To Frank Eisner

From Applicant
Date 2/5/2024
Subject Gardenton Board of Education

The issue is whether a school board can implement the student communications code
for the Gardenton School district without violating any rights towards free speech. Ms. Kantor
has expressed interest in making the final decision in any student publication, but avoiding any
possible litigation. Case law on this topic has always addressed the issue in a two part way.
First they analyzed the forum of public expression, then they checked to see if the actions taken
violated any individual rights.

What forum of public expression do student publications fall under?

Under Hazelwood School District v Kuhlmeier, the United States Supreme Court
discussed the forum in which student publications were characterized. They stated that the
publications would only be considered part of the general public forum if they are distributed to
the general public outside the school. This reasoning was again seen in Lopez v Union High
School District, which categorized school publications as operating in the limited public forum.
The court held that since it was not part of the broader general public, free speech could be
more restricted and controlled. Here, Dr Kantor states that the school produced media that is
mostly consumed by students, faculty and parents. The plays and magazines are not marketed
to the general public even if they can be passed to others outside the school. Therefore the
forum in question would be limited and not general. This will allow Dr. Kantor and the board to
regulate which media gets published and what is denied. Therefore, our recommendation would
be to add specific language to the preamble of the code. The language should include that all
publications in any media form under the auspices of the school would be classified as a
publication in a limited forum and therefore subject to the approval of the guidelines outlined by
the board of education.

What is the scope of the school’s power to limit speech in publications?

The next question analyzed by the courts is the school scope of power when it exercises
its authority over publications. The courts unanimously held that a school can limit speech it
deems may interfere with their goal of education. Therefore, Hazelwood School District v
Kuhlmeier, stated that the standard may be higher than the traditional standard found in the real
world. However, the school should be able to justify their actions with reasoning as to how the
speech they are restraining, goes against their agenda as a school. My recommendation would
be to add language into the code that would outline this scope. For example, bullet point 5d can
be expanded to include, “is deemed by the principal not to be in the school’s best interest and
contradicts the school’s mission statement.” This will help limit any lawsuit against the school,
claiming they are overstepping their authority and over regulating speech.
 Furthermore, the court analyzed a school board code of conduct in regards to free
speech in Lopez v Union High School District. The court stated that codes that include
restrictions that limit speech to exclude foul language, and maintain professional standards of
english grammar and journalistic writing style. Therefore, the school board should add that it will
ban all speech that contains, “obscene or profane material,” as these are the specific words
used by the Lopez court. They should also include a statement that ensures all material
published will conform to, “professional standards of english grammar and journalistic writing
style.” This is found in line 1 and should be kept. Once again the court rules that the school
board should be ready to show justification for any speech that is banned. One example of such
justification would be obscene or profane language.
Finally the court debated how a school board may have narrower rights if the publication
discussed a public figure. In Leeb v Delong, a public figure can not recover on a defamation
suit, and therefore public opinion about a public figure can not be regulated by the school. The
school should avoid adding any language that will give them the power to censor material
expressing an opinion about a public figure. The protections of Section 48 would forbid a school
board from exercising that power. However, as stated above, if the opinion had obese language
and profanity, the school board would be able to remove that language or request it be
rewritten. This would fall under their powers as expressed in the Lopez v Union High School
District case.