Free speech on public college campuses horizon

Thursday, January 2, 2003

The U.S. Supreme Court declined on Feb. 21, 2006, to review Hosty v. Carter (05-377), a controversial decision out of the 7th U.S. Circuit Court of Appeals that greatly worries student-press advocates. In June 2005, the full 7th Circuit ruled 7-4 in Hosty v. Carter that a school official at Governors State University in Illinois was not liable for effectively shutting down the Innovator, the student newspaper that had published several articles critical of the school administration.

Those concerned with student-press freedoms hoped the Court would take the case and rule, once and for all, whether college and university newspapers should be governed by the Court’s 1988 high school press-censorship case Hazelwood School District v. Kuhlmeier.

The 7th Circuit decision had sent shock waves through many free-speech advocates who believed that Hazelwood was confined to the high school press. “The decision gives school officials a roadmap for setting up an environment where censorship is permissible and that is something the law never allowed before,” said Mike Hiestand, an attorney with the Student Press Law Center.

The Hazelwood problem
In Hazelwood, the Supreme Court determined that high school newspapers — unless they were by policy or practice considered to be public forums free from administrative control with students making content decisions — were subject to a high degree of school control. The Court established that school officials could censor student newspapers and other school-sponsored student expression as long as their reason for censorship was reasonably related to legitimate pedagogical (educational) concerns. The Court broadly defined such concerns to include schools’ wanting to dissociate themselves from student articles that were “poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” The Hazelwood Court went so far as to say that a school could dissociate itself “with any position other than neutrality on matters of political controversy.”

The Court in Hazelwood stated in a footnote that it expressed no opinion on whether its decision applied at the university level. Many observers assumed at given that the vast majority of college students, as opposed to high school students, are the age of majority, Hazelwood would not apply in the university setting. Shortly after Hazelwood, the 1st U.S. Circuit Court of Appeals wrote in Student Government Association v. Board of Trustees of the University of Massachusetts (1989) that Hazelwood “is not applicable to college newspapers.”

The federal district court and original three-judge panel of the 7th Circuit followed this line of reasoning in their opinions. For example, the three-judge panel in 2003 wrote: “Hazelwood’s rationale for limiting the First Amendment rights of high school journalism students is not a good fit for students at colleges or universities. The differences between a college and a high school are far greater than the obvious differences in curriculum and extracurricular activities. The missions of each are distinct reflecting the unique needs of students of differing ages and maturity levels.”

These decisions reflected the prevailing wisdom among First Amendment advocates. Ken Paulson, former executive director of the First Amendment Center and now editor of USA TODAY, wrote in a 2003 column: “Courts have repeatedly found that college students — as opposed to teen-age journalists in high schools — have full First Amendment protection, regardless of the source of their funding.” First Amendment Center legal consultant Douglas Lee wrote after the panel decision in a 2003 column that “Hosty therefore may be the beginning and the end of efforts to extend Hazelwood to college campuses.”

That’s why the 2005 decision by the full 7th Circuit was such a shock. It held that Hazelwood applied to the college press. Consider the following statements from Judge Frank Easterbrook’s majority opinion:

Hazelwood provides our starting point.”

“To the extent that the justification [for censorship] depends on … the goal of dissociating the school from ‘any position other than neutrality on matters of political controversy,’ there is no sharp difference between high school and college papers.”

“We hold, therefore, that Hazelwood’s framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools.”

Hazelwood’s framework is generally applicable and depends in large measure on the operation of public forum analysis rather than the distinction between curricular and extra-curricular activities.”

What particularly horrifies student-press advocates is that Easterbrook’s opinion not only held that the Hazelwood framework applied on college campuses but also that “there is no sharp difference between high school and college papers” with respect to education officials’ “goal of dissociating the school from ‘any position other than neutrality on matters of political controversy.’”

Those who support student-press freedom recoil at the idea that college officials could limit a university newspaper from covering controversial political topics.

“The law was clear before this decision that Hazelwood didn’t apply and school officials had to have a hands-off policy with respect to student media,” Hiestand said.

Designated public forums and qualified immunity
The full 7th Circuit applied the “Hazelwood framework” and determined that the Innovator was a designated public forum entitled to greater protection from administrators’ censorial impulses. A designated public forum is one specified by a government body for expressive purposes. For example, the Student Communications Media Board at Governors State had a policy stating that each funded publication “will determine content and format … without censorship or advance approval.” That means that the policy and practice at the university was that generally students, not school administrators, made content decisions for the newspaper.

However, the majority of the full 7th Circuit still ruled that the Governors State official (Patricia Carter) was not liable for monetary damages because she was entitled to qualified immunity, a doctrine that generally shields government officials from liability if they have not violated clearly established constitutional rights. The 7th Circuit majority ruled that Carter was entitled to such immunity because the legal landscape was not clear enough that a reasonable public official would know that her conduct might be unlawful in this situation.

The question becomes whether Hosty v. Carter is that bad a decision for the student press in that the court ruled that the newspaper was a designated public forum and the case dealt with qualified immunity. Student advocates say the decision is still quite harmful because now college administrators can try to argue that certain forms of student expression, including university newspapers, are not public forums entitled to heightened First Amendment protections.

“The decision will open a can of worms on every single college campus as to whether student media are designated public forums,” said Mark Goodman, executive director of the Student Press Law Center in an earlier interview. “I feel confident that when a censorship conflict arises, the first thing the school will say is, ‘This is not a designated public forum.’” If student expression does not constitute a public forum, university officials can censor student expression if they have a reasonable basis for their action — a very deferential standard for administrators to have to meet.

Supreme Court denial, effect
The 7th Circuit en banc decision clearly disagreed with the 1st Circuit and, to some extent, with a 2001 full-panel decision by the 6th U.S. Circuit Court of Appeals in Kincaid v. Gibson, which stated that “Hazelwood has little application to this case.” Conflict among the lower courts is an important factor in whether the U.S. Supreme Court will grant certiorari in a case. Rule 10 of the Rules of the Supreme Court provides that disagreement among the lower courts is an important consideration. However, the rule begins with the cautionary words: “Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons.” Furthermore, the numbers are against any party petitioning for a writ of certiorari, as the Court grants review in fewer than 100 cases each term.

“I just don’t know why they didn’t take the case,” Hiestand said. “It seemed to have a lot of the factors going for it, including a divide among the circuits. It may have been a bit messier than they wanted with the qualified-immunity issue.”

The Court’s decision to deny cert. means that the 7th Circuit’s decision stands as controlling precedent in the purview of that circuit, which covers federal cases arising out of Illinois, Indiana and Wisconsin. The decision is not controlling on federal courts outside the 7th Circuit. In legal-research terms, the decision may be persuasive legal authority, but is not mandatory authority outside those three states.

One effect of the decision will be that student-press advocates and student journalists will press school administrators to ensure that student publications, particularly in the 7th Circuit, are classified as public forums. “We’ve already sent forms out to every school in the 7th Circuit, telling them that the legal landscape has changed and they need to take care of this today,” Hiestand said. On its Web site, the Student Press Law Center explains that Illinois State University and Southern Illinois University declared their student newspapers to be designated public forums in fall 2005. A bill was introduced in the California Legislature on Feb. 24, 2006, to provide greater protections to student journalists. The measure was introduced in response to the 7th Circuit decision.

Another effect of the decision is that it potentially could apply to a whole range of university expression outside the school-newspaper context. Hazelwood itself applies not just to student newspapers but most school-sponsored student expression.

“My belief is that student newspapers are low on the list on campuses in terms of what will be impacted negatively by this ruling,” Goodman said. “It will be other student organizations that have less established history as public forums that will find themselves being censored.”

In sum, the 7th Circuit’s majority opinion in Hosty v. Carter and the U.S. Supreme Court’s inaction in denying cert. have forced student-press advocates to seek public-forum statements and petition state legislators for greater protection.

The 7th Circuit decision, in the words of dissenting Judge Terence T. Evans, imposed “restrictions on free speech rights [that] have no place in the world of college and graduate school.”