Sixth Circuit extends Hazelwood to colleges, universities

MICHIGAN — Afederal appeals court on Friday extended the censorship-friendly Hazelwood student expression standard topublic colleges and universities, while allowing a former counseling student’sFirst Amendment lawsuit to go forward.

“The Hazelwoodtest, it is true, arose in the context of speech by high school students, notspeech by college or graduate students,” Judge Jeffrey Sutton wrote for the 6thU.S. Circuit Court of Appeals. “But for the same reason this test works forstudents who have not yet entered high school…, it works for students who havegraduated from high school. The key word is student.”

The unanimous ruling from a three-judge panel comes in thecase of Ward v. Polite.

Julea Ward, a graduate student studying to be a counselor,sued after she was expelled from the counseling program at Eastern MichiganUniversity when she refused to counsel a gay client as part of a practicumcourse. She said her religious beliefs prevented her from affirming theclient’s sexuality; the school argued she was acting unethically.

By attempting to force Ward into affirming homosexualbehavior despite her religious beliefs, her attorneys claimed, the schoolviolated her First Amendment rights.

The appellate court ordered that her case proceed to trial,where a jury will decide whether EMU impermissibly punished Ward for herreligious expression. The opinion, however, also includes an analysis of theFirst Amendment rights of students in curricular settings. According to theopinion, the Supreme Court’s Hazelwoodstandard governs such speech.

Hazelwood allowsschools to control “school-sponsored” student speech based on “legitimatepedagogical concerns.”

Adam Goldstein, Student Press Law Center attorney advocate, saidextending Hazelwood to colleges isextremely dangerous.

“If they treat this as the law of the circuit,” Goldsteinsaid, “it turns being a student into an infirmity only graduation can cure.”

He said the maturity of high school students wasinstrumental in the Hazelwood decision.Applying it to colleges and graduate schools, he said, is to treat universitystudents the same as 14-year-olds.

The court did suggest that Hazelwood would apply less stringently to college students becauseof their maturity level.

“Although it may be reasonable for a principal to delete astory about teenage pregnancy from a high school newspaper, the same could not(likely) be said about a college newspaper,” Sutton wrote in the opinion.

The opinion appears in tension with a 2001 Sixth Circuit case,Kincaid v. Gibson, in which the courtrejected Kentucky State University’s confiscation of a college yearbook. Thefull court held that the yearbook was a public forum and that “Hazelwood has little application to thiscase.”

The court’s opinion Friday makes no mention of the Kincaid case.

Jeremy Tedesco of Alliance Defense Fund, one of Ward’sattorneys, said he’s unhappy with Hazelwood’sextension, even though the court’s decision ultimately went in favor of hisclient.

“Frankly, I’m not a huge fan of Hazelwood being extended to the public university context,” Tedescosaid. “I think it’s very clear, though, that student publications at thecollege level wouldn’t — at least shouldn’t — be governed by Hazelwood, and I don’t think thedecision says that at all.”

Mark Boonstra, one of EMU’s attorneys, directed questions touniversity spokesman Walter Kraft.

“This case is about what is in thebest interest of a person who is in need of counseling,” Kraft said in a pressrelease. “…(Ethical standards) require that counselors are not to allow theirpersonal values to intrude into their professional work.”

Kraft declined to comment further.

Ward filed suit in April 2009, and District Court JudgeCarem Steeh ruled in the university’s favor in July 2010. Friday’s decisionoverturns that ruling and returns the case to the district court for a jurytrial.

The Sixth Circuit includes Michigan, Ohio, Kentucky andTennessee. The legal precedent applies only to those states.

A similar ruling in Hostyv. Carter prompted a fierce response from student media advocates in the7th U.S. Circuit Court of Appeals. That court, covering Illinois, Indiana andWisconsin, found that Hazelwoodprovides the “starting point” in analyzing student press rights cases.

Illinois passed a state law in 2007 to nullify the impact ofHosty and declare all collegepublications in Illinois to be “public forums.” Oregon and California havesimilar protections.