Hosty, Margaret v. Carter, Patricia ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4155
MARGARET L. HOSTY, JENI S. PORCHE,
and STEVEN P. BARBA,
Plaintiffs-Appellees,
v.
PATRICIA CARTER,
Defendant-Appellant,
and
GOVERNORS STATE UNIVERSITY, et al.,
Defendants.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 500—Suzanne B. Conlon, Judge.
____________
ARGUED JANUARY 7, 2003—DECIDED APRIL 10, 2003
REARGUED EN BANC JANUARY 8, 2004—DECIDED JUNE 20, 2005
____________
2 No. 01-4155
Before FLAUM, Chief Judge, and POSNER, COFFEY,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WOOD,
EVANS, and WILLIAMS, Circuit Judges.†
EASTERBROOK, Circuit Judge. Controversy began to swirl
when Jeni Porche became editor in chief of the Innovator,
the student newspaper at Governors State University. None
of the articles concerned the apostrophe missing from the
University’s name. Instead the students tackled meatier
fare, such as its decision not to renew the teaching contract
of Geoffrey de Laforcade, the paper’s faculty adviser.
I
After articles bearing Margaret Hosty’s by-line attacked
the integrity of Roger K. Oden, Dean of the College of Arts
and Sciences, the University’s administration began to take
intense interest in the paper. (Here, and in Part II of this
opinion as well, we relate matters in the light most favor-
able to the plaintiffs.) Both Oden and Stuart Fagan (the
University’s President) issued statements accusing the
Innovator of irresponsible and defamatory journalism.
When the Innovator declined to accept the administration’s
view of its duties—in particular, the paper refused to re-
tract factual statements that the administration deemed
false, or even to print the administration’s responses—
Patricia Carter, Dean of Student Affairs and Services,
called the Innovator’s printer and told it not to print any
issues that she had not reviewed and approved in advance.
The printer was not willing to take the risk that it would
not be paid (the paper relies on student activity funds), and
†
Circuit Judge Sykes, who joined the court after the oral ar-
gument, did not participate in the consideration or decision of this
case.
No. 01-4155 3
the editorial staff was unwilling to submit to prior review.
Publication ceased in November 2000. The paper has since
resumed publication under new management; Porche,
Hosty, and Steven Barba, another of the paper’s reporters,
have continued the debate in court, suing the University, all
of its trustees, most of its administrators, and several of its
staff members for damages under 42 U.S.C. § 1983.
Defendants moved for summary judgment, and the
district court granted the motion with respect to all except
Dean Carter. 2001 U.S. Dist. LEXIS 18873 (N.D. Ill. Nov. 13,
2001); see also 174 F. Supp. 2d 782 (N.D. Ill. 2001). Some
defendants prevailed because, in the district judge’s view,
they had not done anything wrong (or, indeed, anything at
all, and §1983 does not create vicarious liability); others
received qualified immunity. As for Carter, however, the
judge thought that the evidence could support a conclusion
that threatening to withdraw the Innovator’s financial
support violated the first amendment to the Constitution
(applied to the University, as a unit of state government in
Illinois, through the fourteenth). Although Hazelwood
School District v. Kuhlmeier, 484 U.S. 260 (1988), holds that
faculty may supervise and determine the content of a
student newspaper, the district court thought that decision
limited to papers published by high school students as part
of course work and inapplicable to student newspapers
edited by college students as extracurricular activities—and
the judge added that these distinctions are so clearly
established that no reasonable person in Carter’s position
could have thought herself entitled to pull the plug on the
Innovator. Carter took an interlocutory appeal to pursue
her claim of qualified immunity. See Behrens v. Pelletier,
516 U.S. 299 (1996). A panel of this court affirmed, 325 F.3d
945 (2003), and we granted Carter’s petition for rehearing
en banc.
4 No. 01-4155
When entertaining an interlocutory appeal by a public
official who seeks the shelter of qualified immunity, the
threshold question is: “Taken in the light most favorable to
the party asserting the injury, do the facts alleged show the
[public official’s] conduct violated a constitutional right?”
Saucier v. Katz, 533 U.S. 194, 201 (2001). See also, e.g.,
Brosseau v. Haugen, 125 S. Ct. 596, 598 (2004); Newsome v.
McCabe, 319 F.3d 301, 303-04 (7th Cir. 2003). Only if the
answer is affirmative does the court inquire whether the
official enjoys qualified immunity. “[I]f a violation could be
made out on a favorable view of the parties’ submissions,
the next, sequential step is to ask whether the right was
clearly established.” Saucier, 533 U.S. at 201. We address
the issues in the order Saucier specifies: the existence of a
constitutional claim in Part II and immunity in Part III.
II
A
Hazelwood provides our starting point. A high school’s
principal blocked the student newspaper (which was
financed by public funds as part of a journalism class) from
publishing articles that the principal thought inappropriate
for some of the school’s younger students and a potential
invasion of others’ privacy. When evaluating the students’
argument that the principal had violated their right to
freedom of speech, the Court first asked whether the paper
was a public forum. 484 U.S. at 267-70. After giving a
negative answer based on the school’s established policy of
supervising the writing and reviewing the content of each
issue, the Court observed that the school’s subvention of the
paper’s costs distinguished the situation from one in which
students were speaking independently, as in Tinker v. Des
Moines Independent Community School District, 393 U.S.
503 (1969). When a school regulates speech for which it also
No. 01-4155 5
pays, the Court held, the appropriate question is whether
the “actions are reasonably related to legitimate pedagogi-
cal concerns.” 484 U.S. at 273. “Legitimate” concerns, the
Court stated, include setting “high standards for the student
speech that is disseminated under its auspices—standards
that may be higher than those demanded by some newspa-
per publishers or theatrical producers in the ‘real’
world—and [the school] may refuse to disseminate student
speech that does not meet those standards. In addition, a
school must be able to take into account the emotional
maturity of the intended audience in determining whether
to disseminate student speech on potentially sensitive
topics, which might range from the existence of Santa Claus
in an elementary school setting to the particulars of teenage
sexual activity in a high school setting.” Id. at 271-72.
Shortly after this passage the Court dropped a footnote: “A
number of lower federal courts have similarly recognized
that educators’ decisions with regard to the content of
school-sponsored newspapers, dramatic productions, and
other expressive activities are entitled to substantial
deference. 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.” Id. at 273-74 n.7 (citations omitted).
Picking up on this footnote, plaintiffs argue, and the
district court held, that Hazelwood is inapplicable to
university newspapers and that post-secondary educators
therefore cannot ever insist that student newspapers be
submitted for review and approval. Yet this footnote does
not even hint at the possibility of an on/off switch: high
school papers reviewable, college papers not reviewable.
It addresses degrees of deference. Whether some review
is possible depends on the answer to the public-forum ques-
tion, which does not (automatically) vary with the speakers’
age. Only when courts need assess the reasonableness of
6 No. 01-4155
the asserted pedagogical justification in non- public-forum
situations does age come into play, and in a way suggested
by the passage we have quoted from Hazelwood’s text. To
the extent that the justification for editorial control depends
on the audience’s maturity, the difference between high
school and university students may be important. (Not that
any line could be bright; many high school seniors are older
than some college freshmen, and junior colleges are similar
to many high schools.) To the extent that the justification
depends on other matters—not only the desire to ensure
“high standards for the student speech that is disseminated
under [the school’s] auspices” (the Court particularly
mentioned “speech that is . . . ungrammatical, poorly
written, inadequately researched, biased or prejudiced,
vulgar or profane, or unsuitable for immature audiences”,
484 U.S. at 271) but also the goal of dissociating the school
from “any position other than neutrality on matters of
political controversy”, id. at 272—there is no sharp differ-
ence between high school and college papers.
The Supreme Court itself has established that age does
not control the public-forum question. See generally
Symposium: Do Children Have the Same First Amendment
Rights As Adults?, 79 Chi.-Kent L. Rev. 3-313 (2004)
(including many articles collecting and discussing these
decisions). So much is clear not only from decisions such as
Tinker, which held that public school students have a right
of non-disruptive personal expression on school premises,
but also from the decisions concerning the use of school
funds and premises for religious expression. See, e.g.,
Lamb’s Chapel v. Center Moriches Union Free School
District, 508 U.S. 384 (1993); Rosenberger v. Rector and
Visitors of the University of Virginia, 515 U.S. 819 (1995);
Good News Club v. Milford Central School, 533 U.S. 98(2001). See also Hedges v. Wauconda Community Unit
School District No. 118, 9 F.3d 1295 (7th Cir. 1993). These
No. 01-4155 7
decisions hold that no public school, of any level—primary,
secondary, or post-secondary—may discriminate against
religious speech in a public forum (including classrooms
made available to extracurricular activities), or withhold
funding that would be available to student groups espous-
ing sectarian views. Good News Club, which dealt with
student clubs in an elementary school, deemed dispositive
(533 U.S. at 110) a decision about the first amendment
rights of college students. Having opened its premises to
student clubs, and thus created a limited-purpose public
forum, even an elementary school could not supervise or
censor the views expressed at a meeting of the Good News
Club.
If private speech in a public forum is off-limits to regula-
tion even when that forum is a classroom of an elementary
school (the holding of Good News Club) then speech at a
non-public forum, and underwritten at public expense, may
be open to reasonable regulation even at the college
level—or later, as Rust v. Sullivan, 500 U.S. 173 (1991),
shows by holding that the federal government may insist
that physicians use grant funds only for the kind of speech
required by the granting authority. Cf. National Endow-
ment for the Arts v. Finley, 524 U.S. 569 (1998). We hold,
therefore, that Hazelwood’s framework applies to subsidized
student newspapers at colleges as well as elementary and
secondary schools. See also Axson-Flynn v. Johnson, 356
F.3d 1277 (10th Cir. 2004) (Hazelwood supplies the frame-
work for evaluating collegiate speech and allows regulation
when the speech is connected to the curriculum); Bishop
v. Aronov, 926 F.2d 1066 (11th Cir. 1991) (Hazelwood
supplies the framework for evaluating collegiate speech and
allows regulation when readers might infer the school’s
approval).
8 No. 01-4155
B
Hazelwood’s first question therefore remains our principal
question as well: was the reporter a speaker in a public
forum (no censorship allowed?) or did the University either
create a non-public forum or publish the paper itself (a
closed forum where content may be supervised)? Plaintiffs
contend, and the district court agreed, that the Court found
a public forum missing in Hazelwood only because the
paper was prepared as part of the journalism curriculum.
By contrast, the Innovator was an extracurricular activity,
and thus beyond all control, the district court concluded.
Yet if the Constitution establishes a bright line between
curricular activities and all other speech, then decisions
such as Rust and Finley are inexplicable, for they hold that
speakers who have completed their education still must
abide by the conditions attached to public subsidies of
speech and other expressive activities. See also Robert C.
Post, Subsidized Speech, 106 Yale L.J. 151 (1996).
Suppose the University had given the Innovator $10,000
to publish a semester’s worth of newspapers, and Porche
then had decided that the students would get more benefit
from a booklet describing campus life and cultural activities
in the surrounding neighborhoods. Both paper and booklet
are forms of speech, but the fact that the publication was
not part of the University’s curriculum and did not carry
academic credit would not have allowed Porche to divert the
money from one kind of speech to the other.
Or suppose that the publication in question were one un-
der the University’s direct management—say, its alumni
magazine. If the University offered course credit to jour-
nalism students who prepared a publishable puff piece, the
right to control would be evident. The University, after all,
is the alumni magazine’s publisher; the contents are its
speech; units of state and local government are entitled to
No. 01-4155 9
speak for themselves. See Johanns v. Livestock Marketing
Ass’n, No. 03-1164 (U.S. May 23, 2005), slip op. 6-8; Univer-
sity of Wisconsin v. Southworth, 529 U.S. 217, 229 (2000);
Keller v. State Bar, 496 U.S. 1, 12-13 (1990). That institu-
tions can speak only through agents does not allow the
agents to assume control and insist that submissions
graded D-minus appear under the University’s masthead.
Livestock Marketing Ass’n has dispelled all doubt on that
score.
Now take away the course credit and assume that the
alumni magazine hires students as stringers and pays
by the word for any articles accepted and printed. The
University would remain the operator of this non-public for-
um and could pick and choose from among the submissions,
printing only those that best expressed the University’s own
viewpoint. Thus although, as in Hazelwood, being part of the
curriculum may be a sufficient condition of a non-public
forum, it is not a necessary condition. Extracurricular activ-
ities may be outside any public forum, as our alumni-maga-
zine example demonstrates, without also falling outside all
university governance. Let us not forget that academic
freedom includes the authority of the university to manage
an academic community and evaluate teaching and scholar-
ship free from interference by other units of government,
including the courts. See University of Pennsylvania v.
EEOC, 493 U.S. 182 (1990); University of Michigan v.
Ewing, 474 U.S. 214 (1985); Southworth, 529 U.S. at 237-39(Souter, J., concurring).
C
What, then, was the status of the Innovator? Did the
University establish a public forum? Or did it hedge the
funding with controls that left the University itself as the
newspaper’s publisher? If the paper operated in a public
10 No. 01-4155
forum, the University could not vet its contents. See
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546(1975). But if underwritten student publications at
Governors State University are a non-public forum, then it
becomes important whether Dean Carter had legitimate
pedagogical reasons for her action. We do not think it pos-
sible on this record to determine what kind of forum the
University established or evaluate Dean Carter’s justifica-
tions. But the question posed by Saucier is not who wins in
the end, but whether the evidence makes out a constitu-
tional claim when taken in the light most favorable to the
plaintiff. These facts would permit a reasonable trier of fact
to conclude that the Innovator operated in a public forum
and thus was beyond the control of the University’s admin-
istration.
The Innovator did not participate in a traditional public
forum. Freedom of speech does not imply that someone else
must pay. The University does not hand out money to ever-
yone who asks. But by establishing a subsidized student
newspaper the University may have created a venue that
goes by the name “designated public forum” or “limited-
purpose public forum”. See United States v. American
Library Association, 534 U.S. 194 (2003); United States v.
Kokinda, 497 U.S. 720 (1990); Perry Education Association
v. Perry Local Educators’ Association, 460 U.S. 37 (1983).
Participants in such a forum, declared open to speech ex
ante, may not be censored ex post when the sponsor decides
that particular speech is unwelcome. The classrooms used
for meetings in Good News Club were designated public
forums, and because the school allowed any student group
to use the space the Court held that it could not forbid
religious speech. In the same way, a school may declare the
pages of the student newspaper open for expression and
thus disable itself from engaging in viewpoint or content
discrimination while the terms on which the forum operates
No. 01-4155 11
remain unaltered. Dean Carter did not purport to alter the
terms on which the Innovator operated; that authority
belonged to the Student Communications Media Board. And
the rules laid down by the Board, though ambiguous, could
be thought (when considered as favorably to plaintiffs as the
record allows) to create a designated public forum.
Defendants concede that the Board is the publisher of the
Innovator and other subsidized print and broadcast media.
The Board has seven members, all chosen by the Student
Senate: four students, two faculty members, and one “civil
service or support unit employee of the university.” The
Board determines how many publications it will underwrite
(subject to the availability of funds, which as in Southworth
and Rosenberger come from student activities fees), and the
general character of each. It appoints “for the period of one
year, the head of each student media staff.” The Board’s
policy is that each funded publication “will determine
content and format . . . without censorship or advance
approval”. If this is all there is to it, then the Innovator is
in the same position as the student speakers in Southworth
and Rosenberger: a designated public forum has been
established, and the faculty cannot censor speech within it.
When viewing matters in the light most favorable to the
students, we stop here, because other matters are cloudy.
Two things have the potential to cast matters in a dif-
ferent light if a trial were to occur. One is that the Board’s
charter provides that it is “responsible to the Director of
Student Life.” Perhaps the Director of Student Life (who
appears to be one of Dean Carter’s subordinates) has
established criteria for subsidized student publications.
None is in the record, however, so this possibility does not
matter. The other is that each funded publication has a
faculty adviser. The parties disagree not only about who the
adviser was at the critical time (plaintiffs say that
de Laforcade remained their adviser even after he left the
12 No. 01-4155
University’s faculty; Carter insists that a different person
filled that position) but also about whether the adviser
just offers advice (plaintiffs’ view) or exercises some control
(Carter’s view). Because the district court acted on a motion
for summary judgment, it assumed (as do we) that plain-
tiffs’ perspective is the correct one. On that understanding,
the Board established the Innovator in a designated public
forum, where the editors were empowered to make their
own decisions, wise or foolish, without fear that the admin-
istration would stop the presses.
III
Qualified immunity nonetheless protects Dean Carter
from personal liability unless it should have been “clear to
a reasonable [public official] that his conduct was unlawful
in the situation he confronted.” Saucier, 533 U.S. at 202.
“This inquiry, it is vital to note, must be undertaken in light
of the specific context of the case, not as a broad general
proposition”. Id. at 201. See also, e.g., Wilson v. Layne, 526
U.S. 603, 614-18 (1999); Anderson v. Creighton, 483 U.S.
635 (1987); Greenberg v. Kmetko, 840 F.2d 467 (7th Cir.
1988) (en banc). One might well say as a “broad general
proposition” something like “public officials may not censor
speech in a designated public forum,” but whether Dean
Carter was bound to know that the Innovator operated in
such a forum is a different question altogether.
The district court held that any reasonable college
administrator should have known that (a) the approach of
Hazelwood does not apply to colleges; and (b) only speech
that is part of the curriculum is subject to supervision. We
have held that neither of these propositions is correct— that
Hazelwood’s framework is generally applicable and depends
in large measure on the operation of public-forum analysis
rather than the distinction between curricular and extra-
curricular activities.
No. 01-4155 13
But even if student newspapers at high schools and
colleges operate under different constitutional frameworks,
as both the district judge and our panel thought, it greatly
overstates the certainty of the law to say that any rea-
sonable college administrator had to know that rule. The
question had been reserved in Hazelwood, and the Supreme
Court does not identify for future decision questions that
already have “clearly established” answers. See Wilson v.
Layne, 526 U.S. 603, 614-18 (1999). Post- Hazelwood
decisions likewise had not “clearly established” that college
administrators must keep hands off all student newspapers.
As we mentioned in Part II.A, the tenth and eleventh
circuits have used Hazelwood as the framework for evaluat-
ing the acts of colleges as well as high schools. One circuit
has said otherwise. See Student Government Ass’n v.
University of Massachusetts, 868 F.2d 473, 480 n.6 (1st Cir.
1989) (asserting, in sole reliance on Hazelwood’s footnote 7,
that the Supreme Court itself “holds” that Hazelwood’s
approach does not apply to post- secondary education). The
approach of others is hard to classify. See Kincaid v.
Gibson, 236 F.3d 342, 346 n.5 (6th Cir. 2001) (en banc)
(stating, in reliance on the parties’ agreement, that
Hazelwood has “little application” to collegiate publications
but not explaining what this means, or how a constitutional
framework can apply “just a little”). This circuit had not
spoken on the subject until our panel’s opinion, which
post-dated Dean Carter’s actions.
Many aspects of the law with respect to students’ speech,
not only the role of age, are difficult to understand and
apply, as we remarked in Baxter v. Vigo County School
Corp., 26 F.3d 728 (7th Cir. 1994), when holding school
administrators entitled to qualified immunity for banning
certain message-bearing T-shirts that the elementary-
school pupils claimed were protected under Tinker. See also,
e.g., Brown v. Li, 308 F.3d 939 (9th Cir. 2003), in which the
members of the appellate panel articulated three distinct
14 No. 01-4155
and incompatible views about whether Hazelwood applies
to collegiate settings and how the first amendment affects
relations between college faculty and students’ expression.
Neither plaintiffs, who have elected to appear pro se, nor
the amici curiae who have ably supported their position in
this court, contend that Dean Carter owes damages from
her own purse if Hazelwood establishes the appropriate
legal framework. For reasons that should by now be evi-
dent, the implementation of Hazelwood means that both
legal and factual uncertainties dog the litigation—and it is
the function of qualified immunity to ensure that such
uncertainties are resolved by prospective relief rather than
by financial exactions from public employees. “Qualified
immunity shields an official from suit when she makes a
decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances she
confronted.” Brosseau, 125 S. Ct. at 599. That description is
as apt here as it was in Brosseau.
Public officials need not predict, at their financial peril,
how constitutional uncertainties will be resolved. Disputes
about both law and fact make it inappropriate to say that
any reasonable person in Dean Carter’s position in
November 2000 had to know that the demand for review
before the University would pay the Innovator’s printing
bills violated the first amendment. She therefore is entitled
to qualified immunity from liability in damages.
REVERSED
EVANS, Circuit Judge, joined by ROVNER, WOOD, and
WILLIAMS, Circuit Judges, dissenting. In concluding that
Hazelwood extends to a university setting, the majority
applies limitations on speech that the Supreme Court
No. 01-4155 15
created for use in the narrow circumstances of elementary
and secondary education. Because these restrictions on free
speech rights have no place in the world of college and
graduate school, I respectfully dissent.
The majority’s conclusion flows from an incorrect prem-
ise—that there is no legal distinction between college and
high school students. In reality, however, “[t]he Court long
has recognized that the status of minors under the law is
unique in many respects.” Bellotti v. Baird, 443 U.S. 622,
633 (1979). Age, for which grade level is a very good
indicator,1 has always defined legal rights. As the Court has
noted:
Constitutional rights do not mature and come in-
to being magically only when one attains the state-
defined age of majority. Minors, as well as adults,
are protected by the Constitution and possess
constitutional rights. The Court indeed, however,
long has recognized that the State has somewhat
broader authority to regulate the activities of chil-
dren than of adults.
Planned Parenthood of Missouri. v. Danforth, 428 U.S. 52,
74 (1976) (internal citations omitted).
This principle is clear with respect to free speech rights,
where the Court has delineated a consistent line between
high-school-age students and those at the university level.
As the Court noted in Board of Regents of the University of
Wisconsin System v. Southworth, 529 U.S. 217, 238 n.4
(2000), “the right of teaching institutions to limit expressive
1
According to the U.S. Census Bureau, only about one percent of
those enrolled in American colleges and universities in 2002 were
under the age of 18. See 2002 U.S. Census Bureau Current
Population Survey (CPS) Rep., Table A-6, “Age Distribution of
College Students 14 years Old and Over, by Sex: October 1947 to
2002.”
16 No. 01-4155
freedom of students ha[s] been confined to high schools
whose students and their schools’ relation to them are
different and at least arguably distinguishable from their
counterparts in college education.” (Internal citations
omitted.) See also Healy v. James, 408 U.S. 169, 180 (1972)
(“[T]he precedents of this Court leave no room for the view
that, because of the acknowledged need for order,
First Amendment protections should apply with less force
on college campuses than in the community at large.”).
There are two reasons why the law treats high school
students differently than it treats college students, who
“are, of course, young adults,” Widmar v. Vincent, 454 U.S.
263, 274 n.14 (1981): high school students are less mature
and the missions of the respective institutions are different.
These differences make it clear that Hazelwood does not
apply beyond high school contact.
It is self-evident that, as a general matter, juveniles are
less mature than adults. Indeed, “during the formative
years of childhood and adolescence, minors often lack the
experience, perspective, and judgment to recognize and
avoid choices that could be detrimental to them.” Bellotti,
443 U.S. at 635. See also Ginsberg v. New York, 390 U.S.
629, 649-50 (1968) (Stewart, J., concurring) (footnote
omitted) (“[A]t least in some precisely delineated areas, a
child—like someone in a captive audience—is not possessed
of that full capacity for individual choice which is the
presupposition of First Amendment guarantees.”). It is this
reasoning that dictated the results in Hazelwood and Bethel
School District No. 403 v. Fraser. In Hazelwood, the Court
emphasized that a different First Amendment standard is
appropriate in a high school setting because those students
are young, emotionally immature, and more likely to be
inappropriately influenced by school-sponsored speech on
controversial topics. Hazelwood, 484 U.S. at 272. It was,
therefore, reasonable to restrict publication of an article
about teenage pregnancy. Bethel School District No. 403 v.
No. 01-4155 17
Fraser, 478 U.S. 675 (1986), where the Court permitted a
high school to sanction a student for making a lewd student
council election speech, makes a similar point. The Court
emphasized that “[t]he speech could well be seriously
damaging to its less mature audience . . . . Id. at 683-84(emphasis added).2 The same concerns simply do not apply
to college students, who are certainly (as a general matter)
more mature, independent thinkers. Tilton v. Richardson,
403 U.S. 672, 686 (1971), establishes this point. The Court
upheld a federal law that provided funding to church-
related colleges and universities for construction of facilities
for secular educational purposes. The Court noted that pre-
college students may not have the maturity to make their
own decisions on religion; however, “college students are
less impressionable and less susceptible to religious indoctri-
nations.”
Not only is there a distinction between college and high
school students themselves, the missions of the two institu-
tions are quite different. Elementary and secondary schools
have “custodial and tutelary responsibility for children,” Bd.
of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822,
829-30 (2002) (holding that “Fourth Amendment rights . . .
are different in public schools than elsewhere”), and are
largely concerned with the “inculcation” of “values.” Fraser,
478 U.S. at 683; see also Ambach v. Norwick, 441 U.S. 68,
76 (1979) (“The importance of public schools in the prepara-
tion of individuals for participation as citizens, and in the
preservation of the values on which our society rests, long
2
Other decisions of the Court outside the free speech arena
likewise emphasize that greater restrictions are permitted on the
rights of juveniles because they are less mature. For example, in
Lee v. Weisman, 505 U.S. 577 (1992), the Court noted that “there
are heightened concerns with protecting freedom of conscience
from subtle coercive pressure in the elementary and secondary
public schools.” Id. at 592.
18 No. 01-4155
has been recognized by our decisions[.]”). A university has
a different purpose—to expose students to a “marketplace
of ideas.” Keyishian v. Bd. of Regents of the Univ. of N.Y.,
385 U.S. 589, 603 (1967) (emphasizing that the “Nation’s
future depends upon leaders trained through wide exposure
to that robust exchange of ideas . . . .”). See also Bd. of
Regents v. Southworth, 529 U.S. 217, 231 (2000)
(“[R]ecognition must be given as well to the important and
substantial purposes of the University, which seeks to
facilitate a wide range of speech.”); Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U.S. 819, 836 (1995)
(noting that intellectual curiosity of students remains today
a central determination of a university’s success and
asserting that restriction of that curiosity “risks the
suppression of free speech and creative inquiry in one of the
vital centers for the Nation’s intellectual life, its college and
university campuses”); Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 312 (1978) (noting that an atmosphere of
“ ‘speculation, experiment and creation’ ” is “essential to the
quality of higher education” (quoting Sweezy v. New
Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J.,
concurring))); Widmar, 454 U.S. at 267-68 n.5 (“The college
classroom with its surrounding environs is peculiarly the
‘marketplace of ideas.’ ”).
As the Supreme Court perhaps best articulated in Healy
v. James:
[T]he precedents of this Court leave no room for the
view that, because of the acknowledged need for
order, First Amendment protections should apply
with less force on college campuses than in the
community at large. Quite to the contrary, “[t]he
vigilant protection of constitutional freedoms is
nowhere more vital than in the community of
American schools.” The college classroom with its
surrounding environs is peculiarly the “ ‘market-
place of ideas,’ ” and we break no new constitutional
No. 01-4155 19
ground in affirming this Nation’s dedication to
safeguarding academic freedom.
408 U.S. 169, 180-81 (1972) (quoting Shelton v. Tucker, 364
U.S. 479, 487 (1960), and Keyishian, 385 U.S. at 603).
Based on this important notion, I do not believe it is ap-
propriate for this court to extend Hazelwood to the college
and university setting.
The majority’s holding, furthermore, is particularly unfor-
tunate considering the manner in which Hazelwood has
been used in the high school setting to restrict controversial
speech. See, e.g., Planned Parenthood v. Clark County Sch.
Dist., 941 F.2d 817 (9th Cir. 1991) (holding that the school
district’s justification for refusing to publish family plan-
ning advertisements in high school newspapers was
reasonable under the Hazelwood standard); Baxter v. Vigo
County Sch. Corp., 26 F.3d 728, 737-38 (7th Cir. 1994)
(upholding the decision of an elementary school principal
who prohibited a student from wearing shirts with mes-
sages such as “Unfair Grades” and “Racism”); Poling v.
Murphy, 872 F.2d 757, 764 (6th Cir. 1989) (upholding the
decision of a high school administration to exclude a stu-
dent from a student council race because he made a rude
comment about the assistant principal in a speech delivered
at a school assembly).
If the plaintiffs’ allegations are true, this case epitomizes
this concern. The Innovator, as opposed to writing merely
about football games, actually chose to publish hard-hitting
stories. And these articles were critical of the school
administration. In response, rather than applauding the
young journalists, the University decided to prohibit publi-
cation unless a school official reviewed the paper’s content
before it was printed. Few restrictions on speech seem to
run more afoul of basic First Amendment values. First,
prior restraints are particularly noxious under the
Constitution. See Nebraska Press Ass’n v. Stuart, 427 U.S.
20 No. 01-4155
539, 559 (1976) (“prior restraints on speech and publication
are the most serious and the least tolerable infringement on
First Amendment rights”); Near v. Minnesota, 283 U.S. 697,
713 (1931) (“it has been generally, if not universally,
considered that it is the chief purpose of the [First Amend-
ment’s free press] guaranty to prevent previous restraints
upon publication”). Second, and even more fundamental, as
Justice Frankfurter stated (albeit in somewhat dated
language) in Baumgartner v. United States, 322 U.S. 665,
673-74 (1944), “one of the prerogatives of American citizen-
ship is the right to criticize public men and measures.”
College students—voting-age citizens and potential future
leaders—should feel free to question, challenge, and
criticize government action. Nevertheless, as a result of
today’s holding, Dean Carter could have censored the
Innovator by merely establishing “legitimate pedagogical
reasons.” This court now gives the green light to school
administrators to restrict student speech in a manner
inconsistent with the First Amendment.
Finally, I disagree with the majority’s conclusion that
Dean Carter is entitled to qualified immunity. Prior to
Hazelwood, courts were consistently clear that university
administrators could not require prior review of student
media or otherwise censor student newspapers. See, e.g.,
Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983); Schiff v.
Williams, 519 F.2d 257 (5th Cir. 1975); Joyner v. Whiting,
477 F.2d 456, 460 (4th Cir. 1973); Bazaar v. Fortune, 476
F.2d 570 (5th Cir. 1973), adopted en banc in 489 F.2d 225(5th Cir. 1973); Trujillo v. Love, 322 F. Supp. 1266 (D. Colo.
1971); Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass.
1970); Dickey v. Alabama St. Bd. of Educ., 273 F. Supp. 613(M.D. Ala. 1967), vacated as moot sub nom. Troy St. Univ.
v. Dickey, 402 F.2d 515 (5th Cir. 1968); Panarella v.
Birenbaum, 32 N.Y.2d 108, 343 N.Y.S. 2d 333 (N.Y. 1973);
Mazart v. State, 109 Misc.2d 1092, 441 N.Y.S. 2d 600 (N.Y.
Ct. Cl. 1981); Milliner v. Turner, 436 So. 2d 1300 (La. Ct.
App.1983).
No. 01-4155 21
Hazelwood did not change this well-established rule. So,
the question becomes, did anything after Hazelwood occur
that would suggest to a reasonable person in Dean Carter’s
position that she could prohibit publication simply because
she did not like the articles it was publishing?3 The answer
is clearly “no.” In fact, a review of the cases, including those
the majority relies on, establishes that no case law would
have led any reasonable official in Dean Carter’s position to
believe she had such power.
To begin, both the First Circuit (explicitly) and Sixth
Circuit (implicitly) are of the view that Hazelwood does not
apply in the university setting. In Student Government
Association v. Board of Trustees of the University of Massa-
chusetts, 868 F.2d 473, 480 n.6 (1st Cir. 1989), the First
Circuit held that Hazelwood “is not applicable to college
newspapers.” In Kincaid v. Gibson, 236 F.3d 342 (6th Cir.
2001) (en banc), a dispute involving a college yearbook, the
court determined that Hazelwood had “little application” to
the case. Id. at 346 n.5. In so noting, the court ruled that
the university’s yearbook constituted a limited public forum
in which content-based regulations were subject to strict
scrutiny. The court then held that the administration’s
decision to confiscate the yearbook, due to unhappiness over
its content, violated the First Amendment.
3
Considering that the law was clearly established that college
administrators could not control school newspapers, the majority
wrongly focuses on the fact that post-Hazelwood decisions had not
“clearly established that college administrators must keep hands
off all student newspapers.” The question is not whether later
decisions established that college administrators “must keep
hands off,” but rather whether later decisions did anything to
change the already clearly established rule. In other words, did
decisions after Hazelwood say anything to suggest that college
administrators could censor school newspapers.
22 No. 01-4155
The decisions the majority cites in support of its position,
moreover, are inapplicable. Bishop v. Aronov, 926 F.2d 1066(11th Cir. 1991), and Axson-Flynn v. Johnson, 356 F.3d
1277 (10th Cir. 2004), both concerned free speech rights
within the classroom. Bishop held that a university could
order a professor to stop interjecting his personal religious
beliefs into his class comments during instruction time.
Axson-Flynn held that an acting student at a university
could be required to say script lines that conflict with her
Mormon faith as part of the curriculum. These are very
different situations than free speech rights of student jour-
nalists engaged in an extracurricular activity. Indeed, the
Tenth Circuit recognized such a distinction and explicitly
limited its holding: “We hold that the Hazelwood framework
is applicable in a university setting for speech that occurs
in a classroom as part of a class curriculum.” Id. at 1289. It
specifically noted, “We acknowledge that some circuits have
cast doubt on the application of Hazelwood in the context of
university extracurricular activities. However, because
Axson-Flynn’s speech occurred as part of a curricular
assignment during class time and in the classroom, we need
not reach any analysis of university’s students’ extracurric-
ular speech.” Id. at 1286 n.6 (emphasis added) (internal
citations omitted). Finally, I am hard-pressed to see the
relevance of Settle v. Dickson County School Board, 53 F.3d
152 (6th Cir. 1995). That case concerned a ninth grader who
challenged her teacher’s decision not to accept a research
paper because it was on an unapproved topic. Regardless,
Kincaid, not Settle, constitutes the Sixth Circuit’s definitive
word on the issue.4
4
The majority wisely does not, as Dean Carter does, rely on the
Ninth Circuit’s decision in Brown v. Li, 308 F.3d 939 (2002),
cert. denied, 538 U.S. 908 (2003), and the decision of a panel of the
Sixth Circuit in Kincaid, 191 F.3d 719 (1999). With respect to
(continued...)
No. 01-4155 23
Therefore, considering that no court, both before or after
Hazelwood, has held that a university may censor a student
newspaper, and the only authorities to suggest otherwise
are not directly on point, I believe that it was “clearly
established” that the University could not deny funding to
the school newspaper it found objectionable.
The majority also states that Dean Carter is entitled
to qualified immunity because “A reasonable person in
Dean Carter’s position was not bound to recognize that
the Innovator operated in a designated public forum.” Al-
though an objective standard, I believe it is noteworthy
that, as the district court noted, “Defendants concede that
the Innovator serves as a public forum.” 174 F. Supp. 2d
782, 786 (N.D. Ill. 2001). A review of the facts, accepting all
well-pleaded allegations in the complaint as true and
drawing all reasonable inferences in favor of the plaintiff,
support Dean Carter’s litigation strategy below. Governors
State University, by express policy and practice, placed
exclusive editorial control of the newspaper with the
student editors. Indeed, its own policy stated that the
student staff “will determine content and format of their
respective publications without censorship or advance
approval.” The Innovator is an independent publication
organized and published by students on their own time. The
publication is not part of an academic program, but rather
an extracurricular activity. The students are provided an
4
(...continued)
Brown, only one judge on the panel, Judge Graber, approved of
the application of Hazelwood. Judge Graber, moreover, applied
Hazelwood only in the context of a student’s masters thesis in-
cluded in the school’s curriculum. Brown, 308 F.3d at 949. Again,
a very different situation than the one presented here. As for
Kincaid, that panel decision had already been vacated by the full
circuit when Dean Carter restrained publication of the Innovator.
See 197 F.3d 818 (6th Cir. 1999) (vacating panel decision).
24 No. 01-4155
advisor, but it is not a class taught by a faculty member,
and the advisor did not make any content decisions, only
advice was offered. Considering these facts, a reasonable
person in Dean Carter’s shoes would have believed the
Innovator operated as a public forum.
In conclusion, because I believe that Hazelwood does not
apply, no pedagogical concerns can justify suppressing the
student speech here. Dean Carter violated clearly estab-
lished First Amendment law in censoring the student news-
paper. I would affirm the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-20-05