As federal courts stripped away legal protection for government employees to complain about their working conditions without fear of retaliation, one bright spot remained: Students aren’t employees, and when they speak at school, they retain constitutional protection if they blow the whistle on campus wrongdoing.
This is no longer reliably true, but a federal appeals court will soon have a chance to set the law back on course.
Milward v. Shaheen
Hazelwood
The ruling echoes a federal court’s decision in the case of an Alabama nursing student whose complaints about the fairness of her college’s grading and disciplinary practices were, likewise, categorized as unprotected speech because of Hazelwood.
In that 2010 case, Heenan v. Rhodes, the federal court garbled Hazelwood‘s two-step analysis, leaping ahead to the last question — was the punishment justified by a legitimate pedagogical purpose? — without first asking whether the student was using a forum provided by the school in such a way as to cause confusion about sponsorship of the message.
It’s essential for the Eleventh Circuit to correct this erroneous reasoning and make clear that speech does not become part of a college’s curriculum just because it is about the curriculum.