{"id":1591,"date":"2012-10-23T20:13:53","date_gmt":"2012-10-24T00:13:53","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1591"},"modified":"2015-10-02T15:22:31","modified_gmt":"2015-10-02T15:22:31","slug":"guest-post-free-speech-and-the-college-campus-the-spread-of-hazelwood-is-troubling","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/10\/23\/guest-post-free-speech-and-the-college-campus-the-spread-of-hazelwood-is-troubling\/","title":{"rendered":"Guest Post: Free speech and the college campus: The spread of Hazelwood is troubling"},"content":{"rendered":"

By\u00a0Yevgeny Shrago<\/p>\n

<\/em>Frank<\/em><\/strong>\u00a0<\/em><\/strong>D.<\/em><\/strong>\u00a0<\/em><\/strong>LoMonte<\/em><\/strong>\u00a0<\/em><\/strong>is<\/em><\/strong>\u00a0<\/em><\/strong>the<\/em><\/strong>\u00a0<\/em><\/strong>executive<\/em><\/strong>\u00a0<\/em><\/strong>director<\/em><\/strong>\u00a0<\/em><\/strong>of<\/em><\/strong>\u00a0<\/em><\/strong>the<\/em><\/strong>\u00a0<\/em><\/strong>Student<\/em><\/strong>\u00a0<\/em><\/strong>Press<\/em><\/strong>\u00a0<\/em><\/strong>Law<\/em><\/strong>\u00a0<\/em><\/strong>Center.<\/em><\/strong>\u00a0<\/em><\/strong>Before<\/em><\/strong>\u00a0<\/em><\/strong>joiningthe<\/em><\/strong>\u00a0<\/em><\/strong>SPLC,<\/em><\/strong>\u00a0<\/em><\/strong>he<\/em><\/strong>\u00a0<\/em><\/strong>practiced<\/em><\/strong>\u00a0<\/em><\/strong>with<\/em><\/strong>\u00a0<\/em><\/strong>the<\/em><\/strong>\u00a0<\/em><\/strong>law<\/em><\/strong>\u00a0<\/em><\/strong>firm<\/em><\/strong>\u00a0<\/em><\/strong>of<\/em><\/strong>\u00a0<\/em><\/strong>Sutherland<\/em><\/strong>\u00a0<\/em><\/strong>Asbill<\/em><\/strong>\u00a0<\/em><\/strong>&<\/em><\/strong>\u00a0<\/em><\/strong>Brennan,<\/em><\/strong>\u00a0<\/em><\/strong>he<\/em><\/strong>\u00a0<\/em><\/strong>clerked<\/em><\/strong>\u00a0<\/em><\/strong>for<\/em><\/strong>\u00a0<\/em><\/strong>twofederal<\/em><\/strong>\u00a0<\/em><\/strong>judges,<\/em><\/strong>\u00a0<\/em><\/strong>and<\/em><\/strong>\u00a0<\/em><\/strong>he\u00a0<\/em><\/strong>worked<\/em><\/strong>\u00a0<\/em><\/strong>as<\/em><\/strong>\u00a0<\/em><\/strong>an<\/em><\/strong>\u00a0<\/em><\/strong>investigative<\/em><\/strong>\u00a0<\/em><\/strong>journalist<\/em><\/strong>\u00a0<\/em><\/strong>and<\/em><\/strong>\u00a0<\/em><\/strong>political<\/em><\/strong>\u00a0<\/em><\/strong>columnist.<\/p>\n

<\/em><\/strong>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.<\/p>\n

What she didn\u2019t anticipate was being thrown out of the program for complaining \u2013 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.
\n
\nHeenan\u2019s case, which the Eleventh Circuit\u00a0declined<\/a>\u00a0to review last year, citing defects in her\u00a0pro<\/em>\u00a0<\/em>se<\/em>\u00a0appeal filing, exemplifies how aggressively federal courts are applying the Supreme Court\u2019s\u00a0Hazelwood<\/em>\u00a0standard to settings far beyond those that the Court envisioned a generation ago.<\/p>\n

In 1988, the Court decided in\u00a0Hazelwood<\/em>\u00a0<\/em>School<\/em>\u00a0<\/em>District<\/em>\u00a0<\/em>v.<\/em>\u00a0<\/em>Kuhlmeier<\/em><\/a>\u00a0that 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 \u201cpublic form,\u201d the Court determined, a school could censor its content for any justification \u201creasonably related to legitimate pedagogical concerns.\u201d<\/p>\n

Until\u00a0Hazelwood<\/em>, the balance between school authority and individual liberty was governed by the Supreme Court\u2019s 1969 ruling in\u00a0Tinker<\/em>\u00a0<\/em>v.<\/em>\u00a0<\/em>Des<\/em>\u00a0<\/em>Moines<\/em>\u00a0<\/em>Independent<\/em>\u00a0<\/em>Community<\/em>\u00a0<\/em>School<\/em>\u00a0<\/em>District<\/em><\/a>. The\u00a0Tinker<\/em>\u00a0Court struck a sensible middle ground, prohibiting content-based restraint of speech unless students substantially disrupted school operations.<\/p>\n

But in\u00a0Hazelwood<\/em>, the Court recognized lesser protection for speech that the school is asked to subsidize affirmatively: \u201c[T]he standard articulated in\u00a0Tinker<\/em>\u00a0for 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.\u201d<\/p>\n

When\u00a0Hazelwood<\/em>\u00a0was decided, First Amendment advocates comforted themselves that the ruling affected only minors enrolled in K-12 schools \u2013 and then only in the limited \u201ccurricular\u201d setting, such as a class-produced newspaper. That was a logical reading of the case and, as time has proven, an overly optimistic one.<\/p>\n

With the exception of speech on students\u2019 own clothing,\u00a0Hazelwood<\/em>\u00a0is increasingly the default standard governing speech in all forms and at all levels of education. This extension of the\u00a0Hazelwood<\/em>\u00a0doctrine entirely ignores the Supreme Court\u2019s underlying rationales, and it threatens to undermine \u2013 not advance \u2013 the instructional mission of higher education.<\/p>\n

The\u00a0Hazelwood<\/em>\u00a0majority 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\u2019s need to \u201cdisassociate\u201d itself from politically controversial speech that listeners might reasonably mistake for the official voice of the school.<\/p>\n

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 \u201cdisassociate\u201d themselves from any individual speaker\u2019s message. Reasonable listeners do not ascribe to the college the views of their students \u2013 and certainly not those of students criticizing the curriculum.<\/p>\n

Yet court after court has applied\u00a0Hazelwood<\/em>\u00a0to uphold institutional restrictions on (and at times punishment for) the speech of postsecondary students \u2013 even in nonpublic conversations with their instructors.<\/p>\n

Earlier this year, the Sixth Circuit decided that\u00a0Hazelwood<\/em>\u00a0governed 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.<\/p>\n

\u201cNothing in\u00a0Hazelwood<\/em>\u00a0suggests a stop-go distinction between student speech at the high school and university levels,\u201d the Sixth Circuit concluded in\u00a0Ward<\/em>\u00a0<\/em>v.<\/em>\u00a0<\/em>Polite<\/em><\/a>, \u201cand we decline to create one.\u201d<\/p>\n

In\u00a0Ward<\/em>, the Sixth Circuit joined three other federal circuits \u2013 the Seventh, Tenth and Eleventh \u2013 in holding that\u00a0Hazelwood<\/em>\u00a0determines when student speech is constitutionally protected even at the postsecondary level. Only the First Circuit has categorically rejected the\u00a0Hazelwood<\/em>\u00a0standard for college students.<\/p>\n

The creep of\u00a0Hazelwood<\/em>\u00a0onto college campuses is troubling because, in practice, courts regard\u00a0Hazelwood<\/em>as a \u201crational-basis-minus\u201d level of review, under which censorship decisions need only reside in the deferentially viewed vicinity of reasonableness.<\/p>\n

For a recent\u00a0article<\/a>\u00a0in the University of Baltimore\u2019s\u00a0<\/em>Journal<\/em>\u00a0<\/em>of<\/em>\u00a0<\/em>Media<\/em>\u00a0<\/em>Law<\/em>\u00a0<\/em>&<\/em>\u00a0<\/em>Ethics<\/em>, St. Louis University communications professor Dan Kozlowski reviewed every appellate opinion relying on\u00a0Hazelwood<\/em>. He concluded that \u201cin 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\u201d to legitimize censorship.<\/p>\n

Beyond constitutional doctrine, there are significant practical considerations that counsel against further extension of\u00a0Hazelwood<\/em>.<\/p>\n

By its terms,\u00a0Hazelwood<\/em>\u00a0applies equally to the \u201ccurricular\u201d speech of teachers as well as students. Courts repeatedly have relied on\u00a0Hazelwood<\/em>\u00a0to dismiss the First Amendment claims not only of teachers but also of adult guest speakers visiting K-12 classrooms (e.g.,\u00a0Busch<\/em>\u00a0<\/em>v.<\/em>\u00a0<\/em>Marple<\/em>\u00a0<\/em>Newtown<\/em>\u00a0<\/em>School<\/em>\u00a0<\/em>District<\/em><\/a>, the Third Circuit\u2019s 2009 ruling that, under\u00a0Hazelwood<\/em>, a school could censor a parent who brought a Bible to her son\u2019s kindergarten class for story-reading hour).<\/p>\n

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 \u2013 that a student could be disciplined for speech that would be constitutionally protected if uttered by a nonstudent \u2013 is equally unsustainable. If words are inappropriate for a college audience and might be confused for the government\u2019s speech when uttered by a student, then they are doubly so when said by an adult authority figure.<\/p>\n

The devastation that\u00a0Hazelwood<\/em>\u00a0has inflicted on high school journalism should give pause to anyone inclined to delegate comparable censorship discretion to college administrators.<\/p>\n

Although many standouts continue producing courageous work, post-Hazelwood<\/em>\u00a0high 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 \u201cwhistle-blowing\u201d journalism on topics ranging from unsanitary bathroom conditions to hazing in sports, merely because it might cause controversy.<\/p>\n

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.<\/p>\n

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 \u201cjournalism labs,\u201d such as\u00a0Reesenews.org<\/a>\u00a0at the University of North Carolina-Chapel Hill and\u00a0CU-CitizenAccess.org<\/a>\u00a0at the University of Illinois-Urbana, in which students cover community news for academic credit under the direction of an instructor who assigns grades \u2013 in other words, the \u201ccurricular\u201d setting that invites theHazelwood<\/em>\u00a0level of administrative control.<\/p>\n

In an October 2011 report, \u201cShaping 21st<\/sup>\u00a0Century Journalism<\/a>,\u201d 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 \u201copen letter\u201d to college presidents from the nation\u2019s leading philanthropic journalism funders, who challenged colleges to reinvent journalism education based on the teaching hospital model.<\/p>\n

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, \u201csanitized for their protection.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

By\u00a0Yevgeny Shrago Frank\u00a0D.\u00a0LoMonte\u00a0is\u00a0the\u00a0executive\u00a0director\u00a0of\u00a0the\u00a0Student\u00a0Press\u00a0Law\u00a0Center.\u00a0Before\u00a0joiningthe\u00a0SPLC,\u00a0he\u00a0practiced\u00a0with\u00a0the\u00a0law\u00a0firm\u00a0of\u00a0Sutherland\u00a0Asbill\u00a0&\u00a0Brennan,\u00a0he\u00a0clerked\u00a0for\u00a0twofederal\u00a0judges,\u00a0and\u00a0he\u00a0worked\u00a0as\u00a0an\u00a0investigative\u00a0journalist\u00a0and\u00a0political\u00a0columnist. When 51-year-old Alabama nursing student Judith Heenan repeatedly complained to her instructors about inequities in the grading […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1591","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-pF","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1591","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1591"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1591\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1591"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1591"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}