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Sixth Circuit extends Hazelwood to colleges, universities

January 27, 2012

MICHIGAN — A federal appeals court on Friday extended the censorship-friendly Hazelwood student expression standard to public colleges and universities, while allowing a former counseling student’s First Amendment lawsuit to go forward.

“The Hazelwood test, it is true, arose in the context of speech by high school students, not speech by college or graduate students,” Judge Jeffrey Sutton wrote for the 6th U.S. Circuit Court of Appeals. “But for the same reason this test works for students who have not yet entered high school…, it works for students who have graduated from high school. The key word is student.”

The unanimous ruling from a three-judge panel comes in the case of Ward v. Polite.

Julea Ward, a graduate student studying to be a counselor, sued after she was expelled from the counseling program at Eastern Michigan University when she refused to counsel a gay client as part of a practicum course. She said her religious beliefs prevented her from affirming the client’s sexuality; the school argued she was acting unethically.

By attempting to force Ward into affirming homosexual behavior despite her religious beliefs, her attorneys claimed, the school violated her First Amendment rights.

The appellate court ordered that her case proceed to trial, where a jury will decide whether EMU impermissibly punished Ward for her religious expression. The opinion, however, also includes an analysis of the First Amendment rights of students in curricular settings. According to the opinion, the Supreme Court’s Hazelwood standard governs such speech.

Hazelwood allows schools to control “school-sponsored” student speech based on “legitimate pedagogical concerns.”

Adam Goldstein, Student Press Law Center attorney advocate, said extending Hazelwood to colleges is extremely dangerous.

“If they treat this as the law of the circuit,” Goldstein said, “it turns being a student into an infirmity only graduation can cure.”

He said the maturity of high school students was instrumental in the Hazelwood decision. Applying it to colleges and graduate schools, he said, is to treat university students the same as 14-year-olds.

The court did suggest that Hazelwood would apply less stringently to college students because of their maturity level.

“Although it may be reasonable for a principal to delete a story about teenage pregnancy from a high school newspaper, the same could not (likely) be said about a college newspaper,” Sutton wrote in the opinion.

The opinion appears in tension with a 2001 Sixth Circuit case, Kincaid v. Gibson, in which the court rejected Kentucky State University’s confiscation of a college yearbook. The full court held that the yearbook was a public forum and that “Hazelwood has little application to this case.”

The court’s opinion Friday makes no mention of the Kincaid case.

Jeremy Tedesco of Alliance Defense Fund, one of Ward’s attorneys, said he’s unhappy with Hazelwood’s extension, even though the court’s decision ultimately went in favor of his client.

“Frankly, I’m not a huge fan of Hazelwood being extended to the public university context,” Tedesco said. “I think it’s very clear, though, that student publications at the college level wouldn’t — at least shouldn’t — be governed by Hazelwood, and I don’t think the decision says that at all.”

Mark Boonstra, one of EMU’s attorneys, directed questions to university spokesman Walter Kraft.

“This case is about what is in the best interest of a person who is in need of counseling,” Kraft said in a press release. “…(Ethical standards) require that counselors are not to allow their personal values to intrude into their professional work.”

Kraft declined to comment further.

Ward filed suit in April 2009, and District Court Judge Carem Steeh ruled in the university’s favor in July 2010. Friday’s decision overturns that ruling and returns the case to the district court for a jury trial.

The Sixth Circuit includes Michigan, Ohio, Kentucky and Tennessee. The legal precedent applies only to those states.

A similar ruling in Hosty v. Carter prompted a fierce response from student media advocates in the 7th U.S. Circuit Court of Appeals. That court, covering Illinois, Indiana and Wisconsin, found that Hazelwood provides the “starting point” in analyzing student press rights cases.

Illinois passed a state law in 2007 to nullify the impact of Hosty and declare all college publications in Illinois to be “public forums.” Oregon and California have similar protections.

By Nick Glunt, SPLC staff writer

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© 2012 Student Press Law Center

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