First Amendment stresses rights over regulations
In a time where trust in media feels shaken and “fake news” runs seemingly rampant, the Journalism Education Association (JEA) selects a week each year to highlight accomplishments of student journalists across the nation and promote the benefits of scholastic journalism and The Feather covers it from a private school point of view.
The theme for Scholastic Journalism Week (SJW) 2019 focuses on the topic, “dedicated to our communities,” Feb. 17-23. This week also covers the 50th year anniversary of the landmark Supreme Court decision Tinker v. Des Moines.
Students at a public school in Des Moines, Iowa, wore black armbands in protest of the Vietnam War and were suspended after they did not listen to warnings against it. With the help of their parents, they sued the school for violating their free speech.
The Supreme Court ruled that students’ rights should be protected, saying students do not shed their constitutional rights at the schoolhouse gates.
However, the First Amendment states that Congress, a government entity, cannot infringe upon free speech or expression. Therefore, students attending public schools, which are funded by the government, clearly retain their rights to freedom of speech while on school property.
However, at a private institution, such as Fresno Christian Schools, the protection of student rights becomes less clear. Private schools are not arms of the government. Therefore, the First Amendment does not provide direct protection for students at private schools.
While these students are still citizens of the USA and are afforded their rights under the First Amendment off school property, the law becomes a bit murky while they are actually on the private campus.
Students attending private schools do not forgo their First Amendment rights entirely. However, they are subject to a second layer of rules and regulations. Private school limitations are generally established in handbooks or mission statements, such as Fresno Christian’s student handbook.
It’s then within the private institutions freedom to include clauses in the handbook regulating the extent of “free speech” or requiring certain religious practices. If a student infringes on those guidelines, the First Amendment cannot act as a “get out of jail free card.” The 1925 Pierce v. Society of Sisters decision affirmed the role of private schools in U.S. education and the rights of parents to choose private education for their children in accordance with these predetermined rules.
Because of this, it is left to the individual person or institution to determine what is or is not appropriate to say, publish or broadcast, however tight the rules may be. Many private schools are religious in nature, and this is where ethics also provide a layer of abstract regulations. Much of the arguments over the proper scope of First Amendment protection on private campuses are moral or philosophical questions, rather than strictly legal ones.
“For Constitutional issues to apply, there has to be state action,” Barr said. “So if you’re on a purely private campus, Constitutional issues don’t apply. The problem is whether a private school is taking any public money or not. There’s a better argument that there are no Constitutional issues that come into play as opposed to say, a public school.
“I think it’s vitally important for students to have a voice and express that voice in a paper,” Barr continued. “It gets to the basic theory of our form of government, which is that the people are the governors and we give limited power to the government.”
Barr, a partner in Perkins Coie’s Litigation practice, has more than 30 years of experience in the area of civil litigation involving constitutional, employment, media and political law issues. Perkins Coie was named among the “100 Best Companies to Work For” for 17 consecutive years by FORTUNE magazine, 2003 – 2019. Barr represents several news media organizations, including the First Amendment Coalition of Arizona and is the chair of the Phoenix office’s Pro Bono Committee.
Because private schools are not directly under well-defined government protection and instead keep their own guidelines, the freedom of speech is increasingly regulated in these places. However, that does not necessarily have to be the case. Because a private school is not directly under the government’s arm, that can allow for more freedoms, depending on the individual institution.
Attorney Dan Barr believes the leadership of the student newspaper may come into question and talks to Alex Rurik in the following podcast in a telephone interview.
With many public school’s student run newspapers disappearing in the San Joaquin Valley, Barr suggests that it may not just be a lack of student interest but classroom or administration leadership.
“The problem is we’ve gotten away from having an adult supervisor of the student paper,” Barr said. “A lot of high schools have had bad supervisors that didn’t know what they were doing and were more afraid of what the paper could run than teaching kids about journalism.”
Before arriving at FC, campus Superintendent Jeremy Brown worked as principal for Silas Bartsch, a public school in Reedley, CA. Superintendent Brown recognizes the difference between the two educational settings.
“You also have freedom to do things here that you can’t do in public schools,” Brown said. “When you go out in a public school and you try to profess the gospel, it can be seen by others as a hate crime because some people view the fact that there is a heaven or hell as a hostile situation. Public schools then move to an almost specifically spiritual kind of aesthetic neutral.”
Although being neutral may seem helpful, it is not treating all religions equal; it is banning them all from campuses. There is no freedom in when religious expression is banned; it protected under the First Amendment. Fresno Christian and all other religious private institutions are also protected under the same right for religious freedom.
The concept of a “marketplace” of ideas remains vital to democracy and student freedom. A foundational principle of the First Amendment is that government cannot prohibit the expression of an idea just because someone, or a group of people, finds the idea to be offensive.
Brown appreciates the way The Feather is able to cover school and community news, as well as publish columns and editorials, without forfeiting the ability to discuss topics such as religion and race.
“That’s why I think that a journalism mindset pushes the envelope in a good way, because we think about difficult things and ask the difficult questions,” Brown said. “We don’t just take things and deny them right away. At public schools, it’s a sanitized environment and you can’t challenge that; there’s no room for conversations of moral or ethics. It’s about, ‘what can we stand on that’s least offensive to everyone.’ What we have in our private school is an equipping place. We can equip journalists to be able to have these different conversations about religion, race or whatever.”
One of the biggest reasons Europeans even came to the New World was to search for religious freedom. Protestants were persecuted by Catholics and came looking for a safe place to practice their religion, but even Catholics were welcome to come and do the same. When the Constitution was first released to the public, people were in an uproar that these “unalienable freedoms” were not explicitly included and protected, so the founders immediately returned to the drawing board and wrote the Bill of Rights for the colonies to ratify and sign.
After attending both public and private schools, senior Bethany Pouliot believes there is a difference between the two regarding the First Amendment.
I do see a difference in student rights, especially regarding religion,” Pouliot said. “There were points where I had to give presentations in science or in English classes and my teachers would stop me from talking if I brought up even the name of Jesus and it was very oppressing. I really am thankful that I got the opportunity to experience both public and private schools. I feel more at home and free to express my First Amendment rights.”
SJW 2019 celebrates the 50th year anniversary of the landmark Supreme Court Case Tinker v. Des Moines.
Thank you for sharing your #NewVoices stories w/ us today! To cap off #SJW2019 this weekend, it’s #TINKERVERSARY ! Let’s keep it going to celebrate 50th Anniversary of Tinker vs Des Moines & student journalism! @marybtinker @tinkertour @nationalJEA @jeapressrights @QuillandScroll pic.twitter.com/abF5hjUS9X
— Scholastic J Week (@ScholasticJWeek) February 23, 2019
Today, Tinker remains involved in the fight for student First Amendment rights across the country. She is currently speaking to and working with students across the nation to help empower their voices.
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