Colleges Can Censor, Too

A U.S. appeals court extends to higher education a 1988 Supreme Court ruling that let high schools review student content.
June 21, 2005

It could be open season for censors on college campuses -- and not just of student newspapers.

The full U.S. Court of Appeals for the Seventh Circuit ruled on Monday that a controversial 1988 Supreme Court decision that gives high schools the ability to restrict the free speech rights of student newspapers may apply to student newspapers subsidized by public colleges and universities, too. The Seventh Circuit's ruling in Hosty v. Carter, which involved Governors State University in Illinois, overturned earlier court decisions and brought a full-throated outcry from First Amendment advocates.

"This decision gives college administrators ammunition to argue that many traditionally independent student activities are subject to school censorship," Mark Goodman, executive director of the Student Press Law Center, said in a news release. "I fear it's just a matter of time before a university prohibits a student group from bringing an unpopular speaker to campus or showing a controversial film based on the Hosty decision. Such actions invite havoc on college campuses."

Student editors of the Innovator, a now-shuttered student publication at Governors State, sued a group of administrators and trustees there in 2001 after Patricia A. Carter, the dean of student affairs and services, told the company that printed the newspaper not to do so unless and until a university administrator had approved the content in advance. 

A federal district court judge, in a 2002 ruling, and a unanimous three-judge panel of the Seventh Circuit, in April 2003, ruled that the students had the right to sue Carter (and that she lacked state immunity) because college journalists had constitutional protection that the Supreme Court, in a 1998 case known as Hazelwood School District v. Kuhlmeier, had concluded that high school journalists could, in certain cases, be deprived of. 

"The differences between a college and a high school are far greater than the obvious differences in curriculum and extracurricular activities," the Seventh Circuit panel said in its April 2003 decision. "While Hazelwood teaches that younger students in a high-school setting must endure First Amendment restrictions, we see nothing in that case that should be interpreted to change the general view favoring broad First Amendment rights for students at the university level."

The Seventh Circuit vacated that decision in June 2003 and agreed to rehear the case. Monday, more than 18 months after the Seventh Circuit heard oral arguments in the case, the court's 11 judges issued a split decision, with a seven-judge majority siding with the university.

It concluded that the lower courts had made too much of a footnote in the Hazelwood decision that seemed to give college students full-blown constitutional protection from oversight and prior review by campus administrators. The Seventh Circuit majority played down the distinctions between student newspapers and other activities at the high school and college levels, and ruled that the key question for an administrator deciding whether he or she had the right to censor -- in college as well as high school -- is whether the institution has created a "designated public forum" in which students have been given the authority to make the content decisions. 

"If private speech in a public forum is off-limits to regulation even when that forum is a classroom of an elementary school ... then speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level," the majority ruled, adding: "We hold, therefore, that Hazelwood’s framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools."

The appeals court did not conclude that Carter had the right to censor the Innovator; only that it was unclear enough whether Hazelwood applied to the case that a competent official could have decided that it might, and that Carter therefore deserved immunity.

Four of the court's 11 judges dissented from the majority's ruling, accusing it of ignoring key differences between the high school and college contexts. "There are two reasons why the law treats high school students differently than it treats college students ... : high school students are less mature and the missions of the respective institutions are different. These differences make it clear that Hazelwood does not apply beyond high school contact."

Administrators at Governors State could not be reached for comment late Monday. 

The Student Press Law Center said the student plaintiffs in the case were planning to appeal to the U.S. Supreme Court.


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