The perks of being a wallflower:
How a school district escaped a lawsuit
by fostering an independent student press QT36

Quick Tips: Student First Amendment Rights
Yeo v. Town of Lexington (1997) in the First Circuit Court of Appeals  

by Jan Ewell
Because Lexington High School students made all the editorial, business and staffing decisions for both the LHS Yearbook and the school paper, a suit against the district failed. The school’s superintendent, principal, the two publication advisers and the five school members of the school committee escaped unharmed from the suit that alleged they were violating the First and Fourteenth amendments when the school publications refused two ads.

In 1992 the Lexington School Committee in Lexington, Massachusetts debated making condoms available to students without parental permission. The Musket, the Lexington High School newspaper, ran news articles and editorials on the debate.

Douglas Yeo, a parent and the leaders of a group opposing the condom-distribution policy, complained to the school’s principal about the Musket’s coverage, saying it did not accurately reflect his group’s position. The principal acted in accord with Massachusetts’s law, which gives editorial control to the students under the Tinker standard. He directed Yeo to the student editors of the paper, saying they would make any decisions regarding corrections. He suggested Yeo write a letter to the editor. Yeo did not contact the student paper.

In March of 1993 the voters of Lexington approved the condom distribution policy. In November Yeo and his group submitted a $200 check and a full page ad to the yearbook. The ad read, “ABSTINENCE: The Healthy Choice.  Sponsored by: Lexington Parents Information Network (LEXNET)” followed by a post office box number.

In an editorial meeting considered the ad, the student editors of the yearbook decided it was out of context with their publication; most of their ads congratulated graduates. Some came from family, others from local businesses used by students. The Yearbook had an unwritten policy not to publish political advocacy ads.

Through their adviser (this was before cell phones) they asked Yeo to rewrite the ad to reflect the usual patterns. Yeo refused and threatened to sue the yearbook unless his ad was published as submitted. The students discussed the ad again and decided to stand by their original decision. Yeo apparently felt the students were censoring him and faxed in response, “based on our understanding of the right of equal access and free speech, we do not accept your rejection of our ad and ask that you reconsider your decision to censor it.”

In January of 1994 Yeo submitted the same ad to the Musket, the student run newspaper, with an added line reading, “For accurate information on abstinence, safer sex and condoms, contact.  .  .” The student editors met and decided to reject the ad. Though a number of students at the meeting supported Yeo’s pro-abstinence views, they did not want the Musket to turn into a bulletin board for advocacy on lifestyle issues. Additionally, they were uncomfortably with having to run an ad because someone had threated to sue them.

They wrote Yeo saying that if they had accepted his ad, they “would feel obligated to accept other political statements that might come our way. We do not wish to put ourselves in such position. Ultimately Ad space is not a public forum and for that reason the Musket reserves the right to select what Advertisements it chooses to print.”

Yeo threatened the town and school authorities with legal action. Though the administration wished to avoid lawsuits, they continued to support the students’ control of the content of their publication. This proved fortunate for them because the only forms of government (including schools and the teachers as government employees) are restrained by the First Amendment. If the school, that is, the government, had decided whether to run the ad, they may indeed have violated Yeo’s rights.

The students suggested that Yeo write a letter to the editor; the Letter to the Editor section was a public forum. Yeo refused and insisted his ad be run as submitted, “as is our legal right.” He concluded, “You don’t have to agree with it. You don’t even have to like. You just have to print it. Touché. ”

Yeo did sue the superintendent, the principal, the advisers of the yearbook and newspaper, and the Lexington school committee, claiming that they were denying his First Amendment right to free speech and his Fourteenth Amendment right to due process.  He did not name the publication or the students, who in fact were the ones who rejected his ad, but as private entities and as citizens the students and their publication could not violate his First or Fourteenth amendment rights.

Ultimately the U. S. Court of Appeals for the First Circuit ruled against Yeo. Student journalists do have the right to refuse ads. They are not government agents. Since only the government is in a position to violate the First Amendment or the Fourteenth, there was no suppression of Yeo’s rights.

Furthermore, the court ruled that the school district was not responsible for the students’ decisions. “As a matter of law, we see no legal duty here on the part of school administrators to control the content of the editorial judgments of student editors of publications.”

Under Massachusetts law, the students control the content of the student publications. At Lexington High School, the policy and practice had been for the students to make editorial and business decisions. School officials were not responsible for those decisions, and so there were no First or Fourteenth amendment violations.

The district was protected from judgment in the suit because the students controlled the student media.

And yes, both publications changed their unwritten policy concerning political advocacy ads into clear written policies.

Note: This is not a Supreme Court Case. In May of 1998 the Supreme Court refused to hear the case, letting the First Circuit Court’s decision stand. It is the law in only the First Circuit, that is Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island, but it has been cited as a persuasive precedent in similar case.

Resources:

http://caselaw.findlaw.com/us-1st-circuit/1136678.html

http://principalsguide.org/the-first-amendment-and-student-media/

http://www.splc.org/article/1998/08/court-refuses-to-hear-advertiser