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Legal Guide for the Private School Press
© 2002 Student Press Law Center
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Do students at a private high school or college have to check their free
speech rights at the campus gate when they walk to school each
morning?
The answer to that question is a resounding maybe. Because the
First Amendment says, “Congress shall make no law ,” courts hold
that it prevents only the government and those acting on its behalf from denying
a person their free speech rights. Private institutions, therefore, are not
generally subject to the limitations imposed by the First
Amendment.[1]
Unfortunately,
this has allowed some private campus officials to routinely censor student media
stories they don’t like and punish those students who refuse to comply
with their censorship demands.
Contrary to popular belief, however, all
is not lost on the private school campus. The First Amendment is not the only
weapon available to defenders of free expression. There are valid legal
theories, along with strong policy arguments, that may help the private school
journalist confronted with threats and acts of censorship.
I. Policy
Arguments
The most powerful arguments against administrative
censorship at private schools often have little to do with the law. The
following suggested policy arguments against censorship are ones that private
school student journalists can present to school officials to help convince them
that censorship is – above all else – simply a bad practice.
First, even though a court may not be able to prevent censorship at a
private school, this alone does not make it right. Just because you can
censor does not mean that you should. This is, of course, the nation
where Thomas Jefferson said, “[w]ere it up to me to decide whether we
should have a government without newspapers or newspapers without a government,
I should not hesitate a moment to prefer the latter!” One can argue that
any official censorship of a newspaper, whether by a private school
administrator or a state or local government official, is patently un-American.
If a private school believes that its ultimate function is to turn students into
valuable citizens, a basic understanding of and experience with the workings of
a free society is a requirement. A student journalist who has experienced
censorship and prior restraint throughout his academic career will approach the
realities of journalism and its role in American society with a warped
perspective. Indeed, free expression and a flourishing marketplace of ideas is,
after all, what separates America from the totalitarian nations we
condemn.
Second, a private school that actively seeks to stifle the
expression of its students is not only violating fundamental democratic
concepts, it is also retarding one of the basic necessities of the learning
process — the unfettered free flow of ideas. Minds need new ideas and
means of expression to grow. When censored, the students of a private school
receive a lesser education than their counterparts in public schools.
Third, because many private schools are affiliated with a religious
organization, a special affinity for the First Amendment should create a common
bond with journalists and their free expression rights. If it were not for the
First Amendment and its protections for the free exercise of religion, many of
the schools themselves might not exist. It would seem incumbent upon religious
schools to advocate the guarantees that protect journalists as much as
themselves.
Even if this kind of reasoning does not work, there remains
the possibility that public and political pressure may lessen an
administrator’s desire to censor students. Students, faculty and alumni
publicly expressing their grievances to the local press sometimes get results
when internal discussion does not. Appeals by well-placed outsiders (especially
those who happen to be alumni of the school) can have a powerful effect on
administrators who might be able to ignore a student’s philosophical
arguments that censorship is an unsound educational practice.
School
administrators who are quick to censor may hesitate if they realize that their
actions may lead to bad publicity for the school. Administrators have been known
to have a change of heart when it appears that their decision to censor student
expression might have a negative impact on next year’s enrollment figures
or fund-raising totals. In addition, demonstrating to school officials that you
are willing to fight for free expression rights may cause administrators to
reconsider their position.
Ultimately, however, there is the possibility
of going to court, seeking legal redress for wrongs done, even when those wrongs
are committed by a private institution. While in some cases the chances for
relief may be slim, there are at least four legal theories that could, given the
right circumstances, gain a favorable hearing from a court in a case involving
censorship of a private school’s media.
II. Contract Rights/Law
of Associations
In the right situation, the legal remedy most likely
to protect the student journalist in a private school is a claim based on a
breach of the guidelines or rules established by the private school
itself.
Those catalogs, student handbooks and recruiting brochures
distributed by schools usually contain pages of policies, regulations and rules.
Many courts have ruled that distribution of these documents and the offer of
admission to the school, both of which include explicit and implicit promises,
and an acceptance and payment of tuition by a student creates a contractual
relationship.[2] Other courts have
found that the law of associations, rather than strict contract law, is more
appropriate to the student/private school
relationship.[3] The law of
associations has been applied to private schools, churches, civic groups and
other private organizations to address situations where contract rights,
property rights and other personal rights merge. While the legal theories vary
slightly, the general notion is the same: where a private school voluntarily
establishes a set of guidelines or rules, it must adhere to them. Otherwise,
there exists a breach of a legally enforceable promise for which a student may
obtain legal relief.
For example, a private university is not legally
required to establish a procedure that provides a student the opportunity to
respond when the school wants to take action against him or her, such as a
hearing to answer a charge that could result in a student’s expulsion.
With no government rules to guide it, a private school can generally expel a
student for no reason. However, if that school has a written policy outlining
the procedures to be followed in a student disciplinary action, those procedures
must be followed.[4] If not, there is
a breach of contract or associational promise and the student may seek damages
or reinstatement. This “due process” does not need to meet the
standards of the federal Constitution, but it does need to meet standards
specified in the student handbook, catalog or other policy
statement.
While this legal theory has come up mainly in the context of
students being expelled or denied diplomas, there is no reason this rationale
should not be extended to cover other promises made by a college or university.
Indeed, in a case involving the Dartmouth Review, an independent student
publication at Dartmouth College, a New Hampshire state court judge, in
addressing promises made by the school in the Dartmouth Student Handbook,
ruled that a “private college is equally obliged not to violate any of the
contractual rights of its students
.”[5]
While the judge
limited his ruling to a section of the Handbook that dealt with student
disciplinary proceedings, the language above indicated that other campus
promises made in the Handbook had to be kept as well. Importantly, prior
to the ruling, lawyers for the students had submitted arguments to the judge
that pointed out sections in the Handbook that guaranteed Dartmouth
students the right to express themselves
freely.[6]
In some cases,
student journalists may even find themselves the beneficiary of the contractual
rights extended to their advisers. A faculty member’s contract with his or
her school frequently contains an academic freedom provision. While the specific
protections vary, academic freedom commonly protects the right of a professor to
teach his students as he or she deems appropriate. For a faculty member whose
contractual duties include advising student media this arguably might include
the right to teach his or her students to publish free from administrative
control and editorial interference.
If a private school clearly promises
or states that its students have the right to openly express their viewpoints or
that student publications will be free of administrative interference with final
editorial control left to the students, any action contrary to that policy may
be a breach of a promise for which a court could presumably give relief.
Students should check to see if such a policy exists at their school, and if
not, encourage the adoption of one.
III. California’s
“Leonard Law”: Unique Relief for California
Students
Students at California schools have a unique weapon in the
fight against censorship in the form of a short, but remarkable state law.
Adopted in 1992 with near unanimous bipartisan support, the “Leonard
Law,”[7] named after its primary
sponsor, state Sen. Bill Leonard, R-San Bernardino, reads in part: “It is
the intent of the Legislature that a student shall have the same right to
exercise his or her right to free speech on campus as he or she enjoys when off
campus.” The “Leonard Law” expressly forbids administrators
from taking disciplinary action against a student for engaging in speech that,
outside of campus, would be protected by the First Amendment. What makes the law
so unique – in addition to its exceptionally broad and protective language
of student free speech rights – is that it applies to students at both
public and private high schools and colleges. Widely regarded as a “bold
stroke” for student free speech rights, the law goes where no other
federal or state law has gone before, essentially converting the private school
into a public forum. In addition, the law prohibits “prior restraint of
student speech” at private universities, and allows all students the right
to file a civil lawsuit against school officials who violate its provisions.
Although the law does not allow a student to sue for money damages, the court
can order the school to pay a student’s attorneys’ fees if the
student wins. There are, however, exceptions in the law that allow private
religious schools to suppress student speech where it is shown that such speech
“would not be consistent with the religious tenets of the
organization.” “Hate speech” is also punishable – though
the term is very narrowly defined. In addition, school officials are permitted
to regulate free expression using content-neutral “reasonable time, place
and manner regulations.”
In the decade since its passage, the
“Leonard Law” has had a significant effect on student speech at
private schools. In the first case to actually go to court under the law, a
group of Stanford University students successfully challenged the school's
speech code, which, among other things, prohibited speech “intended to
insult or stigmatize an individual or group of individuals on the basis of their
sex, race, color, handicap, religion, sexual orientation or national or ethnic
origin.” The students, lead by Stanford Law School graduate Robert Corry,
claimed that such vague language had a substantial “chilling effect”
on meaningful, honest communication. In addition, the Santa Clara County
Superior Court held that Stanford’s speech code was both facially
overbroad and underinclusive under the First Amendment, and therefore invalid
under the “Leonard
Law.”[8]
The importance
of the “Leonard Law” appears to be in its deterrent effect on school
censorship. In effect, administrators in California now wishing to suppress
student speech must weigh whether this suppression is important enough to them
to withstand litigation allowed under the “Leonard Law.” Indeed,
several students have avoided threatened punishment for otherwise protected
speech once it was made known that the students were prepared to pursue lawsuits
under the “Leonard
Law.”[9]
Noted
constitutional law professor Julian N. Eule once remarked, “Suffice it to
say that, were I representing a California school district, I would be less than
confident about advising my client that it could exercise editorial control over
the contents of a high school's
newspaper.”[10] All in all,
the “Leonard Law’s” transport of the First Amendment onto
private school property is a noteworthy step forward for protecting student free
expression rights on campus.
IV. Sense of Congress
Although
legislation similar to the “Leonard Law” has not caught on as of yet
in the rest of the country, the United States Congress has indicated its support
for free expression rights for students at both public and private colleges.
While an attempt to create a federal “Leonard Law” fell
short,[11] Congress adopted
revisions to the Higher Education Act in 1998 that included a “sense of
Congress” espousing non-binding guidelines for addressing student free
expression rights. The “sense of Congress” states that “no
student attending an institution of higher education on a full- or part-time
basis should, on the basis of participation in protected speech or protected
association,” be punished for engaging in conduct that would otherwise be
protected by the First and Fourteenth Amendments at a public
college.[12]
While this
legislation, sponsored by Rep. Robert Livingston, R-La., and Sen. Larry Craig,
R-Idaho, has been described as “a welcome step forward for press rights on
the private campus,”[13] a
“sense of Congress” is merely a reflection of Congress’ views
and recommendations, and should not be regarded as a binding law that imposes
penalties for noncompliance. However, students can use the words of Congress in
their attempt to persuade administrators why they should be more sensitive to
campus free speech concerns.
V. State Action
Regardless of
whether a contract or other legal relationship exists, a court may exercise its
jurisdiction and protect free expression rights if it is shown that the private
university is really taking what amounts to governmental action when it censors
the student press. This so-called “state action” doctrine comes in
three forms, each rare and difficult to demonstrate. The first is proof that the
private school and the state have developed an interdependent, symbiotic
relationship.[14] This is possible
when the school is heavily dependent on the state for its existence, relying on
infusions of public money, financing and other viable means of support. In
return, the state depends on the private school to perform a part of its
function.
Initially it might seem that practically all private schools
might fall into this category because of the massive amounts of money the state
and federal governments provide for the support of education and students.
However, this is not the case. In several instances, courts have ruled that
financial support is not enough.[15]
State action might also be found without this dependent relationship if
the private school is only doing what the government tells it to do. This is
called the “close nexus” test, where a citizen is being deprived of
his rights because a private institution is adhering to a government
regulation.[16] Under this rule, a
student journalist would receive First Amendment protection if a government
regulation was forcing the private school to exercise censorship or prior
restraint. Such a scenario is unlikely, however.
Finally, state action
may be found if the private institution is performing duties and functions that
traditionally have been done exclusively by the
government.[17] The key to this
legal doctrine is its exclusivity. Courts have found that a private entity is
performing a public function only when that function has been done exclusively
by the government in the past.[18]
An example might be police protection provided by a private campus security
force. Education, which has both a private as well as public history, would
probably not fit this standard.
VI. State Constitutions
In
some states the state constitution may provide a shield for defending free
expression. In 1980, the U.S. Supreme Court said that the states are free to
provide protection in their own constitutions beyond that of the federal
Constitution.[19] The Court said
that states may provide greater, even affirmative, protection for free speech on
private property provided the value of the property was not diminished and the
purposes for which it was used was not
disrupted.[20]
Unlike the
federal Constitution, which only prohibits governmental interference with free
speech, the constitutions of 44 states have language that affirmatively protects
free expression.[21] For example,
the Alaska State Constitution's free speech clause states: "Every person may
freely speak, write and publish on all subjects, being responsible for the abuse
of that right."[22] The Alaska
Supreme Court has said that the provision protects free speech "in a more
explicit and direct manner" than does the First
Amendment.[23]
A few states
have construed their state constitutions to forbid the abridging of free press
protections by private parties. Of these states, the constitutions of New
Jersey, Massachusetts and Pennsylvania have been successfully used in the courts
to protect the free expression rights of students on private
campuses.[24] However, to date there
has been no ruling on whether a state constitution, with an affirmative right of
free speech and press, protects the student media at private schools from
censorship.
For a court to make such a ruling, it would first have to
hold that the private school had created a forum for student expression. Such a
forum exists when the students are given editorial control of their publication.
This is usually demonstrated through the appointment of students to editorial
positions and the publication of student news, editorials or letters to the
editor. Practically, almost every college student newspaper could be considered
a forum for student expression.
Winning free speech protections for
student journalists at private schools with this legal theory poses some risks
for journalism as a whole. Forcing a private institution to allow use of its
newspaper for public expression comes close to the state forcing publication of
something it wants in a privately owned newspaper, something the Supreme Court
has said is generally not permitted under the First
Amendment.[25] The Court has also
ruled that the government cannot force a private citizen to affirm a belief he
does not share.[26] With these
protections, the question arises as to whether the state, through its
constitution and courts, can force a private school to allow a student newspaper
to advocate ideas with which school officials disagree. Providing such a right
to student journalists requires a careful delineation between a private
school’s student newspaper where the school has willingly given editorial
control to its students and a private publishing company that clearly retains
ultimate control of its publications. Because of the legal differences between
these two situations, a distinction can easily be made.
VII.
Independence
Even in law, the best defense may be a good offense. And
rather than trying to formulate after-the-fact arguments as to why an
administrator’s act of censorship is illegal, many student journalists
have found it more effective to take away the means by which those
administrators can censor in the first place. To limit administrative control, a
publication can separate itself from the school by becoming a separate entity or
corporation.
For a number of reasons, complete independence, either
through formal incorporation or by other means, is practical for only a few
publications. An independent newspaper or magazine at a private school should
not expect any financial or material support from its school if it wants to
guarantee its freedom from censorship. Because of the costs involved, only a
small number of newspapers have found independence a realistic alternative.
However, the proliferation of personal computers and the Internet has made it
easier and less costly than in prior eras to create an independent forum for
student expression.
While independence may be an attractive alternative,
it does not overcome the ability of a private school to limit distribution of a
publication on its campus or to punish students for their off-campus expression.
Nevertheless, in the right situation, declaring independence from the school has
worked well for a number of student publications.
VIII.
Summary
Although official control of student journalists at many
private schools remains a legal and practical reality, students who find
themselves victims of censorship and prior restraint should not give in quietly.
Ideally, control of the press should be as repugnant to the school as it is to
the student journalist. But where school administrators cannot be convinced of
the reasons for a strong, viable and editorially independent campus press, some
private school students may have reasonable legal arguments available to them.
Whether there is state action, a contract or other enforceable promise, a state
constitution, a statute such as California’s “Leonard Law”
— or the power of persuasion — press freedom on private campuses can
realistically be fought for and won.
Can students be punished by
private school officials for off-campus speech?
The ability of the
private school to affect free expression does not always end at the schoolhouse
gate. Absent a school policy or state statute to the contrary, a private school
may have substantial leeway in punishing or even expelling a student for his or
her off-campus speech. For example, in 1999, Peter Ubriaco was expelled from
Albertus Magnus High School in Rockland County, New York, for hosting a personal
Web site which, among other things, encouraged visitors to his site to
“walk into the local mall and shout the word ‘penis’ at the
top of their lungs.” The school found the site to be “violent and
pornographic,” even though the Web site contained no threats or
pornographic images. Although the First Amendment likely would have provided
significant legal protection had Ubriaco been punished by public school
officials[27], his attempts to seek
legal redress were thrown out of federal court for one simple reason: he
attended a private school.[28] The
court ruled that because there was no state action involved, it lacked
jurisdiction to prevent private school officials from punishing Ubriaco for his
off-campus conduct.
Still, at least a handful of courts have refused to
allow private school officials to exercise unfettered authority over off-campus
student misconduct. In November 2002, a Minnesota state judge ordered a private
school to reinstate a high school student who was expelled after a school
official found him in possession of marijuana just off school
grounds.[29] That same month, a
judge in Philadelphia ordered a private all-boys school to re-enroll a student
expelled after he used a digital movie camera to secretly record a classmate in
an "intimate moment" with a former
girlfriend.[30] In both cases,
judges expressed some concern over the fairness of the schools'
actions.
While the cases above are unusual, they do make clear that
private school officials do not act in a vacuum. Punishing students for their
purely private, off-campus conduct — and particularly for speech that is
not unusually egregious or shocking — strikes many as unfair and
heavy-handed. Students that publish a generally responsible, if controversial,
off-campus student newspaper or Web site will usually find support — if
not in a court of law at least in the court of public opinion.
[1] Hudgens v. NLRB, 424
U.S. 507 (1976); but see discussion of “State Action,”
infra Section V.
[2] Ross
v. Creighton Univ., 957 F.2d 410 (7th Cir. 1992); Steinberg v. Chicago
Medical School, 371 N.E.2d 634 (Ill. 1977); Zumbrun v. U.S.C., 51
ALR3d 991 (Cal. App. 1972); Univ. of Texas Health Science Ctr. at Houston v.
Babb, 646 S.W.2d 502 (Tex. Ct. App. 1982); Stanoch v. Breck School,
No. CT 02-019852 (Dist. Ct. Hennepin County Nov. 21, 2002)(temporary restraining
order), see discussion at fn. 29, below; see also discussion of
Dartmouth Review case, below. However, courts have given
substantial deference to private universities in the interpretation of
the rules and regulations found in a student handbook. See Schaer v. Brandeis
Univ., 735 N.E.2d 373 (Mass.
2000).
[3] Clayton v. Princeton
Univ., 519 F. Supp. 802 (D.N.J. 1981); Tedeschi v. Wagner College,
404 N.E.2d 1302 (N.Y. Ct. App. 1980); A. v. C. College, 863 F. Supp. 156
(S.D.N.Y. 1994); Abrariao v. Hamline Univ. School of Law, 258 N.W.2d 108,
112 (Minn. 1977); Baltimore Univ. v. Colton, 57 A. 14 (Md.
1904).
[4] Jansen v. Emory
Univ., 440 F. Supp. 1060 (N.D.Ga. 1977); see also Clayton;
Tedeschi.
[5] Dartmouth
Review v. Dartmouth College, CIV No. 88-E-111 (N.H. Super. Ct. Grafton Div.,
Jan. 3, 1989).
[6]
Plaintiff’s Petition for Damages and Equitable Relief, Dartmouth Review
v. Dartmouth College, CIV No. 88-E-111.
[7] Cal. Educ. Code 48950 (West
2002) (high schools); Cal. Educ. Code 94367 (West 2002)
(colleges).
[8] Corry v.
Stanford Univ., No. 740309 (Cal. Super. Ct. Feb. 27,
1995).
[9] For example, fraternity
members at Occidental College avoided disciplinary action for publishing a lewd
poem in a private newsletter which was inadvertently made public. Linda Seebach,
Political Correctness in LA, NATIONAL REVIEW, July 19,
1993.
[10] Julian N. Eule,
as completed by Jonathan D. Varat, Transporting First Amendment Norms to the
Private Sector: With Every Wish There Comes a Curse, 45 U.C.L.A. L. REV.
1537 (1998).
[11] Congress made
attempts to protect the free speech rights of private college students through
the proposed Freedom of Speech and Association on Campus Act of 1997. Sponsored
by Rep. Robert Livingston, R-La., and inspired by the banishment and punishment
of fraternity and sorority members from several private universities, the bill
(H.R. 980), which died in committee, would have denied federal funding to any
institution found that violated the free speech and association rights of its
students.
[12] 20 U.S.C. 1011(a)
(2002).
[13] Brian J. Steffen,
Freedom of the Private-University Student Press: A Constitutional
Proposal 35 (2000).
[14]
Burton v. Wilmington Parking Authority, 365 U.S. 715
(1961).
[15] Rendell-Baker v.
Kohn, 457 U.S. 830 (1982); Blackburn v. Fisk Univ., 443 F.2d 121, 123
(6th Cir. 1971). Indeed, only in Pennsylvania has this interdependent
relationship been recognized. There the state not only provided money to the
schools in question, it also had designated representatives on the boards of
trustees. In addition, state statutes existed creating and defining the role the
role the private schools were to play in the state university system. Even the
names of the schools had been changed to demonstrate this role. With statutes to
support them, the courts ruled that the schools were, in effect, part of the
public university system, making them subject to restrictions on government
action. Issacs v. Temple Univ., 385 F. Supp. 473 (E.D.Pa. 1974);
Braden v. Univ. of Pittsburgh, 552 F.2d 948 (3rd Cir.
1977).
[16] Jackson v.
Metropolitan Edison Co., 419 U.S. 345
(1974).
[17] Marsh v.
Alabama, 326 U.S. 501 (1946) (Court ruled that where a company-owned town
was performing all the functions traditionally done by a local government it had
to abide by the same federal guidelines as a
government.)
[18] Flagg Bros.
v. Brooks, 436 U.S. 149
(1978).
[19] PruneYard
Shopping Center v. Robins, 447 U.S. 74 (1980).
[20]
Id.
[21] For example,
state courts in Alaska, California, Colorado, Indiana, Massachusetts, New
Jersey, Oregon, Pennsylvania, Washington and Wyoming have indicated that the
affirmative language in their constitutional free speech provisions provides
broader protection than the federal Constitution’s First Amendment. Other
state courts, however, have said their state constitutional provisions offer no
free speech protection greater than the federal Constitution. Some of these
states include Arizona, Connecticut, Georgia, Florida, Hawaii, Iowa, Maryland,
Michigan, Minnesota, New Hampshire, New York, North Carolina, Ohio, South
Carolina, South Dakota, Texas and Wisconsin.
[22] Alaska Const. Art I, sec. 5
(2002).
[23] Messerli v.
State, 626 P.2d 81, 83 (Alaska
1980).
[24] Abramowitz v.
Boston Univ., CIV No. 82680 (Mass. Sup. Ct. Suffolk Div., Dec. 2, 1986);
Pennsylvania v. Tate, 432 A.2d 1382 (Pa. 1981); New Jersey v. Schmid,
423 A.2d 615 (N.J. 1980).
[25]
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
(1974).
[26] Wooley v.
Maynard, 430 U.S. 705
(1977).
[27] See, The other
side of the schoolhouse gate, Student Press Law Center,
http://www.splc.org/legalresearch.asp?id=11
(last viewed December 6, 2002).
[28] Ubriaco v. Albertus
Magnus High School, No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21,
2000).
[29] Stanoch v. Breck
School, No. CT 02-019852 (Dist. Ct. Hennepin County Nov. 21, 2002)(temporary
restraining order); Draper, N., Breck must readmit expelled teen,
Minneapolis Star Tribune, Nov. 27, 2002, at 1A.
[30]31 Woodall, M., Judge
says student can stay in school, The Philadelphia Inquirer, Nov. 20, 2002,
at B1.
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