June 21, 2005

Censoring students? IHE makes mistake

Today, there is a story at Inside Higher Education> reporting (or misreporting) the majority opinion in Hosty v. Carter. In the Inside Higher Ed story, Doug Lederman said that the opinion applied to colleges the 1988 Hazelwood decision that allows high school administrators to censor student newspapers:

The full U.S. Court of Appeals for the Seventh Circuit ruled on Monday that a controversial 1988 Supreme Court decision restricting the free speech rights of high school newspapers applies to student newspapers subsidized by public colleges and universities, too.

However, Lederman misreads the majority opinion about a case from Governors State University. The Dean of Student Affairs and Services, Patricia Carter, ordered the paper's printer to stop printing any newspaper that didn't have her explicit approval after a series of articles criticizing the administration for firing the newspaper's faculty advisor. The students sued for damages from the college's officials, asking the courts to assume that they did not have immunity. The district court and a three-judge panel of the Seventh Circuit had decided in favor of the students in the case of Carter (but not the other officials), and the whole court agreed to hear an appeal from the university.

Yes, the majority opinion overturned the district court and the 3-judge opinion before the en banc hearing, but it wasn't on the basis of whether Hazelwood applied in toto to colleges. In Part II of the majority opinion, the judges came down on the side of the students in making a preliminary, favoring-plaintiffs judgment of whether a student newspaper is a qualified public forum (i.e., whether censorship is forbidden). It was only in Part III that the majority overturned the earlier opinions, which had to do with whether the college official had immunity. In that part, the majority opinion ruled that the inapplicability of Hazelwood was not clear, and that a competent official could have decided that it might apply. But the majority never said that public officials automatically have a right to censor college publications; the ruling hinges entirely on the second part of a two-prong test on immunity of public officials accused of violating constitutional rights.

I think it's pretty clear that a student newspaper is a qualified public forum, at the very least, but let's not be hasty in criticizing this opinion.

Posted by sdorn at June 21, 2005 09:12 AM | | TrackBack