Does a school violate students’ free speech rights if they ask to pull a pregnancy clinic advertisement from the school’s student newspaper?

There are three types of forums that student newspapers can fall under:

(1) public forum

(2) limited public forum

(3) nonpublic forum. 

Public forums are subject to the least amount of control by school administrators, limited public forums are next, and finally, schools possess a great level of control over nonpublic forums. The courts have said that school newspapers may be deemed to be public forums if they have opened their doors to general use by the public by policy or practice. Moreover, a limited public forum is one the school may have some control over, such as doing prior review, but the school does not have endless control over the newspaper. Finally, a newspaper that is a nonpublic forum is one that school authorities can completely control, whether it be the content, the amount of prior review, or the pictures that are published.

Now, these categories aren’t all “ride or die.” A school can, over time, switch from one type of forum to another. If a school claims to have switched from one type of forum to another, judges try to see if, based on what rules were in place or habits the school followed, whether the school had a “clear intent” to transition from one forum to another. These normal practices, or habits formed by the school, really make an impact on whether the school is one type of forum or another. 

In an attempt to help make these distinctions clear, the court set up factors to figure out whether a forum is public or limited. Specifically, the court looks at: (1) whether the school newspaper was made as part of a class, (2) whether students receive grades for taking part in the program, (3) whether there is a faculty supervisor, (4) whether the school has ever produced the paper outside of its curriculum (think extracurriculars instead of classes), (5) how much control administration like the principal or your faculty advisor have, and (6) what any school board, or board of education policies say. These factors are essentially a lot of words that ask, “so what do they do at your school normally?”

What exactly is a “legitimate pedagogical concern?”

Remember when you were younger and you asked your parents why you had to do something, and the best they could do for a response was “because we said so”? We know, this seems a lot like that. But, as unlikely as it sounds, there’s more behind the legitimate pedagogical concern than just adults trying to control what you do. 

A legitimate pedagogical concern must be just that: legitimate, or real. It is more than teachers or administrators feeling queasy or uncomfortable over the subject matter at hand. Those are personal concerns, not concerns dealing with a school’s mission to provide a productive learning environment. Let’s not get too crazy right away though. Vulgar, prejudiced, or profane speech, and speech unsuitable for immature audiences may be censored by a school. So, don’t get any wild ideas. 

We didn’t technically write the ad, does that make a difference on whether it is student speech? 

Whether the students actually created the ad, or just published the ad that was given to them is probably not an issue The fact that students decided to publish and distribute the ad in a student newspaper (again, depending on the type of forum it is) leans towards it being considered student speech. So, it really doesn’t matter whether you guys wrote the ad or not. The school still may want to censor it because they think publishing an ad about a pregnancy clinic is inappropriate for a high school student audience.

Okay, we’re done with the basics, can you answer our question now? 

It’s likely that your school administrator is violating students’ First Amendment Free Speech Rights by asking the school’s student newspaper to pull The Pregnancy Advertisement in the same month that the administration implemented prior review. 

Remember, we said that the school administrator must have a legitimate pedagogical concern in order to censor speech in a student newspaper. AND, to be subject to prior review in the first place we said the school administrator “by policy or by practice” needed to show your school’s newspaper was not a public forum. 

Let’s try and see what kind of forum the school’s newspaper is. First, let’s look at the type of forum the school’s newspaper is in. Let’s say, the students are part of an official journalism course where they receive grades and credits for assignments related to the newspaper—this leans toward being a public forum. Let’s go further, and say the newspaper accepts letters to the editor from community members, and all final decisions regarding content are made by a student editorial board. Again, this leans toward a public forum. The school here had no history of prior review, and the school staff manual states that the school’s student newspaper is in an “open” or public forum, and it has run this particular ad for eleven years. Group these factors together, and this newspaper is a public forum and not subject to prior review. Hurray! 

As for legitimate pedagogical concerns, in this case, you’ve told us that your principal was uncomfortable with this ad because parents were upset over it. As much as the principal wants to please parents, that’s not a legitimate reason to pull an advertisement. Therefore, because the school does not possess a legitimate public concern for pulling the ad and because the newspaper is likely a public forum, the school administrators would not have the authority to pull the pregnancy clinic ad from the newspaper.