In what may be the worst decision for college student rights in the history of the federal judiciary, the U.S. Court of Appeals for the Seventh Circuit this week turned back the clock a half-century and reinstated the old discredited doctrines of in loco parentis and administrative authoritarianism.
In Hosty v. Carter, the Seventh Circuit ruled by a 7-4 majority that administrators at public colleges have total control over subsidized student newspapers. But the scope of the decision is breathtaking, since the reasoning of the case applies to any student organization receiving student fees. Student newspapers, speakers and even campus protests could now be subject to the whim of administrative approval.
The case seemed like an open-and-shut example of unconstitutional suppression of dissent. On November 1, 2000, Patricia A. Carter, dean of student affairs at Governors State University, in Chicago’s south suburbs, called the printer of the student newspaper, the Innovator, and demanded prior approval of everything in the paper, which had annoyed administrators with its criticism of the university. Prior restraint is a classic violation of freedom of the press, and the editors Jeni Porche and Margaret Hosty soon sued the university.
Student press groups were alarmed when the Illinois attorney general’s office argued that the 1988 U.S. Supreme Court case Hazelwood School District v. Kuhlmeier should apply to college newspapers. The misguided Hazelwood decision has been an unmitigated disaster for high school journalists, and the possibility of extending it to college students is terrifying.
Terrifying, that is, for anyone who cares about freedom of the student press. But for the majority of the Seventh Circuit, Hazelwood was a legal opening for conservative judges who wanted to reach a predetermined result. If the majority opinion by Judge Frank Easterbrook had merely extended the censorship of Hazelwood to colleges, it would have been a principled decision; a terrible principle, but a principle nonetheless.
However, because Dean Carter’s action violated even the Hazelwood standard, these activist judges had to rewrite the Hazelwood precedent to justify the censorship of all student newspapers and activities. The judges had to eliminate Hazelwood’s restriction to curricular-based newspapers, and then had to eviscerate any constitutional protections for a “limited public forum” such as a newspaper. It took the judges 18 months from the time of oral arguments, and some convoluted reasoning, to achieve their goal.
The Hazelwood case declared that high schools could only censor student newspapers that were created as part of the curriculum. However, the majority decision in Hosty goes far beyond this, expanding censorship of high school papers as well by eliminating the “curricular” limit.
Jettisoning the Hazelwood standard restricting only curricular-based newspapers was merely the first of Easterbrook’s violations of precedent. He also annihilates the common understanding of “limited public forum,” a term created by the Supreme Court to provide a middle ground between the unregulated public forum (such as standing on a soapbox on the quad) and a non-public forum (such as a university-controlled alumni magazine).
“If the paper operated in a public forum, the university could not vet its contents,” Easterbrook wrote. He then asked, “was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised)?” Of course, a newspaper isn’t a public forum like a soapbox. It’s limited to the students who run the newspaper. By declaring that only a pure public forum is entitled to Constitutional protection, Easterbrook eliminates the First Amendment on college campuses for any limited public forum, including any student-funded activities.
“What, then, was the status of the Innovator?” Easterbrook continued. “Did the university establish a public forum? Or did it hedge the funding with controls that left the university itself as the newspaper’s publisher?” By his logic, the only speakers or newspapers on a public college campus that fall under public forum protection would be those that receive no funding from student fees or university funds (a rare commodity indeed). Any funding “controls” are directly tied to ideological controls.
Easterbrook concluded, “Freedom of speech does not imply that someone else must pay.” This is the philosophy of “he who pays the piper calls the tune,” and the Supreme Court has rejected it over and over again at public colleges.
Easterbrook is claiming that if the university can require student groups to follow funding rules designed to prevent fraud (and demand that student fee money be spent on a newspaper rather than, say, a private party), then the administration must be granted total control over the content of the newspaper.
A Break With Precedent
This is a bizarre conclusion, considering that the Supreme Court has repeatedly banned such control by colleges in funding cases.
In Rosenberger v. University of Virginia, the Court ruled that a public university cannot ban funding for a newspaper based on its religious content. Now the Seventh Circuit has declared that a public university may be obliged to fund a religious newspaper, but it can impose any control over its contents. In Board of Regents of the University of Wisconsin v. Southworth, the Supreme Court ruled that public colleges must ban all viewpoint discrimination in funding student groups. It would be bizarre if college administrators were granted the direct power to control the viewpoints expressed in student newspapers, while by expressly banned from making funding decisions based on viewpoint. Yet this is what Easterbrook’s opinion permits.
Any non-public forum that is funded by the university to any degree could be controlled and censored by administrators. Any use of campus space by a student organization is subsidized by the university, as are all registered student groups that receive any benefits or funding. Therefore, all of these groups are subject to total control by the administration under Easterbrook’s ruling.
In essence, Easterbrook argued that there is only one kind of censorship that is impermissible on a public college campus: banning someone from speaking for free on a soapbox on the quad. In all other cases, under the Hosty v. Carter ruling, college administrators across the country now have a green light to ban anything they want, from controversial campus speakers to critical student newspapers.
Although the Hosty ruling itself only applies to Illinois, Indiana and Wisconsin, the states covered by the Seventh Circuit, the “qualified immunity” test allows any public college administrators to avoid damages in any case where the law is unclear -- and the Hosty case certainly makes freedom of the student press an unclear idea.
The Hosty decision could also affect faculty academic freedom. If college students have no more Constitutional protections than first graders do, then college professors may have no more rights than elementary school teachers. Decades of cases establishing the unique legal status of colleges and academic freedom, based on the maturity and rights of college students, might be wiped away if Hosty is upheld.
Easterbrook also hauled out the dubious idea of institutional academic freedom: “Let us not forget that academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, including the courts.” If “academic freedom” means only the power of administrators to “manage an academic community,” then students and professors alike will be subject to censorship by the administration.
The Innovator has been shut down for almost five years, replaced by the administration with a more pliable newspaper where students never investigate or criticize their college. Unless the Supreme Court reverses the Seventh Circuit’s unprecedented act of conservative judicial activism, the Innovator may only be the first among many newspapers and student organizations silenced by administrators at public colleges, with the blessing of the courts.