SMSD’s Plan to Protect Student First Amendment Rights

SMSD finalized a new censorship policy on Aug. 12 after being required to add new language following a lawsuit settlement between the American Civil Liberties Union (ACLU) and the district after the district was accused of infringing on the students’ First Amendment rights.

The lawsuit followed the nationwide walkout protesting gun violence on April 20, 2018, where two students from Shawnee Mission North and one from Hocker Grove Middle School commented on gun control and photographed the protest. Administrators ordered them to stop photographing and speaking in the protest, as they deemed the topic too controversial. The administrators threatened discipline and confiscated the students’ journalism photography equipment.

On June 24, members of the SMSD board announced the new policy to the public during a board meeting after adding the required language which emphasized that administrators can’t ban student journalists from on-campus events open to the student body. The district also wanted to set boundaries on non-school sponsored, or “underground” newspapers such as the Eastonian and give the district power to discipline the authors of the underground publications.

However, this first reading of the new policy was restrictive for both established and underground publications and gave the administration power to supervise and restrict what articles were published in both types of publication. This policy received a lot of backlash from students and First Amendment groups.

At the July 8 board meeting, the Harbinger’s Online Editor-In-Chief, Ben Henschel, along with two other SMSD student journalists, spoke out against the new policy and the importance of not having administrative censorship.

“[Journalism] keeps people in check, that’s the point,” Henschel said. “People know that what they’re doing will be talked about if it needs to be. That’s the importance of newspapers that are willing to cover the hard issues if it needs to. We get treated like real journalists which means we have real freedoms, but also means we can’t be messing up.”

At the final reading on Aug. 12, the policy was edited to sound similar to the initial policy (Kansas Student Publication Act) — stories that are obscene or libelous and will cause a disruption to the school day cannot be distributed. This policy still gives the district power to censor underground newspapers. 

According to Henschel, the final altering of the policy was influenced by the attendance and speakers at the July 8 meeting and the emails and comments from organizations like the Student Press Law Center.

In addition to editing the censorship policy, the settlement also required all district building administrators and building principals to attend civil rights training, the district to send apology letters to the Plaintiffs and the development of a new policy for non-school sponsored events. 

The civil rights training took place on July 25 and was presented by Mark Johnson, an attorney who focuses on constitutional law at Dentons Law Firm. 

During the training, Johnson presented a lesson on the history of the U.S. Constitution and different cases which have shaped the student First Amendment laws, such as the Tinker vs. Des Moines School District case, where students were expelled for wearing black armbands in protest of the Vietnam War.

Johnson focused on the black armband case because it resulted in the Tinker Substantial Disruption test which states “conduct by the student…[which] materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech,” according to Johnson’s civil rights power point.

The most common practice of this standard is students posting about other students on social media and trying to balance students’ First Amendment rights with a safe school environment. Rachel England, the district’s attorney, says the most common call she receives is parents approaching her with a printed Snapchat or Instagram post.

“If we think [the post is] going to cause a substantial disruption, we can discipline the students, but that makes you predict the future,” England said. “And I think school administrators are well aware that students have First Amendment rights but when it actually comes down to split minute decisions, it’s really difficult to predict things like will there be a substantial disruption.”

In addition to the training, the district has also adopted a new policy for non-school sponsored, student-organized events, such as protests. The district now asks that students approach administration to organize a time and location for the event so the district can be sure to have appropriate safe-guards in place. If a spontaneous protest occurs, the district is now able to redirect it and plan the protest for a different day instead.

Lauren Bonds, the ACLU attorney who sued the district on behalf of the three students at the walkouts, believes the new policies and training will decrease First Amendment conflict in the future, such as the conflict following the 2016 election when the district breached teachers’ freedom of expression by banning them from wearing safety pins in protest of President Trump’s victory.

“[The lawsuit was caused by] a lack of information [and a] lack of understanding of what the law requires and permits,” Bonds said. “So that’s really what we’re hopeful will come out of that training is that everyone will have a better handle on what student protections are and what the school can do in order to maintain order.”

Following these events, Bonds foresees the district taking responsibility for their actions and handling Civil Rights mix-ups better.

“We’re hopeful this is perhaps a new era for the Shawnee Mission School District,” Bonds said. “The reason this lawsuit ended up getting filed is because the administration wasn’t willing to acknowledge its faults and take the steps, so I think we’re definitely in a different place with the new superintendent and we’re optimistic about the district’s new attorney as well. Hopefully we’ll be able to resolve it with just a few conversations and we can count on the district to take control of those actions.”