Guest Post: Free speech and the college campus: The spread of Hazelwood is troubling

By Yevgeny Shrago

Frank D. LoMonte is the executive director of the Student Press Law Center. Before joiningthe SPLC, he practiced with the law firm of Sutherland Asbill & Brennan, he clerked for twofederal judges, and he worked as an investigative journalist and political columnist.

When 51-year-old Alabama nursing student Judith Heenan repeatedly complained to her instructors about inequities in the grading and disciplinary system in her graduate program, she anticipated some disapproval.

What she didn’t anticipate was being thrown out of the program for complaining – and then being told by a federal district judge that her complaints were entitled to no greater constitutional protection than those of a 15-year-old high school newspaper columnist.

Heenan’s case, which the Eleventh Circuit declined to review last year, citing defects in her pro se appeal filing, exemplifies how aggressively federal courts are applying the Supreme Court’s Hazelwood standard to settings far beyond those that the Court envisioned a generation ago.

In 1988, the Court decided in Hazelwood School District v. Kuhlmeier that a Missouri high school could lawfully remove articles, over the objection of the student editors, from a newspaper produced as part of a graded laboratory exercise. Absent evidence that the newspaper had been held open as a “public form,” the Court determined, a school could censor its content for any justification “reasonably related to legitimate pedagogical concerns.”

Until Hazelwood, the balance between school authority and individual liberty was governed by the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District. The Tinker Court struck a sensible middle ground, prohibiting content-based restraint of speech unless students substantially disrupted school operations.

But in Hazelwood, the Court recognized lesser protection for speech that the school is asked to subsidize affirmatively: “[T]he standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression.”

When Hazelwood was decided, First Amendment advocates comforted themselves that the ruling affected only minors enrolled in K-12 schools – and then only in the limited “curricular” setting, such as a class-produced newspaper. That was a logical reading of the case and, as time has proven, an overly optimistic one.

With the exception of speech on students’ own clothing, Hazelwood is increasingly the default standard governing speech in all forms and at all levels of education. This extension of the Hazelwood doctrine entirely ignores the Supreme Court’s underlying rationales, and it threatens to undermine – not advance – the instructional mission of higher education.

The Hazelwood majority emphasized the youth of the speakers and the vulnerability of captive listeners who might be exposed to adult themes (in that case, news stories about divorce and teen pregnancy) beyond their level of maturity. And the Court emphasized the school’s need to “disassociate” itself from politically controversial speech that listeners might reasonably mistake for the official voice of the school.

None of those rationales even arguably applies to a private disagreement between a middle-aged graduate student and her professor. Because college campuses are accepted as gathering places for the exchange of ideas, colleges have little need to “disassociate” themselves from any individual speaker’s message. Reasonable listeners do not ascribe to the college the views of their students – and certainly not those of students criticizing the curriculum.

Yet court after court has applied Hazelwood to uphold institutional restrictions on (and at times punishment for) the speech of postsecondary students – even in nonpublic conversations with their instructors.

Earlier this year, the Sixth Circuit decided that Hazelwood governed the case of an Eastern Michigan University student studying to be a counselor. She was expelled from the counseling program after informing her instructor that, because of her strong Christian beliefs, she could not in good conscience counsel a student about homosexuality.

“Nothing in Hazelwood suggests a stop-go distinction between student speech at the high school and university levels,” the Sixth Circuit concluded in Ward v. Polite, “and we decline to create one.”

In Ward, the Sixth Circuit joined three other federal circuits – the Seventh, Tenth and Eleventh – in holding that Hazelwood determines when student speech is constitutionally protected even at the postsecondary level. Only the First Circuit has categorically rejected the Hazelwood standard for college students.

The creep of Hazelwood onto college campuses is troubling because, in practice, courts regard Hazelwoodas a “rational-basis-minus” level of review, under which censorship decisions need only reside in the deferentially viewed vicinity of reasonableness.

For a recent article in the University of Baltimore’s Journal of Media Law & Ethics, St. Louis University communications professor Dan Kozlowski reviewed every appellate opinion relying on Hazelwood. He concluded that “in most circuit court decisions thus far, schools need little more than a vaguely plausible explanation (and) an articulated good faith basis to pursue some sort of educational objective” to legitimize censorship.

Beyond constitutional doctrine, there are significant practical considerations that counsel against further extension of Hazelwood.

By its terms, Hazelwood applies equally to the “curricular” speech of teachers as well as students. Courts repeatedly have relied on Hazelwood to dismiss the First Amendment claims not only of teachers but also of adult guest speakers visiting K-12 classrooms (e.g., Busch v. Marple Newtown School District, the Third Circuit’s 2009 ruling that, under Hazelwood, a school could censor a parent who brought a Bible to her son’s kindergarten class for story-reading hour).

That level of control would be unthinkable in college, where principles of academic freedom are widely accepted to give instructors the latitude to air provocative and even offensive topics. But the inescapable conclusion – that a student could be disciplined for speech that would be constitutionally protected if uttered by a nonstudent – is equally unsustainable. If words are inappropriate for a college audience and might be confused for the government’s speech when uttered by a student, then they are doubly so when said by an adult authority figure.

The devastation that Hazelwood has inflicted on high school journalism should give pause to anyone inclined to delegate comparable censorship discretion to college administrators.

Although many standouts continue producing courageous work, post-Hazelwood high school newspapers typically are bleached of controversy, forbidden even to acknowledge that young people might be gay, abuse drugs, or otherwise deviate from Lake Wobegon wholesomeness. School administrators regularly censor “whistle-blowing” journalism on topics ranging from unsanitary bathroom conditions to hazing in sports, merely because it might cause controversy.

Now, envision that degree of censorship applied to the college media, which in many markets is the dominant (and sometimes only) source of local news coverage serving the entire community.

While some college media outlets may evade censorship because they are independently incorporated and self-financed, that model is a rarity. Increasingly more common are campus-based “journalism labs,” such as at the University of North Carolina-Chapel Hill and at the University of Illinois-Urbana, in which students cover community news for academic credit under the direction of an instructor who assigns grades – in other words, the “curricular” setting that invites theHazelwood level of administrative control.

In an October 2011 report, “Shaping 21st Century Journalism,” the New America Foundation called on colleges to accept primary responsibility for meeting the information needs of under-served communities, just as teaching hospitals meet the primary health care needs of uninsured and indigent patients. The New America report was echoed in an August 2012 “open letter” to college presidents from the nation’s leading philanthropic journalism funders, who challenged colleges to reinvent journalism education based on the teaching hospital model.

If college journalists are to supplant salaried professionals as the primary providers of news to their communities, the public cannot be asked to depend on journalism that has been, with the blessing of the courts, “sanitized for their protection.”

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