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Article Excerpt
Introduction
I. Supreme Court University Speech Jurisprudence A. Early Cases B. Later Cases: The Forum Analysis C. The Hazelwood Decision II. Subsequent Applications of Hazelwood to College Student Speech A. Circuit Courts Applying Hazelwood to the University Context B. The First Circuit's Refusal to Apply Hazelwood to University Student Speech III. Scholarly Reaction to the Application of Hazelwood in the University Context IV. Misplaced Criticism: Hazelwood Has not Been Wrongly Applied to College Student Speech in Light of the Supreme Court's Recent Rulings A. Since Healy and Papish, the Court Has Consistently Applied a Forum Analysis to Student Speech in the University B. The Circuit Courts Are Justified in Applying Hazelwood in the University Context Conclusion
INTRODUCTION
It is said that the core value of American colleges and universities is the existence of an environment free from restraint on thought other than that which may be imposed by competing, contrasting, or conflicting thought and expression of other scholars and students. (1) The Supreme Court has echoed this theory, hailing the university as the quintessential marketplace of ideas. (2) American colleges and universities, however, are also charged with the potentially incompatible task of instilling the values and self-restraint necessary to create productive members of society. (3) Over the past two decades, the desire to balance these tasks has produced a "philosophical furor over whether the group is more important than the individual, whether the sensibilities of minorities and women should be elevated over the freedom of expression, and whether 'equality' should prevail over robust discourse" in universities. (4)
There has been wide-ranging debate concerning freedom of thought and expression in the university and it has taken many forms, including concerns about the status of academic freedom, (5) allegations of bias in the classroom, (6) criticism of and support for political correctness, (7) and arguments over the development and use of hate speech codes. (8) Despite this scholarly debate, the issue of college student speech (9) has been played out and decided in the courts. (10) Since 1972, the Supreme Court has decided a number of cases dealing with the speech rights of college students. (11) These precedents have repeatedly upheld the free speech rights of students and student organizations. (12) Commentators see the precedent as sending a "clear message that the First Amendment [cannot] be avoided or watered down in the university context, [and that the] rights of college students [are equal to] those of the adult population at large." (13)
The Supreme Court has also decided a line of cases dealing with high school student speech rights. (14) These cases are often seen as distinct from the Court's college speech jurisprudence (15) and they apply a more restrictive framework to evaluate student speech. (16) Unlike the college speech jurisprudence, the Court has consistently upheld the ability of primary and secondary schools to regulate student expression. (17)
Hazelwood School District v. Kuhlmeier (18) was one of the more recent decisions in the Court's line of high school speech cases. In this case, the Court evaluated the administrative control of a high school newspaper and held that public school officials could control speech in school-sponsored activities if they did so for legitimate pedagogical reasons. (19) While the Court reserved the question of whether this standard should be applicable at the university level, (20) various federal circuit courts have since applied this speech-restrictive standard to student speech at colleges and universities. (21)
In light of these circuit court opinions, there has been considerable debate about whether and to what extent the Hazelwood framework should apply to college and university students. (22) Most scholars have concluded, for various reasons, that the more speech-restrictive standard that the Supreme Court applied to high school students in Hazelwood should not apply to university students. (23) This criticism reached fever pitch following a recent decision of the U.S. Court of Appeals for the Seventh Circuit, (24) in which the Hazelwood framework was applied to a university mandate that a student newspaper submit to the prior review and approval of university officials before publication. (25)
Critics argue that the application of Hazelwood to universities goes against Supreme Court precedent and recommend that circuit judges heed the distinction between high school and college student speech until the Supreme Court resolves the matter. (26) This Note argues that, while the Supreme Court's decisions in the college context have been protective of students' free speech rights, there are similarities between the Hazelwood opinion and the Court's recent university speech decisions that have increasingly recognized the power of university officials to regulate student expression.
Those who criticize the application of Hazelwood to college student speech rely primarily on two of the Court's early college student speech decisions for the notion that college student speech rights are the same as those of adults in the community at large. The problem with this reliance is that, while those early cases do not justify the application of Hazelwood to the college context, the Court has decided several recent cases by applying virtually the same test to analyze college student speech that the courts of appeals have been applying since Hazelwood. Thus, the circuit courts' application of Hazelwood to college student speech cannot be considered wrong in the sense that they are departing from the Supreme Court's view of college student speech rights. In light of this, the Hazelwood framework remains applicable to university student speech in a majority of circuits, and those circuits that have not heard the issue are likely to follow suit and apply Hazelwood in the university context. Student free speech advocates, then, should consider extrajudicial remedies if they wish to ensure increased protection for students' freedom of expression in colleges and universities.
Part I of this Note examines the Supreme Court's line of college student speech cases and its decision in Hazelwood School District v. Kuhlmeier. Part II explores several important circuit court decisions that have applied Hazelwood to cases involving university student speech. Part III evaluates scholarly reaction to these circuit decisions, including the claim that the application of Hazelwood to the university context departs from well-established precedent granting college students broad free speech rights. Part IV argues that the application of Hazelwood to college student speech is actually supported by recent Supreme Court decisions and that there is good reason to believe other courts considering the issue will also apply Hazelwood's principles. This Note concludes that the federal courts may not be the best place for student free speech proponents to look if they wish to uphold and expand student speech rights, and recommends that they consider looking elsewhere for relief.
I. SUPREME COURT UNIVERSITY SPEECH JURISPRUDENCE
A. Early Cases
In 1972, the Supreme Court decided Healy v. James, (27) and found that Central Connecticut State College violated the First Amendment rights of students who wanted to form a local chapter of Students for a Democratic Society ("SDS") by denying the group recognition as a campus organization. (28) The late 1960s and early 1970s were characterized by a climate of unrest on many college campuses, during which SDS chapters across American campuses served as a "catalytic force." (29) In light of this, the president of the college denied official recognition to a proposed SDS chapter on Central Connecticut's campus, stating that he found the organization's philosophy "antithetical to the school's policies," and that he doubted this local chapter would be independent from the infamous national chapter (reflecting his fear that the local chapter would adopt the disruptive practices of other chapters). (30)
The Court found that "colleges and universities are not enclaves immune from the sweep of the First Amendment," and that the First Amendment protections afforded college students should comport with those in the community at large. (31) The Court noted that the "college classroom with its surrounding environs is peculiarly the 'marketplace of ideas'" and that the principle of academic freedom should be safeguarded. (32) Specifically, the Court held that once a student group filed a proper application for campus recognition, the burden was placed on the college to justify its decision of rejection. (33) Noting that the college's action denying SDS recognition was a form of prior restraint, (34) the Court found a heavy burden rested on the college to demonstrate the appropriateness of their action. (35)
This heavy burden might be met, however, by a college's legitimate interest in preventing disruption on campus. (36) The Court acknowledged the duty of schools to balance the need for First Amendment protections with the comprehensive authority of school officials to prescribe and control conduct, to maintain order within the school. (37) Accordingly, the Court reasoned that a college "may have, among its requirements for recognition, a rule that prospective groups affirm that they intend to comply with reasonable campus regulations." (38)
A year after Healy, the Court decided Papish v. Board of Curators of the University of Missouri, a case involving the expulsion of a graduate student from the University of Missouri School of Journalism for distributing an outside private newspaper "containing forms of indecent speech" in violation of university bylaws. (39) The cover of the newspaper showed a political cartoon depicting policemen raping the Statue of Liberty and Goddess of Justice, with a caption underneath which read, "With Liberty and Justice for All." (40) The paper also included a story entitled "M--F--Acquitted," which discussed the trial of a city youth who was a member of an organization known as "Up Against the Wall, M--F--." (41)
In a per curiam opinion, the Court found that while schools have an undoubted authority to enforce reasonable rules governing student conduct, the mere dissemination of ideas, no matter how offensive, may not be shut off in the name of "conventions of decency." (42) After determining that neither the political cartoon nor the headline story involved in the case could be labeled as constitutionally obscene or otherwise unprotected, the Court found that the university's actions in expelling the student were clearly motivated by the content of the newspaper (43) and could not be justified as a nondiscriminatory application of reasonable campus regulations. (44)
B. Later Cases: The Forum Analysis
Almost a decade after Healy, in Widmar v. Vincent, (45) the Court heard a case brought by members of a registered religious group against the University of Missouri at Kansas City challenging a university regulation prohibiting the use of university buildings or grounds "for purposes of religious worship or religious teaching." (46) The group had previously gained permission to conduct its meetings on campus, but was later informed it could no longer do so pursuant to university policy. (47) Members of the group alleged that the regulation violated their rights to free exercise of religion and freedom of speech under the First Amendment. (48)
Recognizing that the First Amendment rights of college students are not automatically the same as the rights of adults elsewhere, the Court undertook an analysis of the type of forum in which the student expression at issue took place. This "forum analysis" was most clearly delineated in Perry Education Association v. Perry Local Educators' Association. (49) The forum analysis evaluates regulation of otherwise constitutionally protected speech depending on the type of expressive venue, or forum, involved and the forum's intended purpose. (50) The Court, in Perry, detailed three different forum classifications for evaluating government regulation under the First Amendment: 1) the traditional public forum; 2) the limited, or "designated," public forum; and 3) the nonpublic forum. (51) The traditional public forum consists of those areas of public property that have been open historically to all for communication or discussion of issues (for example, public streets and parks). (52) In order for a regulation of speech to be upheld in a public forum it must serve a compelling state interest and be narrowly tailored to that end. (53) The limited public forum is one that has been opened to the public for a designated purpose or limited to discussion of certain subjects (for example, university meeting facilities for student groups and municipal theaters). (54) In this context, the public university, (55) may determine the content of speech in a limited public forum, but any regulation of speech within that content must be narrowly tailored to serve a compelling interest. (56) Nonpublic forums are those that have not traditionally been opened to the public (for example, United States mailboxes and high school newspapers) and any regulation that is reasonable and intended to preserve the purpose of the forum is permissible. (57)
Applying this forum analysis to the facts in Widmar, the Court found that, "through its policy of accommodating [the] meetings" of numerous student groups, "the university [had] created a forum generally open for use by student groups." (58) While the Court again recognized that colleges are "peculiarly 'the marketplace of ideas,'" (59) it also recognized that First Amendment principles must be applied "in light of the special characteristics of the school environment." (60) The Court noted that
[a] university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. (61)
With these differences in mind, the Court recognized that colleges were not required to establish a public forum on their campuses. (62)
However, since the university had established a public forum, the Court determined that the university had "discriminated against student...
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