Trampling the "marketplace of ideas": the case against extending Hazelwood to college campuses.

AuthorFiore, Mark J.
PositionSchool regulation of student publications

The federal courts long have recognized the nation's college campuses as uniquely a "marketplace of ideas." (1) With their aims of cultivating curiosity, creativity, and experimentation, colleges and universities throughout the country have broadly embraced the First Amendment. (2) At times, however, the free expression rights embodied in the First Amendment have clashed with administrative attempts to restrict the speech of college students. One such conflict erupted in 1994 at Kentucky State University (KSU or the "University"), when officials confiscated an estimated 2000 copies of the student yearbook because of objections to the content and quality of the publication. (3)

In the lawsuit arising from the censorship, Kincaid v. Gibson, two KSU students claimed that the University violated their First Amendment rights. (4) The suit went through a winding procedural history, (5) including an unreported district court opinion (6) affirmed by a Sixth Circuit panel. (7) The full Sixth Circuit, however, vacated the panel decision, (8) and after rehearing the case en banc, reversed the district court. (9) The standard the district court and the Sixth Circuit panel applied in Kincaid has caused alarm for student free speech advocates. Prior to these later-overturned Kincaid decisions, that standard, enunciated in the seminal First Amendment case of Hazelwood School District v. Kuhlmeier, (10) had been applied only to certain speech in public elementary, middle, and high schools. The district court and the Sixth Circuit panel, however, extended the restrictive Hazelwood standard to certain speech at public colleges and universities. While the full Sixth Circuit rejected that analysis, the fear still exists that other courts may again attempt to extend the Hazelwood standard.

Under Hazelwood, a school may regulate "school-sponsored" speech, such as student publications, so long as the regulations "are reasonably related to legitimate pedagogical concerns." (11) The Court's reasoning in Hazelwood includes a public forum analysis, which federal courts often invoke to determine the scope of First Amendment rights in contexts involving public property. (12) Were the Hazelwood standard applied to public colleges and universities, the federal courts would drastically deviate from their long-standing tradition of recognizing the nation's campuses as a "marketplace of ideas."

Given the potential for such a deviation, this Comment argues that the Hazelwood standard should not, as a matter of law and policy, apply to public college campuses. Part I discusses the current free speech rights granted to public school students, including an examination of Hazelwood and related cases. Part II addresses the broader First Amendment rights that the federal courts historically have granted to college students. Part II also includes a description of the facts and decisions in Kincaid v. Gibson. In Part III, this Comment provides several reasons not to extend Hazelwood to college campuses. Finally, Part IV touches upon the likelihood that the Supreme Court could in fact apply Hazelwood to college and university students.

The Supreme Court, indeed, has not foreclosed the possibility of extending Hazelwood to colleges. In Hazelwood, the Court explicitly left open that possibility, stating, "We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level." (13) In examining the Supreme Court's open question, this Comment makes certain assumptions. First, it acknowledges that the Hazelwood standard, if it were extended to colleges, could apply only to public colleges, because, absent other factors mentioned below, the First Amendment applies only to governmental acts. As a result, private colleges and universities for the most part are, and would continue to be, free from following these First Amendment standards. (14) Second, this Comment assumes that college speech that could be restricted under Hazelwood otherwise could not be restricted under current First Amendment standards, such as those regulating obscenity or prohibiting speech that may incite imminent lawful action. (15) Finally, the Comment assumes that the Hazelwood standard as it currently applies to secondary schools is an appropriate standard. (16)


    The First Amendment free speech rights of students in secondary schools have been shaped largely by three Supreme Court cases: Tinker v. Des Moines Independent School District, (17) Bethel School District v. Fraser, (18) and Hazelwood. While Tinker started from the premise that "[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (19) the Court has limited those rights sharply in Fraser and Hazelwood.

    1. Supreme Court Standards Applying to Public School Students' First Amendment Rights

      Tinker is the proper starting point for an examination of the First Amendment rights of public school students. (20) The dispute in Tinker arose when three students in Des Moines, Iowa, wore black armbands to school to protest the Vietnam War. (21) When the schools' principals got wind of the plan, they adopted a policy that any student wearing an armband would be asked to remove it or face suspension. (22) Aware of the policy, the students wore their armbands to school, resulting in suspensions until they agreed to return without their armbands. (23) Claiming a violation of their First Amendment rights, the students sued. (24)

      In a 7-2 decision, the Supreme Court found a First Amendment violation. The Court recognized that First Amendment rights must be balanced, "in light of the special characteristics of the school environment," (25) with the rights of school officials "to prescribe and control conduct in the schools." (26) Weighing these conflicting propositions, the Court held that student speech may only be regulated if it "would substantially interfere with the work of the school or impinge upon the rights of other students." (27)

      Applying this standard, the Court found no evidence of disruption. (28) The Court noted, for example, that "[o]nly a few of the 18,000 students in the school system wore the black armbands," and "[o]nly five students were suspended." (29) Highlighting the constitutional importance of free speech, the Court stated:

      In our system, students may not be regarded as closed circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. (30) The broad free speech rights granted to public school students under Tinker began facing restrictions with the Supreme Court's Fraser decision nearly two decades later. In Fraser, the Court considered the free speech rights of a public high school student who had delivered a sexually suggestive speech during a school assembly. (31) After the student, Matthew N. Fraser, delivered his speech, he faced suspension for violating a school policy prohibiting the use of obscene language. (32) Fraser served a two-day suspension and filed suit. (33)

      The Supreme Court upheld Fraser's punishment by a 7-2 decision, and distinguished Tinker by noting that the expression in Tinker could not be construed as associated with the school, while Fraser's speech was given as part of an official school activity. (34) The Court further distinguished the speech in Tinker as "political" speech, thus reasoning that the Tinker standard need not apply to nonpolitical speech such as Fraser's. (35) Rather, the Court emphasized that "schools must teach by example the shared values of a civilized social order" and, as a result, can prohibit "lewd, indecent, or offensive speech." (36)

      The Court used similar reasoning two years later in Hazelwood. (37) While not explicitly overruling Tinker, the Court, in a 5-3 decision, developed a far more stringent First Amendment standard for certain public school speech. Of concern to the Court was the decision by the principal of Hazelwood East High School to censor two pages of an issue of the school's student newspaper, Spectrum. (38) The newspaper, produced as part of a journalism course, was subsidized largely with funds from the school district and was subject to various oversight mechanisms. (39) When the newspaper staff submitted proofs of the issue to the principal, he ordered the removal of two articles, one describing three Hazelwood East students' experiences with pregnancy, and the other discussing the impact of divorce on students at the school. (40)

      Adopting a public forum analysis, the Supreme Court held that the principal's actions did not violate the students' First Amendment rights. (41) While the Court acknowledged the broad First Amendment rights granted in Tinker, it also recognized both the restrictions placed on those rights in Fraser and the need for schools to instill civic values in students. (42) In reaching its conclusion, the Court determined that the school newspaper could not be considered a public forum. (43) In previous cases, the Court found three types of forums, each of which has its own First Amendment standards. In a traditional public forum, such as a public park, (44) the government has a very limited ability to limit free speech rights. Only those restrictions that are narrowly drawn to serve a compelling state interest will pass First Amendment scrutiny. (45) On the opposite end are nonpublic forums, such as military bases (46) and prisons, (47) in which the government may impose extensive restrictions on First Amendment rights, so long as the restrictions are reasonable. (48) Finally, in the middle are limited public...

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