Boston College Law Review Volume 40 Article 2 Issue 2 Number 2 3-1-1999 Yeo v Lexington: Abridging Rights of Publication in the Student Press Benjamin Wattenmaker Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the First Amendment Commons, and the Fourteenth Amendment Commons Recommended Citation Benjamin Wattenmaker, Yeo v Lexington: Abridging Rights of Publication in the Student Press, 40 B.C.L. Rev. 573 (1999), http://lawdigitalcommons.bc.edu/bclr/vol40/iss2/2 This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. NOTES YEO V LEXINGTON: ABRIDGING RIGHTS OF PUBLICATION IN THE STUDENT PRESS INTRODUCTION Like many parents of high school-aged students enrolled in the public schools of Lexington, Massachusetts, Douglas E. Yeo objected when the town voted to adopt a condom distribution policy in Lex- ington High School ("LHS" ). 1 He responded by forming a political action group to oppose the policy arid submitting pro-abstinence ad- vertisements for publication in the official LHS yearbook ("the year- book") and newspaper ("the Musket"). 2 When student editors of both publications declined to run Yeo's advertisements, citing unwritten policies prohibiting the acceptance of political advertisements, Yeo claimed that his First and Fourteenth Amendment rights had been violated and threatened to sues Upon the editors' issuance of their final refusal to publish, Yco brought an action against his town and his son's high school principal in federal district court.' Both the local press and the district court decision that granted the defendants' motion for summary judgment portrayed plaintiff Yeo as overly litigious and moralistic. 5 As Federal District Court Judge Richard Stearns noted in his opinion, "fa) t. the end of the day, one wonders whether this litigation was necessary."6 Several editorials pub- See Yco v. Town of Lexington, 131 F.3d 241, 244 (1st Cir. 1997), cert. denied, 118 S.Ct. 2060 (1998). 2 See id. at 244, 245. See id. at 245, 246, 248. See id. at 248. See Rochelle C. Cohen, Students Fight on for Press Freedoms, Bos.rox HERALD, Dec. 17, 1997, at 35. The editorial staled in part, "Memo to Douglas Yea: Next time you want to get your abstinence message over to teenagers, rent a billboard But for heaven's sake don't make a federal case out of it . This was a piddling little squabble that escalated into a federal court case because that's how things arc these days." Id. Yea v. Town of Lexingtcm, No. 94-10811•RGS, at 18 (D. Mass. Apr. 22, 1996), 573 574 BOSTON COLLEGE LAW REVIEW Vol. 40:573 lished in the Herald characterized this litigation as "a piddling little squabble" and plaintiff Yeo himself as "spoiling for a fight." 7 In fact, good reasons existed for wondering whether this litigation was neces- sary. Yeo did not have to bring a legal action to communicate his pro-abstinence message to the LHS community. LHS student editors offered to, publish his message if he would either amend the content of his advertisement or write a letter to the editor of the newspaper, where editors felt his political message would be more appropriate. 8 This litigation seems unnecessary for another reason as well—the media in question are the high school newspaper and yearbook. It seems inherently wrong for an outsider to dictate the content of such periodicals over the objections of the school administration, faculty and student editors. But in the four opinions spawned by this litigation, only First Circuit Justice Sandra Lynch (in dissent) addressed this issue head-on: "It is passingly strange to even think of a student newspaper as a public forum."° Further, she alone observed that the educational process may be least disrupted by permitting the student editors' decision to stand.'° In its en banc decision, the First Circuit almost completely failed to address the special considerations attendant to litigation arising in the context of public high schools." Yeo's suit alleged that the publications' refusal to print his adver- tisements constituted a violation of his rights to free speech and equal protection under the Constitution." This litigation therefore broached two important issues and complex constitutional doctrines. The court first addressed whether the decisions of the student editors constituted an action of the state, because the court cannot impose obligations under the First and Fourteenth Amendments to the Constitution on private actors without a finding of state action." Second, the court grappled over whether student publications constitute public fora— that is, government-owned areas such as streets or public parks in 7 Cohen, supra note 5, at 35. 8 See Yea, 131 F.3d at 246. 8 Yen v. Town of Lexington, No. 96-1623, 1997 WL 292173, at *34 (1st Cir. 1997) (Lynch, J., dissenting). 18 See id. at *35. "There is a legitimate interest in preventing disruption of the educational process. The school and its students have an interest in maintaining some form of harmony in its student publications; avoiding use of its advertising pages to convey political or advocacy Inessages may serve this end. The school and its students also have an interest in fostering independent thought in student editors and may choose to do so by respecting those students' independent conclusions." Id. " See generally Yea, 131 F.3d at 241, 250. 12 See id. at 248. IS See infra text accompanying notes 124-86. March 19991 STUDENT RIGHTS AND STUDENT' PRESS 575 which members of the public traditionally have a right to express their opinions without government restrictions." This Note argues that although the First Circuit's en banc decision was correctly decided, its reasoning is flawed because it failed to ad- dress the special considerations of controversies arising in the context of a public high school.'5 The analyses of whether the student editors' refusal to publish Yco's advertisement constitutes state action, and whether student publications qualify as public forums, cannot be meaningfully discussed without considering the role of educators in controlling the content of student speech in classroom or school ac- tivities. Part I of this Note examines important precedent on the state action and public forum doctrines. 16 Part 11 analyzes the Yeo case, including the recent en banc decision of the Court of Appeals for the First Circuit applying the state action doctrine to the editorial decisions of student editors.° Part. III situates the doctrines of state action and public forum in the context of current pedagogical theory, as devel- oped by legal scholars and applied in Supreme Court opinions.' 8 Part IV of this Note examines the First Circuit's en banc decision in light of the pedagogical theory currently favored by the United States Supreme Court. In this Part, the Note argues first that the decisions made by student editors of school-sponsored publications can always be attributed to the state, because the role of educators in formulating content is substantial whether or not they actively partici- pate in the decision giving rise to litigation.' 9 Second, this Note argues in this Part that the LHS yearbook and Musket do not qualify as traditional public fora. 2° Rather, they are limited public fora that are appropriately used to communicate only specific kinds of informa- tion—specifically, the information which is consistent with the peda- gogical philosophy of the school.2' Therefore, LHS student editors may constitutionally refuse to publish Yco's advertisement if they reasonably believe that it does not represent values consistent with the school's educational mission. 22 14 See id. 15 See, e.g., lianiwood Sch. Dist. v. Kuhltncier, 484 U.S. 260, 266 (1988); Bethel Sch. Dist. No, 403 v. Fraser, 478 U.S. 675, 682 (1986). 141 See infra text accompanying notes 23-123. 17 See infra text accompanying notes 124-86. 18 See infra text accompanying notes 187-241. 19 See infra text accompanying notes 242-90. 20 See infra text accompanying notes 291-307. 21 See infra text accompanying notes 291-307. 22 See infra text accompanying notes 291-307. 576 BOSTON COLLEGE LAW REVIEW [Vol. 40:573 1. BACKGROUND The First Amendment provides that Congress may not restrict an individual's freedom of expression. 23 This protection has been ex- tended to preclude all branches and agencies of the state from infring- ing upon the First Amendment rights of a private citizen.24 The First Amendment only protects freedom of speech against actions of the government; therefore, a citizen must first demonstrate that the al- leged violation occurred at the hands of the state. 25 If a plaintiff can establish this notion of "state action" regarding a First Amendment cause of action, the judiciary applies a public forum analysis to deter- mine whether the state actor violated the citizen's right to freedom of expression.26 The public forum doctrine requires the court to deter- mine (1) the nature of the forum at issue and (2) whether the state's regulation of a citizen's access to the forum represents a violation of that citizen's First Amendment rights." A. State Action Doctrine Almost all of the individual rights afforded by the United States Constitution, including the entire Bill of Rights, are judicially enforce- able only against state or federal government action. 26 The United States Supreme Court has recognized that purely private action is not subject to the requirements of the First and Fourteenth Amendments.