we, the state legislature, will.”

Nebraska Capitol in Lincoln
(Photo: EEJ)

Representative Ken Haar in Nebraska has introduced Legislative Bill 582, the “Student Expression Act.”

Now, if you are up on your state-civics trivia, you’ll know it’s called a “Legislative Bill” instead of a “Senate Bill” or “Assembly Bill” because Nebraska has just one legislative house. It’s the only state with a unicameral legislature.

The Student Expression Act would offer some protections for student bloggers.

Here is the whole text:

Be it enacted by the people of the State of Nebraska,

Sec. 1. This act shall be known and may be cited as the Student Expression Act.

Sec. 2. The Legislature finds that the State of Nebraska has an obligation to protect the First Amendment rights of public school students in order to instill in students the value of democracy and to prepare students for informed and active civic participation. To that end, the right of students to free expression in all public schools in Nebraska shall not be abridged except as provided in the Student Expression Act.

The Legislature encourages school districts to adopt and publish policies on student expression following the guidelines of the Student Expression Act.

Sec. 3. For purposes of the Student Expression Act, student expression includes the rights of a student to: Express his or her thoughts and beliefs through speech and symbols; create, write, publish, perform, and disseminate his or her views; and assemble peaceably with other students on school property for the purpose of expressing opinions.

Sec. 4. The following forms of student expression are prohibited:
(1) Student expression which is obscene; (2) Student expression which is defamatory; and (3) Student expression which creates a clear and present danger of unlawful acts, causes material and substantial disruption of the orderly operation of the school, or invades the privacy of others.

Sec. 5. No student expression made in the exercise of a First Amendment right shall be deemed to be an expression of school policy, and no public school, school district, teacher, administrator, or school board member shall be held responsible or liable in any civil or criminal action for any student expression.