Monday, August 14, 2017

Missouri School Censors Gay Students and Then Apologizes, But Is It Still Missing the Point?

Local news reports that a Missouri high school censored the yearbook comments of two openly gay students.  The yearbook allows seniors to write a quote or statement under their picture, which becomes part of the published yearbook.  One student wrote, “Of course I dress well. I didn’t spend all that time in the closet for nothing.”  The other wrote, “If ‘Harry Potter taught us anything, it’s that no one should have to live in the closet.”

Without telling the boys, the school redacted those statements from the yearbook.  After being called out, the principal issued this explanation:

District administrators were made aware of concerns regarding the removal of senior quotes from the school yearbook. Each year, graduating seniors are provided an opportunity to pick a favorite quote to be placed in the yearbook. In an effort to protect our students, quotes that could potentially offend another student or groups of students are not published. It is the school’s practice to err on the side of caution. Doing so in this case had the unintentional consequence of offending the very students the practice was designed to protect. We sincerely apologize to those students.   All KSD staff understand the importance of inclusion and acceptance especially in an educational setting. We work diligently to help every student feel safe, supported, and included. District staff participate in ongoing training around issues of diversity and support student organizations that do the same. That being said, we acknowledge our mistake and will use it as a learning opportunity to improve in the future.  

Two things strike me as off in this statement.  First, I see nothing offensive about what the students said.  It may be that some students at the school object to homosexuality, but that does not make the students' statements offensive in an of themselves.  As one of the gay students suggested, this has little to do with offensive speech.  Rather, the district “mak[es] me feel like you’re ashamed of having a gay student.”  In other words, it is hard to imagine a legitimate reason for striking these statements in the first place.  Who exactly made the decision and why?  

Second, what exactly is the district admitting to be a "mistake" and "learning opportunity"?  Is the mistake not letting the students know their statements would be redacted or is it the redaction itself?  If it is the former, the district is missing the point.  If it is the latter, it seems the district can take corrective action now.  It can hand out stickers, inserts, or something to be placed in the yearbooks to correct the error.  Since they don't suggest that correction, I wonder if they don't see the real mistake.  If so, there is still a problem.

I suspect the district misread its cheat sheet on Supreme Court law.  The Court decided a school newspaper case, Hazelwood v. Kuhlmeier, in 1988.  In it, the Court held that the district could exercise editorial control over the school newspaper, reasoning that the newspaper was part of the school curriculum and represents school-sponsored speech.  Thus, the school could exercise style and content control so long as its actions were related to "legitimate pedagogical concerns."  

The Missouri school might think that the case fits because both newspapers and yearbooks are both school publications, but the school's concern with these boys' statements doesn't seem to have anything to do with pedagogical concerns of the sort recognized in Hazelwood.  There, fact checking, balanced statements, mature subjects, confidentiality, and the like were all at play.   Also, this section of the yearbook seems far more like an open forum than speech that might be construed as the school's.  The school refers to "offensiveness," but that doesn't sound like pedagogy.  Offensiveness falls under the Court's decision in Bethel v. Fraser, but there the speech was deemed to be lewd, vulgar, and plainly offensive. Applying this standard to the boys' yearbook statements is even more problematic.  Even if I am wrong and they are offensive under some rationale, there is no way they are "plainly offensive."

Getting the law right is no easy thing for schools, so I don't mean to beat them up too much.  But the difficulty of getting it right cannot be an excuse for a school to do whatever it wants and make it rationales and excuses after the fact.

http://lawprofessors.typepad.com/education_law/2017/08/missouri-school-censors-gay-students-and-then-apologizes-but-is-it-still-missing-the-point.html

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