Questions about public forum status

When your publication is a public forum
and when it is not

by Mark Goodman, Professor and Knight Chair in Scholastic Journalism, Kent State University
School officials’ ability to legally censor school-sponsored student expression at public junior high and high schools is determined by whether they can meet the burden the First Amendment places on them to justify their actions. Often the most important question in that analysis is which of two First Amendment standards they have to meet.

• The Tinker standard (as defined by the case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)), which says schools can censor only if their actions are necessary to avoid a material and substantial disruption of school activities or an invasion of the rights of others. This language may sound vague, but as the courts have interpreted it, the Tinker standard is a very difficult one for school officials to meet and typically requires them to show evidence of physical disruption before their censorship will be allowed.

• The Hazelwood standard (as defined by the case Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)), which says schools can censor if their actions are reasonably related to legitimate educational concerns. Although this standard requires school officials to justify every act of censorship as educationally sound, it is a standard that gives school officials more extensive authority to silence or punish student expression.

How do you determine which standard applies? Forum status.

The Supreme Court made clear that the standard it created in the Hazelwood case did not automatically apply to every school-sponsored student publication. Rather, to determine which standard applied to a particular act of censorship of a student publication, a court must first ask this question:

Has the publication, by either school policy or practice, been opened as a designated public forum for student expression?

Even curricular, school-sponsored student publications may still be entitled to strong First Amendment protection and exempt from Hazelwood’s limitations if they have been designated a “public forum” for student expression.

[pullquote]The Supreme Court made clear that the standard it created in the Hazelwood case did not automatically apply to every school-sponsored student publication. Rather, to determine which standard applied to a particular act of censorship of a student publication, a court must first ask this question:

Has the publication, by either school policy or practice, been opened as a designated public forum for student expression?[/pullquote]

How do you determine public forum status?

A public forum is created when school officials have “by policy or by practice” opened a publication for use by students to engage in their own free expression.

In the Hazelwood case, the Court said that it believed that both the policy and practice at Hazelwood East High School reflected school officials’ intent to exercise complete control over the student newspaper’s content. That finding prompted the Court to say a designated public forum did not exist. Nevertheless, student publications at other schools with different policies and different practices relating to editorial control can be public forums. Where student editors have been given final authority over content decisions in their publications or where a school policy explicitly describes a student publication as a designated public forum, the Tinker standard will still apply.

At schools where student editors are given the authority to make final decisions about what will be included in their publication or where a school policy reflects an intent to give students that authority, public forum status will still be found and schools will have to meet the Tinker standard before they can legally censor.

Is your publication a designated public forum?

In the post-Hazelwood world, it is more important than ever that student journalists and their advisers know what policies their school has adopted relating to student publications or student expression. The language of those polices (whether they give editorial control to students or keep it in the hands of school officials) and the amount of freedom that students have traditionally operated under at the school can determine whether Hazelwood or Tinker sets the standard for what school officials will be allowed to censor.

[pullquote]If you’re developing a new policy, the Scholastic Press Rights Committee recommends using language that reads something like this:

[Name of publication] is a designated public forum for student expression. Student editors make all content decisions without prior review from school officials. [/pullquote]

Two things are important about the phrasing of this policy statement. First is the use of the words “designated public forum” as opposed to “limited public forum” or other similar language. Although many once believed the two phrases were interchangeable, some recent court decisions have suggested that using the word “limited” opens the door to school censorship as permitted under Hazelwood.

Second, using the phrase “student editors make all content decisions” is in many ways a clearer restatement of the meaning of “designated public forum.” It conveys the intent behind the public forum phrase that anyone unfamiliar with the relevant Supreme Court rulings should understand.

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