Hazelwood goes to college

Though the Supreme Court has never done so, a growing number of lower courts are applying the restrictive high school censorship standard to higher education

When 50-something graduate student Judith Heenan enrolled at Auburn University School of Nursing, she could never have envisioned that her course of study would culminate in a disciplinary removal from the school, followed by protracted litigation in federal court – or that her fate would be decided on the basis of the same legal standard that would apply to an adolescent girl. But that is just what occurred.

Judge Myron Thompson of the Middle District of Alabama concluded that, because inculcating civility is within the curricular mission of the Nursing School, and because Ms. Heenan had behaved in an “uncooperative” and “rude” manner, her protestations against the disciplinary system of the school were not protected speech under the First Amendment.[1] Accordingly, the judge ruled, Auburn did not violate Heenan’s constitutional rights in expelling her after a series of disciplinary “strikes.”

In reaching this legal conclusion, Judge Thompson took a position that is becoming increasingly common at the federal district court level in recent years: that the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier[2] extends beyond primary and secondary school classrooms to reach onto university campuses, in ways that have allowed colleges to both censor and penalize speech at the undergraduate and even post-graduate levels.

Guidance from the Supreme Court

Almost twenty-five years ago, the Supreme Court decided the landmark Hazelwood case. In that case, three former students accused Hazelwood East High School in Missouri of violating their First Amendment rights when the school deleted two pages of articles from a newspaper that the students published as part of a journalism course. The Supreme Court found that the school had acted within constitutional bounds. The Court said that, because of the “curricular” context of the speech, the school district was exercising reasonable educational judgment. As a policy matter, the Court wanted schools to have the ability to “disassociate” themselves from disagreeable speech that would “bear the imprimatur of the school.”[3] In other words, the school’s interest in controlling the content of the paper was heightened by the fact that community members may have attributed viewpoints expressed in the paper to the school itself.

The general pronouncement of law that undergirded the decision – and to this day serves as the starting point in the analysis of many student speech claims – is that “educators” may regulate school-sponsored [i.e. curricular] speech “so long as their actions are reasonably related to legitimate pedagogical concerns.”[4] In attempting to settle the law, the Court inadvertently opened a Pandora’s box of other questions, including which activities “bear the imprimatur” of the school, which speech is “school-sponsored” or “curricular,” and what are “legitimate pedagogical concerns?”

Despite the murkiness, there is still a certain subset of speech that is clearly subject to Hazelwood. The prototypical case of curricular speech is classroom speech, such as an oral presentation, written assignment or class discussion. Grading such speech, even grading it harshly, is without a doubt a regulation in service of “legitimate pedagogical concerns.”

“School-sponsored” speech is more nebulous. Speech distributed by official student organizations (e.g., the newspaper, yearbook club, student government); speech at school events (e.g. school performances, assemblies, commencement); and speech using school-provided modes of communication (e.g., bulletin boards, school-issued email, those ubiquitous marquees outside high schools that declare “Go [MASCOTS]!!!”) all might – depending on the circumstances – qualify as “school-sponsored” speech. As one can see, just attempting to define the basics of the Hazelwood standard is a thorny endeavor.

The Hazelwood Court was equally unclear whether the new legal standard it was creating should apply in the post-secondary context. In an oft-cited footnote, Justice White, speaking for the majority, remarked that the Court “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.”[5]

Since that time, the few references that the Supreme Court has made toward Hazelwood’s applicability at the college level have been as opaque as Justice White’s footnote. In Board of Regents of Univ. of Wis. System v. Southworth,[6] a case involving the disbursement of student funds to campus clubs, Justice’s Souter’s concurrence, accompanied by two other justices, dropped a notable footnote of its own.[7] In it he cited Hazelwood as an instance in which the right of institutions to limit the expressive freedom of students has been confined to high schools, and then generalized that high school “students and their schools’ relation to them are different and at least arguably distinguishable from their counterparts in college education.”[8] In 2010, ten years after deciding Southworth, the Supreme Court again cited Hazelwood in a case involving the post-secondary context. In Christian Legal Society v. Martinez,[9] which determined that the state-run Hastings College of Law could require school-funded student activity groups to “accept-all-comers” and not discriminate, Justice Ginsburg offered a cursory citation to the Hazelwood case, in support of the proposition that courts should “resist substituting their own notions of sound educational policy for those of the school authorities which they review.”[10] Neither Souter’s nor Ginsburg’s citations are sufficiently definitive so as to clarify whether the rule of Hazelwood applies to colleges.

There are powerful arguments that Hazelwood is simply the wrong standard in the adult world of a college campus. These arguments were well-captured in the Sixth Circuit’s 2001 ruling in Kincaid v. Gibson,[11] which found a college’s censorship of a student-produced yearbook (The Thorobred) to be unlawful. In declining to apply Hazelwood in the college setting, the court said that “we find it relevant that the editors of The Thorobred and its readers are likely to be young adults” – noting that one of the editors was 37 years old – and concluded: “[T]here can be no justification for suppressing the yearbook on the grounds that it might be ‘unsuitable for immature audiences.’”[12]

Trickle down

In the absence of clear direction from the Supreme Court, the various federal courts of appeal are left to elucidate the scope of the Hazelwood rule. Predictably enough, there is a schism among various courts on this question, a split that emerged almost immediately following Hazelwood. The polar positions were staked out by the First and Eleventh Circuits in 1989. The First Circuit, based in Boston, concluded that Hazelwood “is not applicable to college newspapers,”[13] while the Eleventh Circuit, based in Atlanta, conversely concluded that the Hazelwood rationale permitted the University of Alabama to regulate student government candidates’ speech based on a mere justification that the regulation was reasonable, even if the speech was not shown to be unlawful or disruptive in any way.[14]

Several other circuits have since trickled into one camp or the other. The Sixth Circuit decided, in alignment with the First Circuit, that Hazelwood has no application in the context of a college publication.[15] The Seventh and Tenth Circuits decided, in alignment with the Eleventh Circuit, that Hazelwood governs the regulation of speech at post-secondary educational institutions.[16]

The Seventh Circuit’s ruling, Hosty v. Carter,[17] is the rare post-Hazelwood case set in the context of a student newspaper. In that case, the appeals court dismissed the censorship claims of college students at Illinois’ Governors State University on the grounds that the level of First Amendment protection owed to the student newspaper, under the Hazelwood standard, was so unclear that reasonable administrators would not have known whether they were violating the students’ constitutional rights.

Initially the Ninth Circuit appeared to adopt Hazelwood regulatory authority at the college level,[18] but the California-based circuit has, in a more recent case, disowned that stance.[19] The New York-based Second Circuit has cited favorably to Justice Souter’s footnote in Southworth, which suggests that the circuit’s judges are wary of applying Hazelwood to the college level.[20]

The divide among the circuits continues to the present. In 2010, both the Third and Fifth Circuits heard constitutional challenges to student codes of conduct (at the University of the Virgin Islands and Louisiana State University, respectively). In the UVI case, the speech code banned “offensive” and “unauthorized” speech. In the LSU case, the code banned “extreme, outrageous or persistent” communications that are reasonably likely to “harass, intimidate, harm or humiliate.” There was a striking disparity in not only the outcome of the cases, but in the manner in which the two courts approached the question. The Fifth Circuit upheld the LSU code, perfunctorily quoting Hazelwood to buttress the argument that “a school need not tolerate student speech that is inconsistent with its basic educational mission.”[21] The Third Circuit struck down sections of the UVI code, meticulously considering the significant differences between high school life and university life: the maturity of the students; the educational missions of the institutions; the administrators’ roles; and “the fact that many university students reside on campus and are thus subject to university rules at almost all times.”[22]

Trickle down down

With almost every circuit court of appeals having had occasion to weigh in on the question, one might think that the job of federal trial courts, the district courts, would be rather rudimentary: simply adhere to the case law of the particular circuit in which the district court is located. In reality, however, there has been a recent trend in district courts around the country of adopting expansively unprecedented applications of Hazelwood at the university level. Although, as noted in the previous section, several circuits have employed the Hazelwood test at the college level, including the Fifth Circuit’s cursory citation to Hazelwood last year, no appeals-level court has expressly applied Hazelwood to college student speech that is independently generated by the students (that is, not part of a class assignment) and is not school-sponsored or funded. Nevertheless, over the past few years, several district court opinions have used Hazelwood’s precedent in just this type of situation.

In the recent Alabama case, Judith Heenan argued that the opposition that she voiced against the nursing school’s disciplinary point system was met with further retaliation, in the form of disciplinary “strikes” against her that added up to grounds for expulsion. The district court determined that her speech about the disciplinary system was itself curricular – even though it was speech in opposition to school policies, clearly not at the direction of the school or attributable to the school.

In response to Heenan’s request for reconsideration, Judge Thompson yielded slightly from his initial position to a softer one acknowledging that some of her out-of-class speech was not curricular and thus not subject to regulation under Hazelwood. Still, the judge maintained that “grievances that were made to, or in the presence of, her instructors and supervisors and were related to her training” are within the rubric of Hazelwood curricular speech.[23]

The reasoning of Heenan v. Rhodes is not an isolated occurrence. Rather, at least two other district courts have adopted similarly aggressive expansions of Hazelwood in recent cases. The Northern District of California court did so in Head v. Board of Trustees of The California State University,[24] in which a student at a teacher’s college alleged that he was coerced to affirm political views with which he personally disagreed. Stephen Head argued that he should not be forced to profess what he considered to be a thinly veiled Democratic platform of race-conscious multiculturalism. His professor had gone so far as to campaign against a state ballot proposition during one class. Nonetheless, in finding in favor of the university, the Northern District of California court concluded that “foster[ing] educators who can function effectively and sensitively in the multicultural, multilingual . . . environment of today’s secondary schools” is a “legitimate pedagogical purpose” in furtherance of the university’s curricular mission.

The court’s reasoning raises the related question of how far a school can extend its curricular reach over the beliefs, and not merely the actions, of any student. Can any professional school justify compelling its students to pledge allegiance to a certain political affiliation, as long as that school offers a blanket assertion that Republicans, Democrats or any other political ilk are better suited to succeed as a professional in that particular career? Can a psychology class at a state university administer a multiple-choice exam in which “the right answer” is that blacks are genetically inferior to whites and women are genetically inferior to men? This is the peril of accepting uncritically that the school gets to decide what are the “right” ideas and attitudes a successful graduate should hold, and that diverging from the school’s notion of “right thinking” is constitutionally unprotected.

The federal district court for the Southern District of Georgia confronted a similar situation in Keeton v. Anderson-Wiley,[25] involving a dispute between Augusta State University and a student seeking to have the court remove her from a school-instituted probationary plan. The student, Jennifer Keeton, who was studying to be a counselor, repeatedly voiced her religious-based views on the immorality of homosexual conduct to professors and classmates in her academic program, including relaying an interest in “conversion therapy” to change the behavior of homosexual and bisexual people. The school placed Ms. Keeton on a mandatory “remediation plan” under a school policy that read “[w]hen a student’s progress is not satisfactory on interpersonal or professional criteria unrelated to academic performance, she or he may be placed on remediation status.” Ms. Keeton refused the plan and brought a lawsuit to prevent the school from expelling her, on grounds that expulsion would violate her right to freedom of speech.

U.S. District Judge J. Randal Hall disagreed, however, that compelled participation in a remediation plan would violate her First Amendment rights. Rather, he concluded that Augusta State was within its right to impose the guidelines, as part of a legitimate professional curriculum. From this perspective, Ms. Keeton’s avowed anti-homosexual sentiments were in essence curricular speech, because they violated principles of professional ethical conduct that were embedded in ASU’s curriculum.

The court purported to be following the case of Ward v. Wilbanks,[26] decided only a month earlier by a Michigan federal court. In Ward, another guidance counselor student, also fiercely opposed to homosexuality, refused during a practicum course to counsel a homosexual student for depression. When she was ultimately dismissed from the program, the counseling student sued the school on grounds that her dismissal violated her First Amendment free speech and exercise of religion. Invoking Hazelwood, the Michigan court decided that there was no constitutional violation because Eastern Michigan University’s dismissal of Ms. Ward was a reasonable regulation of her curricular speech – in this case, her refusal to counsel a patient. It was reasonable, the court ruled, for the school to import the American Counseling Association’s ethical principle of non-discrimination in treatment into its curriculum.

Yet, the contrast between the two cases is stark. Ms. Ward was placed on remediation for refusing to comply with a curricular requirement – not speech, but conduct (refusal to offer treatment). It is as if she did not turn in her final paper or complete her final exam, which everyone recognizes to be legitimate grounds for academic sanctions. She sought an exemption for her religious views, but as the court noted, there existed no system of particularized exemptions. Ms. Keeton was punished, on the other hand, for politically unpalatable speech alone. Not once did she refuse to comply with a general curricular requirement. Rather, the school removed her for the beliefs that she expressed, and in particular, her advocacy of radical conversion therapy. This distinction makes the Keeton case a much more questionable use of college disciplinary authority.

Unquestionably some cases present close calls, verging on the speech/conduct line. For instance, Ms. Keeton might have (though she did not in fact) said that she would refuse to treat those who engaged in what she considered to be sexually immoral behavior. This proclamation would have been tantamount to a threat not to complete a valid curricular requirement at some point in the future. Instead, the most that Ms. Keeton said was that “it would be hard to work with the population” of gay and lesbian students. This falls short of a refusal to perform a curricular task, and is much more akin to pure speech rather than speech mixed with conduct. Judge Hall, nevertheless, viewed the curricular reach of the school more expansively.

The intriguing question is why has there been this recent string of district court decisions broadly expanding the reach of Hazelwood at the college level. Certainly, the dearth of Supreme Court guidance is one factor. Another may be that the current climate is charged with heightened sensitivities to anything regarded as stigmatizing others, especially based on gender, race or another personal characteristic. “Cyberbullying” has been the buzzword of school administrators for the past few years, and although no court opinion has advanced the position that Hazelwood permits the regulation of an individual student’s online speech, it is not absurd to anticipate schools pressuring the courts in that direction. Like the judges above, there may be other jurists who, sympathizing with the goals of the schools, view the administrator-friendly standard of Hazelwood as an easy way out, a way to rule for the school at an early summary judgment stage, without the ordeal of a full-blown trial. Eventually, though, Hazelwood will be contorted beyond recognition, at which time the Supreme Court will be forced to issue some much-needed clarification.

Adam Schulman is the Student Press Law Center’s legal fellow. He is a graduate of Georgetown University Law Center.


1 Heenan v. Rhodes, __F.Supp. 2d__, 2010 WL 5300929, *8-*10 (M.D. Ala. 2010). 2 484 U.S. 260 (1988). 3 Id. at 272. 4 Id. at 273. 5 Id. at 273 n.7. 6 529 U.S. 217 (2000). 7 Id. at 239 n.4. 8 Id. 9 130 S.Ct. 2971 (2010). 10 Id. at 2988 (internal quotation marks omitted). 11 236 F.3d 342 (6th Cir. 2001) (en banc). 12 Id. at 352. 13 Student Government Ass’n v. Bd. of Tr. of Univ. of Mass., 868 F.2d 473, 480 n.6 (1st Cir. 1989). 14 Alabama Student Party v. Student Government Ass’n, 867 F.2d 1344, 1347 (11th Cir. 1989). 15 Kincaid v. Gibson, 236 F.3d 342, 346 n.5 (6th Cir. 2001). 16 Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005)(regarding censorship of a college paper); Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004)(regarding an acting student’s refusal to say certain imprecations as part of her assignments). 17 412 F.3d at 731. 18 Brown v. Li, 308 F.3d 939 (9th Cir. 2002) (regarding a graduate student’s appendix of a “disacknowledgments” section to his thesis). 19 Flint v. Dennison, 488 F.3d 816, 829 n.9 (9th Cir. 2007) (“we need not consider whether the principles of Hazelwood... apply with full force in a university setting – a question neither we [citing a concurrence/dissent in Brown v. Li], nor the Supreme Court, have definitively answered.”) 20 Amidon v. Student Ass’n of State Univ. of New York, 508 F.3d 94, 104 (2nd Cir. 2007). 21 Esfeller v. O’Keefe, No. 09-30611 (5th Cir. Aug. 3. 2010). Ultimately, the court upheld the code on the cardinal basis of Tinker v. Des Moines Independent School Dist., 393 U.S. 503 (1969). 22 McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 243 (3rd Cir. 2010). 23 Heenan v. Rhodes, No. 2:09cv75-MHT (WO) (M.D. Ala. Jan. 26, 2011). 24 No. C 05-05328 WHA (N.D. Cal. Aug. 14, 2006), available here. 25 No. CV 110-099 (S.D. Ga. Aug. 20, 2010). 26 No. 2:09-cv-11237, 2010 WL 3026428 (E.D. Mich. July 26, 2010).

reports, Spring 2011