Students lose — in a victory for a Michigan student. Court rewrites rules of free speech — in a case that’s not about free speech. If this makes sense, get help.

A federal appeals court’s ruling in favor of an Eastern Michigan University student who claims she was forced out of her chosen academic program, counseling, because of her faith-based opposition to homosexuality is being hailed in religious-freedom circles as a grand victory.

And technically, a “victory” it was. Though for the rights of all college students within the boundaries of the federal Sixth Circuit (Ohio, Michigan, Kentucky and Tennessee), it was a costly one.

In Ward v. Polite, a three-judge panel unanimously ruled that EMU graduate student Julea Ward can have a jury trial on her claim that she was forced out of the counseling program for asking not to be assigned to counsel gay students because of her religious opposition to homosexuality. Ward told her instructors that, if asked to meet with a gay student, she would instead refer the student to a different counselor who could be more supportive — an option her faculty supervisors rejected as a breach of counseling ethics.

Friday’s ruling — rejecting Eastern Michigan’s attempt to have the case dismissed — undeniably was a good outcome for Ward. But on their way to that outcome, the judges swerved unnecessarily, and sideswiped much of the First Amendment protection that college students thought they enjoyed.

At least in the Sixth Circuit, colleges that censor their students’ speech in a “curricular” setting no longer will have to surmount the formidable constitutional burden of Tinker v. Des Moines Independent Community School District, the Supreme Court’s 1969 landmark that outlawed school punishment for lawful and non-disruptive expression.

Instead, colleges now may regulate the content of their students’ class-related speech merely by pointing to “legitimate pedagogical concerns,” a greatly reduced burden that means students will rarely succeed in a First Amendment challenge. That is the legal standard set forth in Hazelwood School District v. Kuhlmeier (1988), in which the Supreme Court legitimized the removal of articles from a class-produced high school newspaper even though the speech was neither unlawful nor disruptive.

While Hazelwood is understood to provide increased censorship latitude in K-12 schools where administrators may need greater leeway to protect delicate listeners’ ears, Hazelwood has generally been viewed as a standard that’s as ill-suited for college campuses as training wheels and Twilight lunchboxes. That is not what Judge Jeffrey S. Sutton told us on Friday:

The key word [in Hazelwood] is student. Hazelwood respects the latitude educational institutions—at any level—must have to further legitimate curricular objectives. All educators must be able ‘to assure that participants learn whatever lessons the activity is designed to teach.’ … That the First Amendment protects speech in the public square does not mean it gives students the right to express themselves however, whenever and about whatever they wish on school assignments or exams.

With due respect, the court got it wrong. Not just wrong, but gratuitously wrong.

Why Hazelwood is the wrong legal standard for a college student’s objection to school curriculum

The Supreme Court cited three reasons for giving students only the barest of First Amendment rights in the setting of a class-produced high school newspaper. None of these three reasons applies in college, and most certainly not to a one-on-one conversation between a student and an instructor outside of class:

  • “[T]o assure that participants learn whatever lessons the activity is designed to teach.” Julea Ward’s speech did not interfere with anyone else’s ability to learn. There is no evidence she ever challenged the counseling curriculum in front of other students or publicly undermined her instructors.
  • “[T]hat readers or listeners are not exposed to material that may be inappropriate for their level of maturity.” There were no readers or listeners. Clearly inapplicable.
  • “[T]hat the views of the individual speaker are not erroneously attributed to the school.” No one believes that a student complaining about the school is speaking on behalf of the school (and again, there was no listening audience). Again, clearly inapplicable.

Since Ward’s speech neither interfered with classroom instruction nor exposed immature listeners to explicit material nor transmitted a confusing message to the public, there is no reason to classify it as Hazelwood speech.

Well, if Hazelwood is not the right legal standard, does that mean that colleges are powerless to penalize students who refuse to fulfill class requirements? Absolutely not.

A student can be downgraded or flunked if she fails to complete the normal academic requirements associated with the course, as long as the requirements are applied even-handedly (which is the unresolved issue in Ward). There is no First Amendment right to refuse to read aloud in Spanish class or refuse to write a poem in English Lit.

If speech escalates beyond First Amendment boundaries — e.g., threatening to hit the professor — then the disciplinary process is appropriate. But to discipline a student for the content of her speech, the college should at a bare minimum be held to the heightened Tinker standard, which puts the burden on the school to demonstrate that the student’s words caused a substantial disruption. That is plenty enough authority to maintain good order, while leaving students the freedom they need to experiment with edgy ideas in the intellectual laboratory of the campus.

Why Ward isn’t a Hazelwood case

The damage that the Sixth Circuit inflicted on the rights of all college students was almost completely avoidable. Hazelwood applies only to censorship of speech based on its content, and there was no content-based censorship of speech in this case.

Stripped to its essentials, what happened in Ward is: Student tells instructor she can’t counsel gay kids and will refer them to other counselors. Instructor tells student that referral is not an option. Student insists that she will refer anyway. Student gets run out of the program.

Ward was not punished for saying she refused to complete the counseling assignment. She was punished for refusing to complete the assignment. The first is speech. The second is conduct. And conduct is not governed by Hazelwood.

Imagine it this way.

Instead of saying, “No, I refuse to counsel the student,” Ward instead says, “Of course, I’d be happy to counsel the student.” And then she doesn’t show up for the counseling session.

She is asked whether she is refusing the assignment on the grounds of the student’s homosexuality, and she insists, “No, of course not, I love gay kids, let’s reschedule the counseling session.” And then she doesn’t show up again.

Wouldn’t she have been punished anyway, because she refused the assignment by conduct even though accepting it by word? Undoubtedly. And that is the point. The words merely communicated the refusal. (Indeed, the write-up from her faculty review committee says Ward is being punished for “refusing to change behavior.”)

Assuming that Ward is completely right and that the university is completely lying, then the expulsion was about Ward’s religious opposition to homosexuality. But that’s not speech either.

The Sixth Circuit actually appeared to understand this: “Instead of insisting on changing her clients,” Judge Sutton wrote, “Ward asked only that the university not change her—that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits.”

In other words, after needlessly laying waste to much of college students’ First Amendment rights, Judge Sutton then recognized this is not a case about what Ward said or planned to say. It is a case about whether Eastern Michigan lied about having a no-referring-clients policy — a policy that it appears to have enforced only selectively.

To be sure, Ward has some sort of First Amendment claim — that the state was demanding that she alter or abandon her religious convictions, or was discriminating against people who hold religious convictions — but it is not about the content of speech. And the content of speech is the only thing that Hazelwood is about. The Hazelwood analysis has never been applied to, and cannot plausibly be applied to, a claim of infringement of religious freedom.

The right legal analysis is that which applies to any claim of religious-based discrimination. First, the student must show show evidence that religious bias motivated the adverse decision. Second, the decision-maker gets a chance to show a legitimate alternative explanation that is not based on the student’s religious beliefs. And third, the student gets to present rebuttal evidence that the school’s so-called “legitimate” explanation is a mere pretext. If there is evidence pointing in both directions, then the case goes to a jury.

This is a case about motives, not about speech, and Hazelwood should never have entered the discussion.

Why Ward (probably) isn’t awful news for college journalists

Ward’s discussion of Hazelwood applies, by its own terms, to “curricular” speech in the context of class assignments. Very few college publications are produced entirely as class assignments; some are totally independent, and most are at least quasi-independent, with students (not professors) making the assignments and editing the copy. A publication does not become “curricular” just because it receives some college funding — indeed, the artistic and cultural and athletic activities funded by colleges are referred to as “extra-curricular.” So in the typical college news operation, Ward is of no relevance.

Make no mistake, this is a bad ruling, and especially bad for would-be whistleblowers. If the court’s approach in Ward is accepted as law, then speech about a college’s curriculum — even if made in private, outside of the classroom — can be controlled as “curricular” speech.

The potential for abuse is obvious. A student who writes a letter to the board of trustees to complain about the quality of the instruction she is receiving should be able to do so confidently and without fear of reprisal. But if Ward is the law, then that complaint may now be Hazelwood speech — since questioning the curriculum, even outside of class time, is Hazelwood speech. If so, then it can be punished on the basis of nothing more than the school’s claim of a “legitimate pedagogical concern.”

We have already seen this type of abuse, at Auburn University—Montgomery, where a 47-year-old nursing student was told that, because of Hazelwood, she had no First Amendment right to complain about the unfairness of the grading and disciplinary process. What happened to Judith Heenan at Auburn was given sanction and legitimacy by what the Sixth Circuit did in Ward.

However dispiriting Ward may seem, it cannot be overlooked that, at the end of the day, the student won. Most federal lawsuits are disposed of at or before this pretrial stage (“summary judgment”), so surviving to get before a jury is no small accomplishment.

Ward repudiates any notion college attorneys may have had that, once speech is classified as Hazelwood speech, that means the college automatically wins and the student automatically loses. We now know better, conclusively so.

Ward stands for the proposition that, if the student can prove an impermissible motive, then the student will prevail even under the censorship-friendly Hazelwood standard. And once a student has raised the inference of an improper motive, it is for a jury to sort out. (In Ward‘s case, it was decisive that the college imposed punishment under what appeared to be made-up-on-the-spot standards.)

If the takeaway from Ward is that colleges cannot expect to summarily dispose of their students’ constitutional claims where the motivation for discipline is in doubt, and where the documentation of a legitimate motive is thin, that is not so bad of a lesson.