Hazelwood goes to college

When 50-something graduate student Judith Heenan enrolled atAuburn University School of Nursing, she could never have envisioned that hercourse of study would culminate in a disciplinary removal from the school,followed by protracted litigation in federal court – or that her fate would bedecided on the basis of the same legal standard that would apply to anadolescent girl. But that is just what occurred.

Judge Myron Thompson of the Middle District of Alabamaconcluded that, because inculcating civility is within the curricular missionof the Nursing School, and because Ms. Heenan had behaved in an “uncooperative”and “rude” manner, her protestations against the disciplinary system of theschool were not protected speech under the First Amendment.[1]Accordingly, the judge ruled, Auburn did not violate Heenan’s constitutionalrights in expelling her after a series of disciplinary “strikes.”

In reaching this legal conclusion, Judge Thompson took aposition that is becoming increasingly common at the federal district courtlevel in recent years: that the Supreme Court’s 1988 ruling in HazelwoodSchool District v. Kuhlmeier[2] extends beyond primary andsecondary school classrooms to reach onto university campuses, in ways thathave allowed colleges to both censor and penalize speech at the undergraduateand even post-graduate levels.

Guidance from the Supreme Court

Almost twenty-five years ago, the Supreme Court decided thelandmark Hazelwood case. In that case, three formerstudents accused Hazelwood East High School in Missouri of violating theirFirst Amendment rights when the school deleted two pages of articles from anewspaper that the students published as part of a journalism course. TheSupreme Court found that the school had acted within constitutional bounds. TheCourt said that, because of the “curricular” context of the speech, the schooldistrict was exercising reasonable educational judgment. As a policy matter,the Court wanted schools to have the ability to “disassociate” themselves fromdisagreeable speech that would “bear the imprimatur of the school.”[3]In other words, the school’s interest in controlling the content of the paperwas heightened by the fact that community members may have attributedviewpoints expressed in the paper to the school itself.

The generalpronouncement of law that undergirded the decision – and to this day serves asthe starting point in the analysis of many student speech claims – is that“educators” may regulate school-sponsored [i.e. curricular] speech “so long astheir actions are reasonably related to legitimate pedagogical concerns.”[4]In attempting to settle the law, the Court inadvertently opened a Pandora’s boxof other questions, including which activities “bear the imprimatur” of theschool, which speech is “school-sponsored” or “curricular,” and what are“legitimate pedagogical concerns?”

Despite the murkiness, there is still a certain subset ofspeech that is clearly subject to Hazelwood. Theprototypical case of curricular speech is classroom speech, such as an oralpresentation, written assignment or class discussion. Grading such speech, even grading it harshly,is without a doubt a regulation in service of “legitimate pedagogical concerns.”

“School-sponsored” speech is more nebulous. Speechdistributed by official student organizations (e.g., the newspaper, yearbookclub, student government); speech at school events (e.g. school performances,assemblies, commencement); and speech using school-provided modes ofcommunication (e.g., bulletin boards, school-issued email, those ubiquitousmarquees outside high schools that declare “Go [MASCOTS]!!!”) all might – dependingon the circumstances – qualify as “school-sponsored” speech. As one can see, just attempting to define thebasics of the Hazelwood standard is a thorny endeavor.

The Hazelwood Court wasequally unclear whether the new legal standard it was creating should apply inthe post-secondary context. In an oft-cited footnote, Justice White, speakingfor the majority, remarked that the Court “need not now decide whether the samedegree of deference is appropriate with respect to school-sponsored expressive activitiesat the college and university level.”[5]

Since that time, the few references that the Supreme Courthas made toward Hazelwood’s applicability at the college levelhave been as opaque as Justice White’s footnote. In Board of Regentsof Univ. of Wis. System v. Southworth,[6] a case involvingthe disbursement of student funds to campus clubs, Justice’s Souter’sconcurrence, accompanied by two other justices, dropped a notable footnote ofits own.[7] In it he cited Hazelwood as an instancein which the right of institutions to limit the expressive freedom of studentshas been confined to high schools, and then generalized that high school“students and their schools’ relation to them are different and at leastarguably distinguishable from their counterparts in college education.”[8]In 2010, ten years after deciding Southworth, the SupremeCourt again cited Hazelwood in a case involving thepost-secondary context. In Christian Legal Society v. Martinez,[9]which determined that the state-run Hastings College of Law could requireschool-funded student activity groups to “accept-all-comers” and notdiscriminate, Justice Ginsburg offered a cursory citation to the Hazelwoodcase, in support of the proposition that courts should “resist substitutingtheir own notions of sound educational policy for those of the schoolauthorities which they review.”[10] Neither Souter’s nor Ginsburg’scitations are sufficiently definitive so as to clarify whether the rule of Hazelwoodapplies to colleges.

There are powerful arguments that Hazelwoodis simply the wrong standard in the adult world of a college campus. Thesearguments were well-captured in the Sixth Circuit’s 2001 ruling in Kincaidv. Gibson,[11] which found a college’s censorship of astudent-produced yearbook (The Thorobred) to beunlawful. In declining to apply Hazelwood in the collegesetting, the court said that “we find it relevant that the editors of TheThorobred and its readers are likely to be young adults” – notingthat one of the editors was 37 years old – and concluded: “[T]here can be nojustification for suppressing the yearbook on the grounds that it might be‘unsuitable for immature audiences.’”[12]

Trickle down

In the absence of clear direction from the Supreme Court,the various federal courts of appeal are left to elucidate the scope of the Hazelwoodrule. Predictably enough, there is a schism among various courts on thisquestion, a split that emerged almost immediately following Hazelwood.The polar positions were staked out by the First and Eleventh Circuits in 1989.The First Circuit, based in Boston, concluded that Hazelwood“is not applicable to college newspapers,”[13] while the EleventhCircuit, based in Atlanta, conversely concluded that the Hazelwoodrationale permitted the University of Alabama to regulate student governmentcandidates’ speech based on a mere justification that the regulation wasreasonable, even if the speech was not shown to be unlawful or disruptive inany way.[14]

Several other circuits have since trickled into one camp orthe other. The Sixth Circuit decided, in alignment with the First Circuit, thatHazelwoodhas no application in the context of a college publication.[15] TheSeventh and Tenth Circuits decided, in alignment with the Eleventh Circuit,that Hazelwoodgoverns the regulation of speech at post-secondary educational institutions.[16]

The Seventh Circuit’s ruling, Hosty v. Carter,[17]is the rare post-Hazelwood case set in the context of a studentnewspaper. In that case, the appeals court dismissed the censorship claims ofcollege students at Illinois’ Governors State University on the grounds thatthe level of First Amendment protection owed to the student newspaper, underthe Hazelwoodstandard, was so unclear that reasonable administrators would not have knownwhether they were violating the students’ constitutional rights.

Initially the Ninth Circuit appeared to adopt Hazelwoodregulatory authority at the college level,[18] but theCalifornia-based circuit has, in a more recent case, disowned that stance.[19]The New York-based Second Circuit has cited favorably to Justice Souter’sfootnote in Southworth, which suggests that the circuit’sjudges are wary of applying Hazelwood to the collegelevel.[20]

The divide among the circuits continues to the present. In2010, both the Third and Fifth Circuits heard constitutional challenges tostudent codes of conduct (at the University of the Virgin Islands and LouisianaState University, respectively). In the UVI case, the speech code banned“offensive” and “unauthorized” speech. In the LSU case, the code banned“extreme, outrageous or persistent” communications that are reasonably likelyto “harass, intimidate, harm or humiliate.” There was a striking disparity innot only the outcome of the cases, but in the manner in which the two courtsapproached the question. The Fifth Circuit upheld the LSU code, perfunctorilyquoting Hazelwood to buttress the argument that “aschool need not tolerate student speech that is inconsistent with its basiceducational mission.”[21] The Third Circuit struck down sections ofthe UVI code, meticulously considering the significant differences between highschool life and university life: the maturity of the students; the educationalmissions of the institutions; the administrators’ roles; and “the fact thatmany university students reside on campus and are thus subject to universityrules at almost all times.”[22]

Trickle down down

With almost every circuit court of appeals having hadoccasion to weigh in on the question, one might think that the job of federaltrial courts, the district courts, would be rather rudimentary: simply adhereto the case law of the particular circuit in which the district court islocated. In reality, however, there has been a recent trend in district courtsaround the country of adopting expansively unprecedented applications of Hazelwoodat the university level. Although, as noted in the previous section, severalcircuits have employed the Hazelwood test at thecollege level, including the Fifth Circuit’s cursory citation to Hazelwoodlast year, no appeals-level court has expressly applied Hazelwoodto college student speech that is independently generated by the students (thatis, not part of a class assignment) and is not school-sponsored or funded.Nevertheless, over the past few years, several district court opinions haveused Hazelwood’sprecedent in just this type of situation.

In the recent Alabama case, Judith Heenan argued that theopposition that she voiced against the nursing school’s disciplinary pointsystem was met with further retaliation, in the form of disciplinary “strikes”against her that added up to grounds for expulsion. The district courtdetermined that her speech about the disciplinary system was itself curricular– even though it was speech in opposition to school policies, clearly not atthe direction of the school or attributable to the school.

In response to Heenan’s request for reconsideration, JudgeThompson yielded slightly from his initial position to a softer oneacknowledging that some of her out-of-class speech was not curricular and thusnot subject to regulation under Hazelwood. Still, thejudge maintained that “grievances that were made to, or in the presence of, herinstructors and supervisors and were related to her training” are within therubric of Hazelwood curricular speech.[23]

The reasoning of Heenan v. Rhodes is not anisolated occurrence. Rather, at least two other district courts have adoptedsimilarly aggressive expansions of Hazelwood in recent cases.The Northern District of California court did so in Head v. Board ofTrustees of The California State University,[24] in which astudent at a teacher’s college alleged that he was coerced to affirm politicalviews with which he personally disagreed. Stephen Head argued that he shouldnot be forced to profess what he considered to be a thinly veiled Democratic platformof race-conscious multiculturalism. His professor had gone so far as tocampaign against a state ballot proposition during one class. Nonetheless, infinding in favor of the university, the Northern District of California courtconcluded that “foster[ing] educators who can function effectively andsensitively in the multicultural, multilingual . . . environment of today’ssecondary schools” is a “legitimate pedagogical purpose” in furtherance of theuniversity’s curricular mission.

The court’s reasoning raises the related question of how fara school can extend its curricular reach over the beliefs, and not merely theactions, of any student. Can any professional school justify compelling itsstudents to pledge allegiance to a certain political affiliation, as long asthat school offers a blanket assertion that Republicans, Democrats or any otherpolitical ilk are better suited to succeed as a professional in that particularcareer? Can a psychology class at a state university administer a multiple-choiceexam in which “the right answer” is that blacks are genetically inferior towhites and women are genetically inferior to men? This is the peril ofaccepting uncritically that the school gets to decide what are the “right”ideas and attitudes a successful graduate should hold, and that diverging fromthe school’s notion of “right thinking” is constitutionally unprotected.

The federal district court for the Southern District ofGeorgia confronted a similar situation in Keeton v. Anderson-Wiley,[25]involving a dispute between Augusta State University and a student seeking tohave the court remove her from a school-instituted probationary plan. Thestudent, Jennifer Keeton, who was studying to be a counselor, repeatedly voicedher religious-based views on the immorality of homosexual conduct to professorsand classmates in her academic program, including relaying an interest in“conversion therapy” to change the behavior of homosexual and bisexual people.The school placed Ms. Keeton on a mandatory “remediation plan” under a schoolpolicy that read “[w]hen a student’s progress is not satisfactory oninterpersonal or professional criteria unrelated to academic performance, sheor he may be placed on remediation status.” Ms. Keeton refused the plan andbrought a lawsuit to prevent the school from expelling her, on grounds thatexpulsion would violate her right to freedom of speech.

U.S. District Judge J. Randal Hall disagreed, however, thatcompelled participation in a remediation plan would violate her First Amendmentrights. Rather, he concluded that Augusta State was within its right to imposethe guidelines, as part of a legitimate professional curriculum. From thisperspective, Ms. Keeton’s avowed anti-homosexual sentiments were in essencecurricular speech, because they violated principles of professional ethicalconduct that were embedded in ASU’s curriculum.

The court purported to be following the case of Wardv. Wilbanks,[26] decided only a month earlier by a Michiganfederal court. In Ward, another guidance counselor student, alsofiercely opposed to homosexuality, refused during a practicum course to counsela homosexual student for depression. When she was ultimately dismissed from theprogram, the counseling student sued the school on grounds that her dismissalviolated her First Amendment free speech and exercise of religion. Invoking Hazelwood,the Michigan court decided that there was no constitutional violation becauseEastern Michigan University’s dismissal of Ms. Ward was a reasonable regulationof her curricular speech – in this case, her refusal to counsel a patient. Itwas reasonable, the court ruled, for the school to import the AmericanCounseling Association’s ethical principle of non-discrimination in treatmentinto its curriculum.

Yet, the contrast between the two cases is stark. Ms. Wardwas placed on remediation for refusing to comply with a curricular requirement– not speech, but conduct (refusal to offer treatment). It is as if she did notturn in her final paper or complete her final exam, which everyone recognizesto be legitimate grounds for academic sanctions. She sought an exemption forher religious views, but as the court noted, there existed no system ofparticularized exemptions. Ms. Keeton was punished, on the other hand, for politicallyunpalatable speech alone. Not once did she refuse to comply with a generalcurricular requirement. Rather, the school removed her for the beliefs that sheexpressed, and in particular, her advocacy of radical conversion therapy. Thisdistinction makes the Keeton case a much morequestionable use of college disciplinary authority.

Unquestionably some cases present close calls, verging onthe speech/conduct line. For instance, Ms. Keeton might have (though she didnot in fact) said that she would refuse to treat those who engaged in what sheconsidered to be sexually immoral behavior. This proclamation would have beentantamount to a threat not to complete a valid curricular requirement at somepoint in the future. Instead, the most that Ms. Keeton said was that “it wouldbe hard to work with the population” of gay and lesbian students. This fallsshort of a refusal to perform a curricular task, and is much more akin to purespeech rather than speech mixed with conduct. Judge Hall, nevertheless, viewedthe curricular reach of the school more expansively.

The intriguing question is why has there been this recentstring of district court decisions broadly expanding the reach of Hazelwoodat the college level. Certainly, the dearth of Supreme Court guidance is onefactor. Another may be that the current climate is charged with heightenedsensitivities to anything regarded as stigmatizing others, especially based ongender, race or another personal characteristic. “Cyberbullying” has been thebuzzword of school administrators for the past few years, and although no courtopinion has advanced the position that Hazelwood permits theregulation of an individual student’s online speech, it is not absurd toanticipate schools pressuring the courts in that direction. Like the judgesabove, there may be other jurists who, sympathizing with the goals of theschools, view the administrator-friendly standard of Hazelwoodas an easy way out, a way to rule for the school at an early summary judgmentstage, without the ordeal of a full-blown trial. Eventually, though, Hazelwoodwill be contorted beyond recognition, at which time the Supreme Court will beforced to issue some much-needed clarification.

Adam Schulman is the Student Press Law Center’s legal fellow. He is a graduate of Georgetown University Law Center.


1 Heenan v. Rhodes,__F.Supp. 2d__, 2010 WL 5300929, *8-*10 (M.D. Ala. 2010).2 484 U.S. 260 (1988).3 Id. at 272.4 Id. at 273.5 Id. at 273 n.7.6 529 U.S. 217 (2000).7 Id. at 239 n.4.8 Id.9 130 S.Ct. 2971 (2010).10 Id. at 2988 (internalquotation marks omitted).11 236 F.3d 342 (6th Cir. 2001) (en banc).12 Id. at 352.13 Student Government Ass’n v. Bd. ofTr. of Univ. of Mass., 868 F.2d 473, 480 n.6 (1st Cir. 1989).14 Alabama Student Party v. StudentGovernment Ass’n, 867 F.2d 1344, 1347 (11th Cir. 1989).15 Kincaid v. Gibson, 236F.3d 342, 346 n.5 (6th Cir. 2001).16 Hosty v. Carter, 412 F.3d731 (7th Cir. 2005)(regarding censorship of a college paper); Axson-Flynnv. Johnson, 356 F.3d 1277 (10th Cir. 2004)(regarding an actingstudent’s refusal to say certain imprecations as part of her assignments).17 412 F.3d at 731.18 Brown v. Li, 308 F.3d 939(9th Cir. 2002) (regarding a graduate student’s appendix of a“disacknowledgments” section to his thesis).19 Flint v. Dennison, 488F.3d 816, 829 n.9 (9th Cir. 2007) (“we need not consider whether the principlesof Hazelwood… apply with full force in a university setting – a questionneither we [citing a concurrence/dissent in Brown v. Li], nor theSupreme Court, have definitively answered.”)20 Amidon v. Student Ass’n of StateUniv. of New York, 508 F.3d 94, 104 (2nd Cir. 2007).21 Esfeller v. O’Keefe, No.09-30611 (5th Cir. Aug. 3. 2010). Ultimately, the court upheld the code on thecardinal basis of Tinker v. Des Moines Independent School Dist.,393 U.S. 503 (1969).22 McCauley v. Univ. of the VirginIslands, 618 F.3d 232, 243 (3rd Cir. 2010).23 Heenan v. Rhodes, No.2:09cv75-MHT (WO) (M.D. Ala. Jan. 26, 2011).24 No. C 05-05328 WHA (N.D. Cal. Aug. 14, 2006), available here.25 No. CV 110-099 (S.D. Ga. Aug. 20, 2010).26 No. 2:09-cv-11237, 2010 WL 3026428 (E.D. Mich. July 26,2010).