The limits on university control of graduate student speech.

• Author: Saunders, Tom

Brown v. Li, 308 F.3d 939 (9th Cir. 2002).

In the spring of 1999, Christopher Brown, a master's degree candidate in material sciences at the University of California at Santa Barbara (UCSB), submitted his thesis for approval. The copy reviewed by Brown's thesis committee contained no acknowledgments page. After the committee approved his thesis, Brown inserted an additional two pages entitled "Disacknowledgements," (1) in which he ranted against professors, the university, former Governor Pete Wilson, and the state of the physical sciences. The opening sentence set the tone for the entire section. Brown began, "I would like to offer special Fuck You's to the following degenerates...." (2) He proceeded to complain about "fascists" in the university administration, label one professor as a "prick," and call the university's Board of Regents a "paragon of corrupt mismanagement." (3)

When the university learned about the disacknowledgments page, it declined to file Brown's thesis in its library system and refused to grant him a degree until he removed the offending material. Brown unsuccessfully challenged the decision within the university, and, in June 2000, he filed suit in federal district court under 42 U.S.C. [section] 1983. Among other claims, Brown alleged that the Dean of the Graduate Division and other named defendants had violated his First Amendment fights. The district court granted the defendants' motion for summary judgment. Brown appealed, and, in a 2-1 decision, a panel of the Ninth Circuit upheld the lower court decision. (4) Judge Susan Graber reasoned as a matter of first impression that the case should be governed by the restrictive First Amendment standard developed by the Supreme Court for high school students in Hazelwood School District v. Kuhlmeier. (5) Her opinion represented the first unequivocal application of Hazelwood to a postsecondary student (6) and stands in tension with decisions in the Sixth Circuit (7) and First Circuit (8) that specifically declined to apply Hazelwood in the context of higher education. (9)

This Comment argues that the Ninth Circuit reached the right result in Brown v. Li, but applied the wrong legal standard. The Supreme Court developed the Hazelwood test in a case involving a high school newspaper. Its concerns about the "emotional maturity" of high school students and preventing the views of the speaker from being "erroneously attributed to the school" are less persuasive in a university setting. (10) Consequently, Hazelwood does not provide an appropriate standard for protecting the First Amendment rights of college and graduate students, who otherwise enjoy the full legal rights of adulthood. (11) This Comment suggests that the Ninth Circuit panel should have instead applied the more protective balancing test that governs cases involving the discipline of professors and denial of tenure. Application of that test should not alter the outcome in Brown, but it would lay a better foundation for future cases involving the speech of university students.

I

Judge Graber distinguished Brown from other cases declining to apply Hazelwood in a postsecondary context by emphasizing the difference between curricular speech and extracurricular speech. (12) In part, such a distinction tracks traditional First Amendment forum analysis. Judge Graber noted that an "acknowledgments section has a well-defined form and purpose in academic writing." (13) She explained that professors retain an interest in teaching their students the proper use of acknowledgments. UCSB communicated this interest to students through its Guide to Filing Theses and Dissertations, which assigned students and their thesis committees joint responsibility for ensuring that "everything between the margins" of their theses would "meet the standards for publishing journal articles or monographs" in their relevant academic fields. (14) Judge Graber seized upon this retention of control by the university to conclude that an academic thesis "is not a public forum, limited or otherwise." (15) Judge Graber's forum analysis seems to rest on solid footing. The Supreme Court has held that the "government does not create a public forum by inaction or by permitting limited discourse but only by intentionally opening a nontraditional forum for public discourse." (16) Although the university approved other nontraditional acknowledgments sections, (17) its lax enforcement of university policies did not signal a specific intent to change the terms of its guide.

On its own, this forum analysis would justify affording acknowledgments sections only limited First Amendment protection. Yet Judge Graber pushed the distinction between curricular and extracurricular speech too far by applying Hazelwood and allowing UCSB to impose any speech restrictions "reasonably related to a legitimate pedagogical purpose." (18) Hazelwood involved the removal of articles about teen pregnancy and divorced parents from a high school newspaper. A journalism class produced the paper under the supervision of a faculty member as part of the high school curriculum. Judge Graber considered Hazelwood to be the "most analogous" case to Brown because UCSB also possessed a "strong interest in setting the content of its curriculum and teaching that...