Students’ fight over Redskins name and some First Amendment issues

A high school in the Philadelphia suburbs is embroiled in its own battle over using the term “Redskins” for its sports team, the ability of student journalists to control their own newspaper, and a touchy constitutional subject: student free speech.

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Neshaminy High School

Neshaminy High School in Langhorne, Pa., has been the scene of a nine-month-long debate between a student newspaper called the Playwickian and the school board. National outlets like ESPN, Education Week, numerous newspapers, NPR,  and media blogger Jim Romenesko have picked up on the story, and its First Amendment implications.

The disagreement began last October and it has received even more attention after a trademark decision against the NFL’s Washington Redskins sent the local media to the school for reaction.

In broader terms, the Neshaminy debate is bringing up discussions about two famous Supreme Court cases that have defined student First Amendment free speech rights. In 1967, the Supreme Court said in the Tinker case that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But the 1988 Hazelwood decision severely limited those rights when it came to student newspapers.

It remains to be seen if the Neshaminy situation develops into a legal case that has constitutional legs, but the argument between the school administration and the Playwickian is littered with First Amendment references.

The debate at Neshaminy is over the First Amendment ability of the student newspaper to adopt an editorial policy that limits the use of the word “Redskins.” Or the First Amendment right of the school district to ensure all voices are heard, even those that use a word the newspaper’s editors find offensive. Or the definition of who controls the editorial policy: the students as editors or the district as a publisher.

ESPN host Keith Olbermann last November gave the school board his “Worst Persons in the Sports World” award on a segment on the sports network. But last fall, a newspaper in Washington state, the Union-Bulletin of Walla Walla, came down hard on the students, with its editorial board arguing the school district had every right to have a final say in the Playwickian’s editorial policies, as the newspaper’s publisher.

“A truism in the business is the freedom of the press belongs to the person who is responsible for paying the bills and who will be held liable if the paper is sued. The publisher of a newspaper cannot be forced to print anything. Nor can he or she be prohibited from publishing what they want. But the publisher is responsible if the paper is sued for something it has published and as such has the final say,” it said. “In most high school newspaper situations, the publisher is the school, not the students.”

The Neshaminy students had decided in October 2013 to ban the R-word from their newspaper, only to be overruled by their principal. The American Civil Liberties Union of Pennsylvania and the school’s lawyers then became involved in the public debate.

The school board and student editors confronted the issue again at a May 2014 public meeting, where board attorney Mike Levin made the school’s  position clear, stating that the case was “black and white” because the newspaper is an extracurricular activity funded by taxpayers. A student responded jokingly by labeling the board’s policy as one of the “Intolerable Acts.”

The argument flared up yet again recently. On June 17, a day before the Patent office decision about the Washington Redskins, the Neshaminy school board addressed the on-going controversy at a public meeting.

Superintendent Robert Copeland said in a statement that the school confiscated printed newspapers that reflected a student editorial decision about the R-word not approved by the board.

“It seems to me that the lessons I wanted my students to learn about the first amendment was how critical it is to our freedom and that the first amendment guarantees free speech not just popular speech,” Copeland said in a statement published on Philly.com.

A week prior, the student journalists declined to run an editorial written by another student, who wanted to use the word “Redskins” in its entirety to show his support for the school’s athletic programs. Instead, the student editors want to use the word “R——-“ to reflect their opinion that the word was a racial slur.

The editorial from Stephen Pirritano, a Neshaminy football player, eventually ran unedited in an Allentown, Pa., newspaper.

“Every member of the Neshaminy community who contributes their tax dollars to the district has an equal claim to ownership of The Playwickian. Therefore, no student has the right to censor another; in our paper, every student has an equal right to expression allowed under the First Amendment,” he said. “Everyone must remember, no matter what side of the issue you are on, that the First Amendment is a two way street.”

The school board insisted the students run Pirritano’s original editorial, but the students decided to delete the editorial at the printer and add a note instead explaining their decision. School officials started to confiscate the printed newspapers at the school, and then stopped. And then the school district was rebuked by Olbermann for a second time on national television for its actions.

“I guess somebody must have explained the First Amendment, which only protects you from the government from punishing you for free speech, and if anybody in this equation is the government it would be a local school board,” Olbermann said.

Ironically, on June 12, the student’s adviser, Tara Huber, was named journalism teacher of the year by the Pennsylvania School Press Association.

And as the school heads into its summer break, there is bigger censorship controversy brewing.

The Allentown Morning Call reports that school district officials have written a draft policy that will move the online version of the student newspaper to a website controlled by school officials. In addition, the policy would give school officials control over the newspaper’s social media accounts, and enshrine the name “Redskins” as not being “construed as a racial or ethnic slur.”

Playwickian editor in chief Gillian McGoldrick told the newspaper that, “basically, they want us to stop acting like journalists.” The students have also retained their own attorney,  in addition to having backing from the ACLU and the Student Press Law Center.

Huber, the newspaper’s adviser, also told the Student Press Law Center’s blog that the school ordered her to take away reporters’ access to the newspaper’s Twitter, email, Instagram and website by changing the passwords.

The Student Press Law Center points out that if the case makes it to the legal system, the school district might not be able to lean on the the 1988 Hazelwood decision: A Pennsylvania state law passed in 2005 expanded free speech expression for student newspapers, essentially trumping the Hazelwood decision within the state.

“Students shall have the right to express themselves unless the expression materially and substantially interferes with the educational process, threatens serious harm to the school or community, encourages unlawful activity or interferes with another individual’s rights,” says Pa. State Code 12.9.

However, students like Pirritano could argue that the newspaper’s editors were blocking his rights under the law to publish his unedited opinion in  a public student forum like the Playwickian.

To be sure, the controversy won’t die down in the immediate future. The Neshaminy board could vote on a permanent policy this week, and the Playwickian’s editors are set to return to school this fall as seniors.

Scott Bomboy is the editor in chief of the National Constitution Center.

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