- U.S. Supreme Court’s Ruling in a Higher Education Case
- Circuit Court Decisions in Higher Education
- U.S. Supreme Court’s Ruling in Hazelwood v. Kuhlmeier
- Application of Hazelwood to Student Publications in Higher Education
As tangible forms of free speech and expression, student newspapers and other publications at public colleges and universities enjoy considerable protection under the First Amendment. Student publications at these institutions, including officially recognized newspapers and other publications that students produce off campus, are entitled to First Amendment protection. Because student newspapers at private institutions have only those rights identified in institutional policies, there is a dearth of litigation in these schools. In light of the significant question surrounding the free speech and expression rights of students who are involved with the production of newspapers, this entry examines key legal issues and representative litigation with regard to student publications at public colleges and universities.
U.S. Supreme Court’s Ruling in a Higher Education Case
Papish v. Board of Curators of the University of Missouri (1973) was the U.S. Supreme Court’s first, and only, case involving a newspaper on a college or university campus. In Papish, officials at a state university expelled a graduate student for distributing an off-campus newspaper that violated the institution’s policy against “indecent speech.” Specifically, the newspaper contained a cartoon depicting the Statue of Liberty being raped by a policeman and a newspaper article containing offensive language. A federal trial court and the Eighth Circuit upheld the student’s expulsion, but the Supreme Court reversed in her behalf. The Court ruled that the mere dissemination of ideas on a state university campus could not be shut off in the name of conventions of decency alone, regardless of how offensive those ideas may have been.
Circuit Court Decisions in Higher Education
Less than a month after Papish, the Fourth Circuit, in Joyner v. Whiting (1973), decided that officials at a public, predominantly Black university in North Carolina had no obligation to establish student newspapers. However, the court added that if officials did allow student newspapers, the officials could not terminate the newspapers’ publication on the basis of dissatisfaction with their editorial content. Joyner involved an editorial in which Black students criticized the admission of White students in the light of the growing population of White students on campus. Even though the president of the university disagreed with this perspective, the court directed him to restore funding to the student newspaper. The court interpreted the president’s actions as abridging the students’ freedom of the press in violation of the First Amendment. Likewise, in Schiff v. Williams (1975), the Fifth Circuit declared that a public university could not control the content of a student newspaper except under “special circumstances.” The court thus affirmed that university officials could not remove students from their positions as editors of the campus newspaper due to disagreements over the way in which the students managed the newspaper.
In Stanley v. McGrath (1983), the Eighth Circuit reviewed the actions of officials at a public university in Minnesota who changed the funding mechanism for the student newspaper after its staff published a satire issue that contained crude sexual language and offensive remarks about religious and ethnic groups. Although the level of funding was not reduced, officials instituted a policy that allowed students who disapproved of the newspaper to receive a refund for that portion of their services fee that otherwise would have contributed to funding the newspaper. While reiterating that officials were not required to support a student newspaper, the court pointed out that the actions of university officials violated the First Amendment, because their actions were motivated by dissatisfaction with the paper’s content, an impermissible violation of the newspaper staff’s freedom of expression.
In other cases, courts have agreed that because campus newspapers at public colleges and universities are independent entities rather than governmental actors, student editors are free to make independent editorial comments. For instance, in Sinn v. The Daily Nebraskan (1987), individuals unsuccessfully sued a student newspaper in Nebraska for refusing to print advertisements in which people seeking roommates proclaimed their sexual orientations. The Eighth Circuit affirmed that because the newspaper’s editors were not state actors, they could not be compelled to publish advertisements that conflicted with their advertising policy.
U.S. Supreme Court’s Ruling in Hazelwood v. Kuhlmeier
In Hazelwood School District v. Kuhlmeier (1988), the U.S. Supreme Court upheld the legality of the actions of a high school principal who excluded two articles from a newspaper that students produced as part of a journalism class that was part of the school’s curriculum. One of the articles involved teen pregnancy, while the other involved the impact of divorce on the children of couples who divorce. Officials were concerned that although no students were mentioned by name in the articles, the students mentioned might have been easily identified in the community. Consequently, the principal directed that the articles not be printed.
The Hazelwood Court found that because the student newspaper was part of the curriculum, officials could limit its style and content as long as their actions were reasonably related to a legitimate pedagogical concern. According to the ruling in Hazelwood, schools are not required to print material incompatible with their basic educational mission. It is interesting that in a footnote acknowledging the obvious—that the dispute at bar was set in a secondary school—the Court noted that it did not have to address whether the actions of officials in college and university settings were entitled to similar deference.
Application of Hazelwood to Student Publications in Higher Education
Two more recent cases, Kincaid v. Gibson (2001) and Hosty v. Carter (2005), are discussed below in light of judicial application of the Supreme Court’s ruling in Hazelwood. Federal courts are split with regard to whether Hazelwood should apply in cases involving student publications at the college and university level. In Kincaid, the Sixth Circuit was of the opinion that Hazelwood was inapplicable in university settings. The issue in Kincaid was that university officials refused to distribute copies of the student yearbook, asserting that it was of poor quality and that the editors strayed beyond the traditional themes that the book had followed in the past. The Sixth Circuit, in an en banc decision (meaning that all of the members of the court participated in the decision), concluded that because the yearbook was a limited open forum that granted considerable deference to the free speech rights of students, the editors were free to make decisions about the yearbook’s content, and officials lacked the power to direct its content.
On the other hand, in the immediate aftermath of Hazelwood, the Eleventh Circuit treated it as controlling precedent in Alabama Student Party v. Student Government Association of the University of Alabama (1989), a case involving restrictions that a student government association placed on campaign activities in student elections. The court considered the constitutionality of university time, manner, and place rules that restricted the distribution of campus literature to three days before elections took place and only at residences or outside of campus buildings, prohibited distribution of campaign literature on election days, and limited open forums of discussion or debates to the weeks of election. In upholding the rules, the court found them to be reasonably related to the legitimate interests of university officials in minimizing the disruptive effect of campus electioneering.
More recently, the Seventh Circuit applied Hazelwood to a case involving a university newspaper in Hosty. Hosty, which has been subject to considerable academic commentary, arose when a dean directed staff at a printing company not to produce copies of the newspaper without his approval. The dean made this directive after student editors had published what university officials described as irresponsible and defamatory journalism; it attacked the dean’s integrity in a disagreement over institutional funds and hiring practices, particularly in not renewing the employment contract of the newspaper’s faculty moderator. As a result, the newspaper ceased operations for a time but did resume publication with a new editorial staff.
In declining to follow Kincaid, an en banc panel in Hosty observed that Hazelwood applied to the dispute. The court conceded that although the editors and context were different from those in Hazelwood, the Hazelwood precedent applied insofar as the rights of student editors in higher education were unclear. The court also thought that the editors could not sue the dean even though he violated their First Amendment rights by limiting what they could publish, because their rights were unclear at that time, especially because the costs associated with publishing the newspaper were paid for with student activity fees that university officials collected. The court determined that the dean was entitled to qualified immunity shielding him from personal liability, because he acted to prevent the students from publishing material that he deemed inappropriate while acting in his official capacity as dean rather than as a private citizen.
In light of the conflicting perspectives of federal circuits over the appropriate level of free speech to which they are entitled, it will be interesting to see whether the Supreme Court intervenes in a dispute clarifying the rights of students who are involved with campus publications.
Fiore, M. J. (2002). Trampling the “marketplace of ideas”: The case of extending Hazelwood to college campuses. University of Pennsylvania Law Review, 150, 1915–1968.
Lyons, J. B. (2006). Defining freedom of the college press after Hosty v. Carter. Vanderbilt Law Review, 59, 1771–1810.
Alabama Student Party v. Student Government Association of the University of Alabama, 867 F.2d 1344 (11th Cir. 1989).
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005), cert. denied, 546 U.S. 1169 (2006).
Joyner v. Whiting, 477 F.2d 456, 460 (4th Cir. 1973).
Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001).
Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973).
Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975), cert. denied, 423 U.S. 834 (1975).
Sinn v. The Daily Nebraskan, 829 F.2d 662 (8th Cir. 1987).
Stanley v. McGrath, 719 F.2d 279 (8th Cir. 1983).