School District Requests Iowa Supreme Court Review of State “Anti-Hazelwood” Law

By on December 2, 2011

The Student Press Law Center reports that the Allamakee (Iowa) Community School District on Monday filed a "petition for further review" to the Iowa Supreme Court, asking the state’s highest court to weigh in on the Iowa Student Free Expression Law (ISFEL). This petition follows a November 9, 2011, ruling by the Iowa Court of Appeals in the case of Lange v. Allamankee Community School District.

The Iowa Student Free Expression Law was passed in 1989 in response to the United States Supreme Court decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Court distinguished (1) K-12 student publications that "by policy or practice" have been opened as fora for public expression, which demand full First Amendment protection, from (2) K-12 student publications operating within the curriculum, which are subject to censorship "reasonably related to legitimate pedagogical concerns." FIRE has blogged about Hazelwood and its impact on numerous occasions, and the SPLC has an excellent white paper on the case.

As the Court of Appeals noted, Iowa lawmakers passed the ISFEL in response to Hazelwood, determining that they would grant students full First Amendment protections, even at the K-12 school level. Lawmakers in several other states passed similar laws that same year. Surprisingly, in the twenty-one years since its passage, the scope of the ISFEL has never been litigated in Iowa courts before this case.

On petition for further review, the Allamakee School District contends first that the characterization of the ISFEL by the appeals court as "anti-Hazelwood" was an impermissible decision to be made by a lower court, and that under Iowa statute it was better left up to the Iowa Supreme Court. More critically, perhaps, the School District contends that the content in question falls into the exception written in to the ISFEL that prohibits publications "which encourage students to … [c]ommit unlawful acts … [v]iolate lawful school regulations…. [or c]ause the material and substantial disruption of the orderly operation of the school."

Thus while the School District appears not to challenge the characterization of the ISFEL as "anti-Hazelwood" on the merits, the School District alleges that an April Fool’s Day article entitled "Cheerleaders on Roids" might encourage steroid use, and that photographs of students in headbands and hoodies might encourage violations of the school’s dress code. If this were true, the speech in question might fall within the exceptions to the ISFEL. Needless to say, the Court of Appeals correctly noted that "under any definition of the term ‘encourage’, the content at issue did not fit within the narrow categories of expression prohibited by [the ISFEL]."

This case is important for K-12 students in Iowa, because it will help determine if the ISFEL provides real protections to students, or if the exceptions to it are so broad as to render it a dead letter.