SPLC Urges Appeals Court to Vacate Ruling Applying Hazelwood to College Student Speech

FOR IMMEDIATE RELEASE Contact: Frank D. LoMonte, executive director 703.807.1904 / director@splc.org

In a brief filed Monday, the Student Press Law Center asks a Cincinnati-based appeals court to reconsider a January decision that greatly reduces the level of First Amendment protection for students at public colleges.

The SPLC is asking the 6th U.S. Circuit Court of Appeals to rehear the case of an Eastern Michigan University student, Julea Ward, who claims she was kicked out of her chosen academic program because of her Christian religious beliefs.

In a Jan. 27, 2012 ruling, a three-judge panel of the Sixth Circuit decided that – although Ward was a graduate student – she was entitled only to the minimal First Amendment protection that the Supreme Court created for high school students in its 1988 ruling, Hazelwood School District v. Kuhlmeier. The ruling “will imperil the fundamental right of college students to be free from retaliation for what they say and write,” the SPLC says in its brief.

“While the panel’s ruling ultimately went in favor of Julea Ward – allowing her claims to get to trial – her case will be a setback for all college students unless the Circuit rectifies this mistake,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center. “The Supreme Court gave schools the Hazelwood level of discretion to protect the delicate ears of vulnerable children, and Hazelwood simply has no place in graduate school, period.”

Appearing as a friend-of-the-court in two combined cases (Ward v. Wilbanks and Ward v. Polite), the SPLC is asking all 16 active judges on the Sixth Circuit to vacate the panel’s order and hear Ward’s case en banc. The brief argues that the panel greatly expanded Hazelwood – a case about student speech in high school newspapers that are produced as part of curricular lab classes – to a much different context: A graduate student’s one-on-one conversation with a professor. (Ward told her counseling professor that, because of her religious opposition to homosexuality, she was unsuited to counsel a gay student and would refer the client to a more supportive counselor. The university responded by expelling Ward from the counseling program.)

“This Court has repeatedly and unequivocally found Hazelwood inapplicable if the student speaker is not using a school-subsidized forum to communicate a message that audience members could reasonably mistake for an officially sanctioned school message. Moreover, it not employed Hazelwood when the school has sought to mete out discipline rather than regulate or restrict the speech,” the SPLC argues in the brief.

The brief was prepared and filed with the assistance of volunteer legal counsel Susan Grogan Faller and Monica L. Dias from Cincinnati-based Frost Brown Todd, LLP, one of the nation’s premier firms representing media clients. Frost Brown Todd also was counsel to the SPLC in the 2001 case of Kincaid v. Gibson, in which the same circuit court decided that Hazelwood did not apply to the editors of a Kentucky college yearbook. The inconsistency between the Sixth Circuit’s en banc ruling in Kincaid and the panel’s ruling in Ward is one of the main reasons the SPLC is urging the court to rehear the case.

“Having the region’s premier media-law firm put its expertise behind this brief, we believe, will emphasize to the Circuit just how high the stakes are,” LoMonte said. “We are consistently overwhelmed by the generosity of Frost Brown Todd attorneys in giving of their time and talent when the rights of young people are threatened.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.



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