Why Dean v. Utica is important

By John and Candace Bowen

A 2004 decision in the Sixth Circuit, based in part on two other recent Sixth Circuit cases, might help provide some guidance to advisers facing what seems to be an ever-expanding onslaught of calls for censorship.

And, as careful reading and examination of case sites will show, developing a sound editorial policy and educating administrators as to what court decisions like Hazelwood really say can go a long way to stop that onslaught. The latest crack in Hazelwood’s wall started in 2002 and ended in November 2004.

In November of 2004, Judge Arthur J. Tarnow of the Eastern District of Michigan called the Utica Community Schools’ 2002 censoring of an article in the student publication, the Arrow, about gas fumes from a school bus garage, “indefensible.”

Tarnow introduced his decision with a 1950 quote from President Harry S. Truman.

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear,” Tarnow wrote.

His decision clearly reflects the limits of Hazelwood , including a look at the concept of viewpoint neutrality and the “imprimatur analysis.”

The article Katy Dean and others wanted to print was about a school bus parking garage located near the school’s athletic fields. Students living near garage and nearby residents claimed diesel fumes from idling buses constituted a nuisance, violated their right of privacy and harmed their health, the court’s decision reports.

In his summary judgment, Tarnow indicated Utica’s journalism was designed to teach the journalist’s role, which is “provide an independent source of information so that a citizen can make informed decisions.”

Tarnow examined three categories of speech: student speech that happens to be on school premises, government speech and school-sponsored speech. In his examination, Tarnow noted three cases in supporting Dean: Tinker, Kincaid and Draudt. Since the Hazelwood argument rested in part on the publication not being a forum, Tarnow referred to it in his decision.

“Based on the evidence in the record,” Tarnow wrote, “the Court finds that the Arrow is a limited public forum because it has been opened for use by the public for speech and discussion concerning matters that are relevant to the Utica High School community and its readership. Even if the Arrow is a non-public forum, the defendant’s suppression of Dean’s article was unreasonable.”

Tarnow referred to the Draudt precedent that “if school authorities ‘by policy or practice’ opened that facility for indiscriminate use by the general public, or by some segment of the public, such as student organizations,” the school facility may be deemed to be a public forum, which he determined the Arrow to be.

Tarnow cited Kincaid for another part of his decision: “‘Actual practice speaks louder than words’ in determining whether the government intended to create a limited public forum.”

As judge James S. Gwin had in Draudt, Tarnow cited Hazelwood’s six “intent” factors, plus three Draudt originally posed:

  1. Whether the students produced the newspaper as part of the high school curriculum;
  2. Whether students receive credits and grades for completing the course;
  3. Whether a member of the faculty oversaw the production;
  4. Whether the school deviated from its policy of producing the paper as part of the educational curriculum;
  5. The degree of control the administration and the faculty advisor exercise; and
  6. Applicable written policy statements of the board of education.

The Sixth Circuit examined three additional intent factors:

  • The school’s policy with respect to the forum;
  • The school’s practice with respect to the forum;
  • The nature of the property at issue and its compatibility with expressive activity

In this decision, Tarnow took each of the points and showed how they demonstrated the Arrow did not fall under the Hazelwood guidelines.

“The curriculum guides, course descriptions and masthead for the Arrow are evidence that the Arrow is a limited public forum,” Tarnow wrote. “According to the curriculum guide, the class is intended to plan, assign and produce a regularly scheduled newspaper for the school/community audience…in accordance with community standards.”

Tarnow noted the school had no evidence the paper was not intended to be a limited public forum and that “the language of these guidelines indicate a clear intent to open the Arrow as a news forum rather than exclusively as an educational tool.”

Directly addressing Hazelwood, Tarnow wrote, “In this case, none of the Hazelwood factors favor a finding that defendants’ removal of Dean’s article was reasonably related to a legitimate pedagogical concern.” In explaining this reasoning, Tarnow further addressed issues raised by the Hazelwood case and others addressing other pedagogical concerns. He argued the only reasonable conclusion from all of the evidence is the superintendent ordered the deletion of Dean’s article from the Arrow because she disagreed with the interviewed neighbors’ viewpoint” and lawsuit against Utica Community Schools because of the alleged fumes.

The superintendent’s use of “’inaccuracies’ to describe her criticism of the article simply cannot disguise what is, in substance, a difference of opinion with its content,” Tarnow wrote.

In his conclusion, Tarnow quoted President Dwight D. Eisenhower. “Don’t join the book burners,” Eisenhower said in a speech at Dartmouth College on June 14, 1953. “Don’t think you are going to conceal thoughts by concealing evidence that they ever existed.”

With rationale instructive to all advisers, and we hope administrators, Tranow simply stated in granting summary judgment, Dean’s article “should not have been suppressed.” Reading the language of the entire decision will help advisers educate their administrators and those in the community who would support their efforts in making student publications real learning tools of journalism and critical thinking.

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