by John Bowen
A First Circuit Court of Appeals decision this fall paved the way for some student publications to retain their freedom of expression.

Those publications which will benefit most from the decision give students the educational opportunity and freedom to decide content.

In the case, Yeo v. Lexington, a six-judge panel ruled student journalists have the right to refuse ads.
Even more significant may be the court’s language that where students enjoy the responsibility of content decision-making, school administrators are not liable for content.

The question of whether the publications had to run an ad came about when Douglas Yeo, a parent in the community, submitted an ad to Lexington High’s newspaper and yearbook in 1992 that advocated abstinence. Both publications had an unwritten policy not to accept political or advocacy advertising, and thus refused the ad. The ad stated: “We know you can do it! ABSTINENCE: The Healthy Choice,” and was sponsored by the Lexington Parents Information Network headed by Yeo.

Students on each publication met and refused to run the ad. No school official, including advisers, was involved in that decision-making process. Yeo had submitted a $200 check with the ad, and students also returned the money.

Students rejected the ad, but offered Yeo space for a letter to present his views. Yeo refused to write a letter, saying it could not make his point as well as could the ad. The paper also reported the ongoing ad controversy and gave Yeo adequate space for his pro-abstinence views, according to court documents.

In reaching its decision in Yeo, the court reinforced standards long espoused by JEA:
• Administrators who do not censor or prior review are not liable for content. Had school officials in Yeo made decisions for students, Yeo might well have won his case.
• State laws protecting student free expression are important.
• Providing financial support does not mean school authorities can control content of the publication.
• Policies calling publications forums for student expression are critical when precisely worded policies give students decision-making responsibility for content.
• Advisers are state agents and should not be involved in the decision-making process. Yeo might well have won the case if the advisers had made decisions and not students.
• Earning respect of administrators and school officials can pay strong dividends.

Executive director of the Student Press Law Center Mark Goodman said Yeo is important because it reinforces the principle that “hands-off” policies remove administrative liability.

“The decision emphasizes schools cannot enforce the idea ‘administrators are responsible for content’ when students make content decisions,” Goodman said.

A “hands-off” policy, he said, may actually insulate schools from liability.

The court’s ruling is the first involving high school students, but follows other court decisions at the college level, Goodman said.

Goodman said it was essential the students had clearly established a policy for the newspaper and yearbook, and school officials not only supported it but endorsed it.

Court documents also show the letters to the editor section of the paper was considered a forum for student expression, while the advertising section had never been used as such.

Here again, Goodman said, the importance of clear, precise policies is important.

“There is a danger of policies being overbroad,” Goodman said. “In this case it was quite clear students made decisions of policy and the paper was designated as a forum for student expression in its editorial section but not in its advertising. The two can be different.”

Yeo appealed to school and town administrators to intercede and run the ad. Both groups met with students, but left the ultimate decision to student staffers of the yearbook and newspaper, continuing a long-standing tradition of not interfering with students’ decision-making on publications’ content.

In its ruling, the court found this hands-off attitude of critical importance, citing the Massachusetts statute protecting student expression.

“No expression made by students in the exercise of such rights shall be deemed to be an expression of school policy and no school officials shall be held responsible in any civil or criminal action for any expression made or published by students,” the court cited in reference to state law.

The court also found it crucial Yeo did not sue the students, but just school and town officials.

“Yeo sued only those individuals who are public school administrators, teachers or member of the Lexington School Committee,” the court’s decision reports. “They are concededly state actors. He did not sue the student actors, but the action of which he complains was taken by the students. The ‘actions’ he assails were the editorial judgments not to publish his advertisement. Those judgments were made by the students, who are not parties (to state action).”

The court also referred to Hazelwood but not in an typical manner.

“The court reinforced the idea Hazelwood does not require administrators to review or censor,” Goodman said. “Therefore, the school is not responsible for students’ content.”

Citing Hazelwood, the court referred to the “oft expressed view” local parents, teachers and state and local officials control the education of the nation’s youth, not federal judges.

Goodman also noted the court referred to, but did not emphasize the Massachusetts state law protecting free expression. Instead, it “noted the school chose to support the students. The court said schools can do this even without a state law.

“School officials have an interest in their (students’) autonomy to make educational decisions,” the court reports. “Officials have determined the best way to teach journalism skills is to respect in the students’ editorial judgment a degree of autonomy similar to that exercised by professional journalists. That choice by the officials parallels the allocation of responsibility for editorial judgments made by the First Amendment itself.”

In reaching its decision, the court said the fact editors were public school students did not make them state actors, and school administrators had no duty to control the publication’s content.

The court also found state funding of publications does not give the school authority to control content.
“The students’ relationship to the public school officials in the exercise of their editorial judgment was certainly independent,” wrote the court. “At times, it was close to adversarial. School officials gained nothing but a lawsuit from the students’ decision, and officials might themselves, as they told the students, have made a different decision. It is not enough that the decisions took place in a public school setting, that there was some governmental funding of the publication, that teachers were acting as advisers, and that the state actors make an educational judgment to respect the autonomy of the students’ editorial judgment” (to find there was state action by school officials).