Proposed update to SMSD student publication policy raises censorship concerns, says attorney

Student protestors at SM North the afternoon of National School Walkout day in April 2018.

The Shawnee Mission Board of Education tonight is scheduled to take up a pair of policy revisions intended to meet the requirements of the district’s settlement agreement with students who sued saying the district had violated their First Amendment rights during last year’s National Walkout Day demonstrations.

But the lawyer who represented the students in the federal lawsuit is raising red flags about the proposed policy language, saying it could lead to more — not less — censorship.

Under the terms of the agreement approved by a federal judge in April, Shawnee Mission had to issue an apology to the plaintiffs and agree to train administrators on students’ First Amendment rights. It also agreed to update policies pertaining to students’ rights to assembly and speech, clarifying that student journalists have the right to cover events at their school.

Draft copy of the proposed policy updates posted on the district’s website last week show the district effectively scrapping the entirety of existing policy on student publications, and replacing it with language that the plaintiffs’ counsel says could be broadly construed as giving the district more reasons to restrict student publications.

The updated policies are scheduled to be taken up for first readings Monday, an opportunity for both members of the board of education and the public to weigh in on the proposed language.

In an email sent to attorneys representing the school district on Friday, attorney Eric Weslander, who represented the student plaintiffs, said he and the students were leery of the proposed language in the student publications policy.

“We have some real concerns and are somewhat surprised that there was no effort to consult with the plaintiffs in this case prior to overhauling the policy in a way that sweeps far beyond what the settlement agreement called for and could make it easier for the district to restrict student speech,” Weslander wrote.

At issue is a portion of the new proposed policy that spells out when the district could “limit controversial subjects”:

The District retains the right to exercise control over publications and activities that appear to represent the school and its students. The District/school may limit controversial subjects if the District/school is sponsoring the speech, such as with student publications, if the content would substantially disrupt the ability of the District/school to perform its educational mission or is used to engage in bullying, cyber-bullying, the intimidation of another person or the material is obscene or libelous.

Weslander argues that precedent set in previous student press rights cases like Hazelwood v. Kuhlmeier already clearly establishes what rights school districts have to exercise control over student publications. The language in Shawnee Mission’s proposed policy could be interpreted as reserving rights beyond those the affirmed by the Supreme Court.

“By affirmatively stating that the school or district has a ‘right’ to exercise control over publications that ‘appear to represent the school and its students,’ the proposed policy seems to invite censorship,” Weslander wrote. “Further, it is unclear why certain categories of speech such as cyber-bullying are spelled out in the policy given that the [Kansas Student Publications Act] expressly provides that it does not protect conduct which would warrant expulsion or suspension. While we all can agree that prevention of bullying is a worthwhile goal, the language as drafted seems unclear and open to be construed quite broadly.”

Additionally, a provision in the existing policy that required building principals provide a reason for halting distribution of a student publication has been removed in the proposed update.

“[It] is striking that this policy makes it easier to censor with no explanation, by eliminating the previous requirement that a principal state a reason for the decision to disapprove of distribution of a publication, and by eliminating the student’s ability to appeal to an associate superintendent,” Weslander wrote. “The responsible thing for SMSD to do in this situation would be to withdraw the proposed policy from consideration at Monday’s meeting so that these issues can be resolved in a manner that is consistent with protection of student journalists’ rights.”