Hazelwood v. Kuhlmeier and the university: why the high school standard is here to stay.

• Author: LaVigne, Christopher N.

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.

1. SUPREME COURT UNIVERSITY SPEECH JURISPRUDENCE

   1. 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...