Hosty, Margaret v. Carter, Patricia , 325 F.3d 945 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4155
MARGARET HOSTY, JENI PORCHE, and
STEVEN P. BARBA, individually and d/b/a INNOVATOR,
Plaintiffs-Appellees,
v.
PATRICIA CARTER,
Defendant-Appellant,
and
GOVERNORS STATE UNIVERSITY; BOARD OF TRUSTEES
OFGOVERNORS STATE UNIVERSITY; DONALD BELL;
TOMMY DASCENZO; STUART FAGAN; PAUL KEYS;
JANE WELLS; DEBRA CONWAY; PEGGY WOODARD;
FRANCIS BRADLEY; PETER GUNTHER; ED KAMMER,
DOROTHY FERGUSON; JUDY YOUNG; CLAUDE HILL IV;
and PAUL SCHWELLENBACH,
Defendants.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 0500—Suzanne B. Conlon, Judge.
____________
ARGUED JANUARY 7, 2003—DECIDED APRIL 10, 2003
____________
2 No. 01-4155
Before COFFEY, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Fifteen years ago, in Hazelwood
School District v. Kuhlmeier, 484 U.S. 260 (1988), the
Supreme Court held that high school administrators have
broad powers to censor school-sponsored newspapers if
their actions are supported by valid educational purposes.
In this case, involving an appeal from an order denying
summary judgment on qualified immunity grounds, we are
asked to consider whether the principles of Hazelwood
apply to public college and university students.
The three plaintiffs in this case—Porche, Hosty, and
Baron1—are (or, when this case began, were) students
at Governors State University, a state-run institution in
University Park, Illinois. They were appointed by the
school’s “Student Communications Media Board” (SCMB)
to serve as editor-in-chief, managing editor, and staff
reporter for its newspaper, the Innovator, which is sup-
ported by student activity fees. According to the plaintiffs,
whose claims we must credit at this stage of the proceed-
ings, they occasionally published articles and letters to the
editor that were critical of certain faculty members and
the school’s administration.
When our three plaintiffs took their positions at the
Innovator and during all times relevant to this lawsuit, the
policy of the SCMB was that the student staff of the
Innovator “will determine content and format of their
respective publications without censorship or advance ap-
proval.” (Emphasis added.) Although the newspaper’s fac-
ulty adviser often read stories intended for publication
at the request of the student editors, the adviser did not
make content decisions. Only advice was offered.
1
The district court and the Illinois attorney general use “Barba.”
We use “Baron,” the name the plaintiffs-appellees use.
No. 01-4155 3
In the fall of 2000, Patricia Carter, the university’s dean
of Student Affairs and Services, twice called Charles
Richards, president of Regional Publishing, the company
which held the contract for printing the Innovator. In those
calls, Dean Carter told Richards that a school official
must review the Innovator’s content before it could be
printed. She instructed Richards to call her when he re-
ceived future issues of the paper.
In a November 14, 2000, memo delivered to the Innovator
editors, Richards relayed the substance of his conversa-
tions with Dean Carter. He said Dean Carter told him his
company was not to publish any more issues of the Innova-
tor without prior approval by a university official. He noted,
however, that his understanding of the law was that prior
approval by school officials was not cricket. However, he
also observed that he was “no attorney, so that the final
decision of the handling of this matter should not be left
to me.” The student editors understood Richards’ comments
to mean that his company would not print additional
editions of the paper until the issue of Dean Carter’s prior
approval requirement was settled. A company representa-
tive confirmed that it did not want to risk printing the
newspaper and then not get paid for the effort.
Sparks were ready to fly. The student editors filed this
suit against 17 defendants, listing a litany of grievances
in their complaint. Ultimately, all defendants were dis-
missed (mostly due to Eleventh Amendment problems) from
the suit. All, that is, except Dean Carter, who unsuccess-
fully tried to escape on a claim of qualified immunity. She
is here today on a narrow interlocutory appeal from the
district court’s order denying her request to exit the suit
before any further proceedings are required.
The pivotal issue for us is whether Dean Carter was
entitled to qualified immunity. Her claim is that the law
was not clearly established that her request to review and
4 No. 01-4155
approve the Innovator prior to printing might violate the
student editors’ rights under the First Amendment.
Qualified immunity protects government officials per-
forming discretionary functions when their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For several
decades, courts have consistently held that student media
at public colleges and universities are entitled to strong
First Amendment protections. These courts have held
that school administrators can only censor student media
if they show that the speech in question is legally unpro-
tected or if they can demonstrate that some significant and
imminent physical disruption of the campus will result
from the publication’s content. Attempts by school officials,
like Dean Carter here, to censor or control constitution-
ally protected expression in student-edited media have
consistently been viewed as suspect under the First Amend-
ment. See, e.g., Rosenberger v. Rector and Visitors of Univ.
of Va., 515 U.S. 819 (1995) (university officials constitution-
ally prohibited from denying funding to student religious
magazine based on content); Kincaid v. Gibson, 236 F.3d
342 (6th Cir. 2001) (en banc) (confiscation of college stu-
dent yearbook by administrators unhappy with content
violates First Amendment). The prohibition on admini-
strative censorship has extended to cases where school
officials required mandatory prior review of student
media, Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass.
1970); Mazart v. State, 441 N.Y.S.2d 600 (N.Y. Ct. Cl.
1981); Milliner v. Turner, 436 So. 2d 1300 (La. Ct. App.
1983); Trujillo v. Love, 322 F. Supp. 1266 (D. Colo. 1971),
and other indirect forms of censorship, when undertaken
to affect content. See, e.g., Stanley v. Magrath, 719 F.2d
279 (8th Cir. 1983) (striking down university’s attempt
to restructure funding to student newspaper because of
controversial issue); Dickey v. Alabama St. Bd. of Educ.,
No. 01-4155 5
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) (suspension of student newspaper editor for content-
related reasons held unconstitutional); Schiff v. Williams,
519 F.2d 257 (5th Cir. 1975) (reinstating student editors
who had been removed because of administrators’ objec-
tions to poor grammar, spelling, and syntax).
As one federal court of appeals noted in 1973:
Censorship of constitutionally protected expression
cannot be imposed by suspending the editors, suppress-
ing circulation, requiring imprimatur of controversial
articles, excising repugnant material, withdrawing fi-
nancial support, or asserting any other form of censorial
oversight based on the institution’s power of the purse.
Joyner v. Whiting, 477 F.2d 456, 460 (4th Cir. 1973).
The court of appeals for the Fifth Circuit, sitting en banc,
expressed similar sentiments in ruling that University
of Mississippi officials acted illegally when they prohib-
ited the publication of a school-sponsored student literary
magazine because it contained “earthy language”:
The University here is clearly an arm of the state and
this single fact will always distinguish it from the
purely private publisher as far as censorship rights
are concerned. It seems a well-established rule that
once a University recognizes a student activity which
has elements of free expression, it can act to censor
that expression only if it acts consistent with First
Amendment constitutional guarantees.
Bazaar v. Fortune, 476 F.2d 570, 574 (5th Cir. 1973),
adopted en banc in 489 F.2d 225 (5th Cir. 1973), cert.
denied, 416 U.S. 1995 (1974).
Dean Carter’s contention that she could not reasonably
have known that it was illegal to order the Innovator’s
printer to halt further publication of the newspaper or to
6 No. 01-4155
require prior approval of the newspaper’s content defies
existing, well-established law. Because her actions, if true,
violated clear constitutional rights of which she should
have been aware, the district court was correct to decline
her request to exit the suit via qualified immunity, if
Hazelwood has not muddled the landscape to such an
extent that the law has become unclear.
In Hazelwood, the Supreme Court determined that “the
First Amendment rights of students in the public schools
are not automatically coextensive with the rights of adults
in other settings and must be applied in light of the special
characteristics of the school environment.” Hazelwood, 484
U.S. at 266 (internal citations and quotation marks omit-
ted). But Hazelwood’s rationale for limiting the First
Amendment rights of high school journalism students is
not a good fit for students at colleges or universities. The
differences between a college and a high school are far
greater than the obvious differences in curriculum and
extracurricular activities. The missions of each are dis-
tinct reflecting the unique needs of students of differing
ages and maturity levels.
According to U.S. Census Bureau statistics, provided to
us in a superb amicus brief filed by attorney Richard M.
Goehler on behalf of a bevy of student press associations,
only 1 percent of those enrolled in American colleges or
universities are under the age of 18, and 55 percent are
22 years of age or older. Treating these students like 15-
year-old high school students and restricting their First
Amendment rights by an unwise extension of Hazelwood
would be an extreme step for us to take absent more
direction from the Supreme Court.
The Supreme Court’s restrictive First Amendment
standard in Hazelwood sprang from its premise that the
special circumstances of a secondary school environment
permit school authorities to exercise greater control over
expression by students than the First Amendment would
No. 01-4155 7
otherwise permit. However, the judicial deference the
Supreme Court found necessary in the high school set-
ting—and in the factual context of Hazelwood—is inap-
propriate for a university setting. This difference was
acknowledged by the Court when it explicitly reserved the
question of whether the same level of deference it expressed
would be “appropriate with respect to school-sponsored
expressive activities at the college and university level.”
Hazelwood, at 273 n.7.
The Supreme Court has recognized that where the “vital”
principles of the First Amendment are at stake, “[t]he first
danger to liberty lies in granting the State the power to
examine publications to determine whether or not they
are based on some ultimate idea and, if so, for the State
to classify them. The second, and corollary, danger is to
speech from the chilling of individual thought and expres-
sion.” Rosenberger v. Rectors and Visitors of the Univ. of
Va., 515 U.S. 819, 835 (1995). These dangers are especial-
ly threatening in the university setting, where the crea-
tive power of student intellectual life remains “a vital
measure of a school’s influence and attainment.” Id. at 836.
While Hazelwood teaches that younger students in a
high school setting must endure First Amendment re-
strictions, we see nothing in that case that should be
interpreted to change the general view favoring broad
First Amendment rights for students at the university
level. And so we conclude that Dean Carter does not enjoy
qualified immunity in this suit.
Unrelated, at least directly, to the qualified immunity
issue are a few minor matters we can quickly dispatch.
First, Dean Carter says the plaintiffs should have submit-
ted copies of potential newspaper articles to the district
court because the court must know what “speech” falls
within the First Amendment. She contends that not do-
ing so is a “complete failure of proof” entitling her to sum-
mary judgment. While copies of the articles that might
have been published in future issues of the Innovator
8 No. 01-4155
are not in the record, there is a copy of the October 31,
2000, paper. Dean Carter makes no argument that this
issue of the paper lacked constitutional protection, and
there is nothing in the record indicating that future
copies of the Innovator would have differed.
Dean Carter also contends that no constitutional viola-
tion occurred because she did not actually restrict pub-
lication of the paper. She says that the plaintiffs themselves
decided not to send further issues of the Innovator to
Regional Publishing and that they did not publish an
issue in December even after an administrator gave them
permission to do so. Affidavits, however, show that Re-
gional Publishing was unlikely to print another copy of
the paper after Dean Carter’s phone call because of her
reference to the university’s control of the Innovator’s
purse strings. Furthermore, interpreting the evidence in the
light most favorable to the plaintiffs, there would have
been no point in publishing a December issue of the Inno-
vator after the staff received permission to do so because
students were already out of town on winter break. Dean
Carter’s call, viewed in the light most favorable to the
students, caused both Richards’ apprehension in publish-
ing another paper and the delay that made publishing
a second one futile.
For these reasons, we AFFIRM the order of the district
court denying Dean Carter’s summary judgment motion
on qualified immunity grounds, and we return the case
to that court for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-03