Oregon Advisory Opinions June 05, 1978: OAG 78-73 (June 5, 1978)

OAG 78-73.

A school newspaper is published with the facilities of a school district, often in conjunction with journalism classes offered at a high school. It has been frequently contended that the student editor of a school newspaper is entitled by

the First Amendment of the United States Constitution (applied to state action by the Fourteenth Amendment) to make editorial decisions free of any control or censorship by school authorities. The issue arises most frequently in connection with state college or university newspapers, but we see no grounds for any distinctions based on the educational level of the school or the age of the editor.

Historically, the First Amendment has provided protection from laws which impose a prior restraint on speech or press. Near v. Minnesota ex rel Olson , 283 US 697, 716 (1931). Any law imposing a prior restraint on speech or press bears a heavy burden of proof of its constitutionality. Bantam Books v. Sullivan , 372 US 58, 70 (1963); New York Times Co. v. United States , 403 US 713, 714 (1971).

If a school district enacted a rule which prohibited official school newspapers from publishing editorial positions on ballot measures and candidates for public office, such action would be state action. The issue then is whether such a school district rule abridges freedom of the press. Several cases have so held. Many of them are cited in 37 Op Atty Gen 1414 (1976). See also , Trujillo v. Love , 322 F Supp 1266 (D Colo 1971); Zucker v. Panitz , 299 F Supp 102 (SD NY 1969); Dickey v. Alabama State Board of Education , 273 F Supp 613 (MD Ala 1967).

If a private newspaper owner wishes to stop printing editorial positions on ballot measures and candidates for

public office, he or she is free to do so. It is the owner of the press who determines or approves the editorial policies and the layout of the newspaper. The owner of the private newspaper determines how his or her freedom to print will be exercised, and it is the owner who rightfully complains when his or her freedom of the press has been abridged. The editor is an employe and agent of the owner, and is subject to the owner's direction and policies in determining what to print. The editor's discretion is circumscribed to the extent that the owner's policies control content of the paper.

We have found similar principles applicable to the "owner's" control over editorial discretion when the newspaper involved is student run and university sponsored. In 37 Op Atty Gen 1414, supra , we discussed the authority of a college newspaper editor to refuse to publish certain types of advertising in the paper. The issue was whether the state university, as publisher of the student newspaper, had general authority to establish policies governing staff editorial decisions and to remove an editor who failed to comply therewith. In an extensive discussion, we concluded that while a state university has no right to censor or control the content of a student newspaper when it is published independently of the university, the university as "proprietor" and "owner" may exercise editorial control over the school sponsored and supported newspaper.

We arrive at the same conclusion (except as noted below)

for a high school or elementary school newspaper, owned by the school district and published under proper school authority. We realize we are rejecting several cases to the contrary, cited above and in 37 Op Atty Gen 1414, supra . However, as was fully discussed in our earlier opinion, the contrary cases display no logic or analysis which we find acceptable for use in reaching a contrary conclusion.

It is the school's newspaper. The editor and others who work on the newspaper are not doing so in the capacity of free agents to whom freedom of the press would attach. As we noted in 37 Op Atty Gen 1414, supra , for purposes of being subject to direction from the school district, the editor of an official school sponsored and supported newspaper stands in a position similar to that of an employe of the school district. Just as the owner of a private newspaper can dictate policy to an employe, the editor, so can a school district dictate policy to the editor it has chosen for its newspaper.

There is one major difference between a privately owned and a school district owned newspaper. Action by the district is action by the state. The Fourteenth Amendment to the United States Constitution, guaranteeing equal protection of the laws, applies to such action. The district could not require the newspaper to favor one group to the disadvantage of another. For example, the newspaper could not be required to have a policy of favoring only Democrats or only Protestants or only whites for office, regardless of individual merit. Here how

ever, the issue presented is that of endorsing no one, so an Equal Protection question does not arise.

The second question presented is whether, notwithstanding the right of school officials to prohibit school newspaper publication of editorial positions on ballot measures and candidates for public office, the school district may permit publication of such editorials. Subject to the cautions noted below, we conclude the district may permit such publication.

The only possible reason that a policy permitting student editors to write or accept and publish material taking editorial stands on ballot measures and candidates for public office might be invalid, is the fact that such a policy would permit public money to be spent for the publication and dissemination of political views. In 35 Op Atty Gen 169 (1970), it was held that a school district could not lawfully spend its funds to advocate a particular election result, although it would be permissible to use district funds to inform district voters of facts pertinent to a district election. In Porter v. Tiffany , 11 Or App 542, 502 P2d 1385 (1972), it was held that commissioners of the Eugene Water and Electric Board were personally liable under ORS 294.100 to reimburse the board for expenditures which they authorized to advocate passage of measures affecting that municipally owned utility. Thus, it is clearly beyond the authority of the district or any school official to direct printing and dissemination of material, in a letter, pamphlet, administration publication or school news

paper, advocating or opposing election of any person or passage of any measure. This would be as true for elections unrelated to the school district as for school district elections.

But would this also be true if the district merely authorized students in their own discretion to take editorial positions? We think not.

As a perhaps analagous example, it seems obvious that the district could not evade the prohibition by authorizing an employe responsible for publication of a district newsletter to "independently" take an editorial position on a school district election. But we find several grounds for distinction between the district employe's editorial and an editorial written by a student newspaper editor. One obvious distinction is between the status of a district employe and a student. Although a student editor is in some senses an "employe" and may even receive pay, his or her student status is substantially more significant. But the most important distinction is that the purpose of a district newsletter is to inform the general public of the operations of the district; the purpose of a school newspaper is to furnish a learning experience to students, and to convey information primarily to other students rather than to the general public. A good school newspaper will also be designed as a forum for dissemination of ideas and opinions, both in editorial columns and in letters to the editor.

It is clear that affording an employe who edits a district newsletter a forum for the expression of his or her personal political views is not a proper purpose for which a school district may spend public money. It seems equally clear that supporting a school newspaper as a learning tool for students, and as a student forum for the dissemination and free expression of ideas, is a legitimate school district purpose.

The school newspaper could serve as a learning tool if it contains nothing save the reporting of sports results, times and places of meetings and other news of the school. The district could, as we have stated, establish a policy limiting the paper to such a purely reportorial function. The district could also restrict editorials to specified subject areas. For example, the district might permit editorials dealing with school or community issues, but forbid those dealing with foreign policy. But the newspaper will be a much better learning tool if it is also a communications medium for controversial topics. Cf . Zucker v. Panitz , supra . Obviously, the educational benefits provided by the school newspaper are much greater if students are allowed a high degree of participation in setting editorial policies, and a high degree of independence in selecting and editing particular articles or comments. Surely it is as desirable for students to have the opportunity to develop their critical faculties and their ability to analyze issues before the school and community, as it is to teach the mechanics of spelling, proofreading and asking who -

what - when and where.

Accordingly, we conclude that a school district may authorize its school sponsored student newspaper to take editorial stands on political issues. Although such a policy could be construed as an authorization to spend public funds for a political purpose, we believe the better analysis would deem it an authorization to spend public funds to provide a vehicle for student learning through the expression of student ideas.

Some cautions are in order. If a teacher dictates or strongly influences an editorial decision, it becomes a case of district money being spent for the dissemination of the teacher's (or even the district's) views, rather than the students'. If editorial policy imposed by the district (or school) requires or tends to result in one-sided treatment of issues, it is quite likely that the equal protection requirements of the Fourteenth Amendment would be held to have been violated. It is possible, though less likely, that a violation of equal protection would be held to exist if the student editor independently adopted one-sided policies and did not provide an opportunity for opposing views to be heard.

We assume that a school newspaper will be subject to guidelines or supervision designed to assure fairness and good taste and to protect against liability for defamation. If the district adopts a policy allowing editorial freedom, it would be good policy, although perhaps not legally required, for

those guidelines to require opportunity for rebuttal by students of opposing views, to eliminate any possible Fourteenth Amendment objections.