A free press shouldn't stop at the schoolyard

Updated 10:02 AM ET, Wed November 29, 2017

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Attorney Frank D. LoMonte is a professor of media law at the University of Florida, where he runs the Brechner Center for Freedom of Information. As the executive director of the Student Press Law Center from 2008 until August 2017, he launched the "New Voices" initiative to enact laws protecting student journalism. The views expressed in this commentary are solely his. This is the latest installment in CNN Opinion's series on the challenges facing the media as it is under attack from critics, governments and changing technology.

(CNN)When a California judge entered an unlawful order sealing an entire lawsuit file -- including, bizarrely, even the court order imposing the seal -- outraged journalists took action to defend the public's right to know.

With the help of volunteer legal counsel, reporters Anumita Jain and Armaan Rashid filed a petition in a Contra Costa County court to unseal the case file, which involves a school district's decision to discipline a Danville student over a homemade social-media video said to depict Arabs as terrorists. The school district's decision to remove the student as president of the student government association as punishment for the video -- and then restore him to the position after a public outcry -- dominated two local school board meetings, but without access to the court file, the details of the case (including the contents of the video) remain a puzzle to the community.
Frank LoMonte
There's nothing especially novel about the case -- except that the journalists are themselves in high school, staff members of the Wildcat Tribune newspaper that has provided the community's most thorough and reliable coverage of the lawsuit and the controversy behind it.
"As journalists, Rashid and Jani are attempting to discharge their duties in the highest and best ethical tradition by obtaining direct access to first-hand documentation about a news event," says their motion to unseal the file, which is awaiting a ruling in Contra Costa County Superior Court.
    That high school journalists are capable of work rivaling that of professionals, and that they have taken the lead in battling a lack of government transparency, should come as no surprise to anyone. Some of the best journalism in America today is coming out of student-run outlets, as demonstrated by the acclaimed investigative reporting of a team at Kansas' Pittsburg High School, who so painstakingly discredited their newly hired principal's inflated resumé that she was forced to resign.
    It may come as more of a surprise to learn that in many ways, this dedication is more the rule than the exception. Student journalists are, increasingly, the information lifeline for their communities. With employment in traditional newsrooms hitting historic lows, down 42% since 1990, the public is more reliant than ever on students to sound the alarm if schools are unsafe or ineffective -- or if there's any story unfolding on their campus that could affect their community. Education news now accounts for just 1.4% of the time and space in mainstream media outlets, according to a 2009 study by the Brookings Institution. It's up to students to fill that information void -- if their schools will let them.
    High schools often nurture the mentality that students have a "civic duty" to say only favorable things about the education they're receiving. "Be true to your school" is a nice enough idea -- but you won't find it in the Constitution. "Citizens will be punished if they question or criticize the government" isn't a sentiment that belongs in any American educational institution. As a lawyer assisting students in censorship cases, I once had a school superintendent in Tennessee tell me that a student's political column was rejected because it "might cause passionate conversations" -- as if passionate conversations about politics were a distraction from learning and not central to it.
    Regrettably, for every student in a well-supported journalism program at a secondary school empowered to use media to right wrongs, there is another student who's been bullied and silenced by image-obsessed school authorities whose highest priority is avoiding controversy, not providing a quality education.
    In Flushing, New York, for example, a principal refused to print an entire edition of the Advocate newspaper in spring 2017 because of a column that captured students' honest assessment of the shortcomings of Flushing High School (in particular, one student's comment that "out of my 8 classes, only 3 of my teachers really care.")
      In Omaha, Nebraska, school authorities retaliated against the Pawprint student news outlet at Millard West High School for a factually accurate article questioning the propriety of some (unnamed) teachers' classroom criticisms of President Trump. First, they pulled the article offline. Then, after relenting in the face of a potential First Amendment lawsuit, they removed a well-credentialed faculty adviser from her job -- just weeks after her students won the best-in-state award for the newspaper she advised.
      In the Chicago suburb of Steinmetz in 2016, a high school principal ordered the student newspaper shuttered and the journalism program canceled in mid-semester after a student reporter defied his orders not to write on her personal off-campus blog about a controversy over changing the starting time of the school day. (The school district ultimately overruled the decision after private benefactors stepped forward to volunteer to pay for printing the newspaper.)
      While it seems outrageous for schools to use their power over students for purposes of public relations or image maintenance, it's not clear that it's illegal.
        In a 1988 ruling, Hazelwood School District v. Kuhlmeier, the US Supreme Court stripped students of all meaningful constitutional protection when they use a school-provided publication or platform to convey their speech. The Hazelwood decision was widely denounced by First Amendment scholars at the time, and it hasn't aged well -- imagine, in 2017, trying to prevent high school students from learning about teen pregnancy by yanking pages out of newspapers, as the principal of Hazelwood East High School did -- but it endures as a stain on the lawbooks. In the 30 years since, there is only one documented case of a high school journalist successfully challenging school censorship in court, a 2004 case in which a Michigan student was prevented from publishing a truthful article about a lawsuit against her school because the school didn't want to call public attention to the case.
        Fortunately, help is on the way. Increasingly, state legislators are recognizing the unique educational value of student journalism and stepping up to protect the journalists that Hazelwood left vulnerable.
        California and Kansas were among the first states to embrace press freedom in schools, and it's no coincidence that the courageous public-service journalism being done in Danville and Pittsburg isn't being seen in Flushing or in Omaha.
        Since the launch of a nationwide reform movement called "New Voices" in 2015, six states -- North Dakota, Illinois, Maryland, Nevada, Vermont and Rhode Island -- have enacted laws assuring college and high school journalists that they can't be punished merely for questioning school authorities.
        Thirteen states from coast-to-coast now protect student journalism against image-motivated censorship, and bills are anticipated in at least a half-dozen other states in 2018.
          The case for protecting press freedom in schools isn't just about training future journalists. It's about developing inquisitive, participatory citizens willing to ask the hard questions of government authorities that involved citizenship demands.
          It's also about rooting out systemic inequality. Research by University of Kansas scholars documents that censorship is a pervasive problem in high school newsrooms -- and that it disproportionately affects young women.
          More than half of all female students surveyed during the 2015 school year reported that they'd "self-censored" from pursuing a story, anticipating an adverse reaction from school authorities -- a rate twice that of male students. And more than one-third of all students said they'd been categorically banned from talking about certain topics in student media. (The most frequently forbidden subject? Unthinkably, in the midst of an epidemic of opioid fatalities, it's substance abuse.)
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          Kansas journalism professor Peter Bobkowski, co-leader of the survey, has documented the civic-education benefits of working in a student newsroom where First Amendment principles are honored. After separately surveying 900 high school journalists across a variety of schools in Kansas and Missouri, Bobkowski found that students whose journalistic work is respected and valued develop greater confidence (what he calls "civic efficacy") in their ability to use their voices to make social and political change.
          It's fashionable to point fingers at social-justice-drunk "snowflakes" for devaluing the First Amendment in higher education, but that misses the point. Students arriving on America's college campuses have largely spent the formative years of their educational lives watching fundamental constitutional principles devalued and their rights and voices routinely disregarded without consequence by respected authority figures.
          It's no mystery why students believe it's the government's job to protect them from offensive speech: the Supreme Court told them in Hazelwood that the government's interest in avoiding political controversy is more important than freedom of the press, and they've lived that reality every day of their K-12 lives. The erosion of First Amendment values will be reversed only when schools reopen their doors to the "passionate conversations" that effective civic learning requires.