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Wednesday, October 13, 2004  

Law: School rejects gun photo

Schools. Guns. Perhaps there was some time in history when the the two words together did not engender anxiety. But, in contemporary America, where gun violence is so common most of us have come to take it for granted, that is not so. Numerous shootings at schools, ranging from a killing by a six-year-old to multiple cases involving teenagers, have convinced most of us that guns don't belong in schools. Let's treat refusing to allow students to bring guns to school as not open to argument, as it should be. But, what about the pupil who takes the image of a gun to school? An episode in New Hampshire raises the question.

CNN reported on the situation.

LONDONDERRY, New Hampshire (AP) -- The school board has voted to ban a photo of a student from the senior section of his high school yearbook because he is posed with a shotgun.

But Tuesday's unanimous vote also backed a compromise: Blake Douglass can have the photo published in a "community sports" section, and a new photo -- without the gun but featuring other elements of skeet and trap shooting -- can appear in the seniors' section of the Londonderry High School yearbook.

The compromise wasn't good enough for Douglass, who wanted his senior photo in traditional sportsman's pose, wearing an oxford shirt, navy vest and holding the shotgun over his shoulde

. . .Last month the yearbook staff, adviser, principal and superintendent chose to bar the photo from the yearbook, saying the firearm was inappropriate

The youth says he does not have a political agenda; just a preference for how he is remembered. However, the National Rifle Association is said to be paying for a legal challenge to the school's decision. One must wonder if the NRA foumented the conflict. But, even so, the scenario raises interesting issues of freedom of speech.

The basic rule for what children can bring or wear to school is clear. They are not to bring or wear anything that is disruptive or dangerous. The Supreme Court expressed established that white line in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 507 (1969). However, the matter of images is murkier. Douglass is not seeking permission to expose others to a firearm. He is merely seeking to expose them to an image -- a positive image some would say -- of a firearm. Should the limited right to freedom of expression pupils in public schools have include the image of an object many people consider inherently dangerous? Does it matter that the school itself is being made to participate in presenting the photograph of the gun, since the image would appear in a yearbook it publishes? What about the reality that images of firearms doubtlessly appear in books, films and other media offered in the school? What weight should be given to the fact that those images are part of the curriculumn and Douglass' photograph of himself with a gun isn't?

The issue of who controls content in student publications was put to test in Hazelwood School Dist. v. Kuhlmeier, 484 U.S.260 (1988). Students argued that they should determine whether stories about a divorce and teen pregnancy appeared in a school newspaper. The high court disagreed, distinguishing the case from Tinker, which allowed students to wear armbands protesting the Vietnam War.

The question whether the First Amendment requires a school to tolerate particular student speech -- the question that we addressed in Tinker -- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

SCOTUS concluded that officials are free to censor material in school-sponsored publications if the speech is not of a level of competence they find acceptable, gives the impression of representing the views of the school, or is inappropriate because of the age and level of maturity of the pupils. The rule to be gleaned from the case is that educators' control educational materials, including newspapers, and, one assumes, yearbooks.

Another method of approaching this scenario is to consider that the school can regulate a student's speech in regard to time, place and manner. That would allow officials to bar the picture of the firearm. The compromise the school offered, placing the picture of Douglass with his rifle in a special sports section, seems to be an effort to apply time, place and manner rules. Such placement lets readers of the yearbook know that any approval of firearms implied is in the context of shooting as a sport. A third good argument is that the school would be sending a message of approval of firearms if it agreed to publish the photograph. Neutrality on the issue would be maintained by not publishing the image.

This fact situation is unusual. Attention, with good reason, has been focused on keeping disruptive or dangerous objects out of schools, not imagery. If the threat of a lawsuit turns out to be more than intimidation, it seems doubtful the claim will make it pass the first motion to dismiss. Kuhlmeier's precedent that schools are not required to support particular student speech means that Blake Douglass is entitled to his opinion, but the school district has no duty to allow him to express it in the yearbook at Londonderry High School.

Reasonably related

Read the Supreme Court's decision in Hazelwood School Dist. v. Kuhlmeier, here.

8:30 AM