A federal appeals court Thursday refused to reconsider a January ruling giving colleges expanded latitude to punish students for the content of their speech.
In a brief order, the 6th U.S. Circuit Court of Appeals denied a petition to rehear Ward v. Polite, a case that — for the first time in the Ohio-based circuit — says college students are limited to the minimal free speech protection of the Supreme Court’s Hazelwood standard when they speak in a “curricular” setting.
Hazelwood School District v. Kuhlmeier reduced the legal burden for public schools to justify censoring speech, if the speech takes place in the context of a class-produced newspaper, play or other “curricular” activity. In that setting, schools may censor if they can support the decision with some reasonable educational justification; they need not demonstrate that the speech was actually unlawful or disruptive.
An earlier Sixth Circuit ruling involving a college yearbook, Kincaid v. Gibson, cast doubt on whether Hazelwood applied at the college level. In that 2001 case, the circuit decided that Kentucky State University overstepped students’ First Amendment rights by refusing to distribute a yearbook over stylistic disagreement with its title, color scheme and choice of photographs.
Because of the apparent inconsistency with Kincaid, the Student Press Law Center was urging the circuit to rehear the three-judge panel opinion in the Ward case en banc, meaning all 16 judges would consider whether to overrule the panel.
In the Ward case, a graduate student at Eastern Michigan University studying to be a counselor was kicked out of the counseling program after expressing religious opposition to homosexuality. Ward told her supervising professor that, if asked to counsel a child about homosexuality, she would instead refer the child to a more supportive counselor; the college insisted that it had a strict policy against referrals that required counselors to see all students, regardless of their personal beliefs.
In its Jan. 27 ruling, the three-judge panel ruled against the former student, Julea Ward, on the primary legal issue by deciding that Hazelwood was the correct legal standard by which to gauge the free speech rights of college students. Students rarely prevail on First Amendment challenges under the Hazelwood standard, which is highly deferential to schools’ censorship decisions.
But Ward ultimately won on the outcome, because the court decided there was a contested issue requiring consideration by a jury — namely, whether Eastern Michigan in fact punished her because of her religious beliefs (as she argues) or because she refused to complete a lab-class assignment (as the school argues). Because of that unresolved question of motivation, the panel sent the case back to U.S. district court for a jury trial.
Hoping to avoid a trial, Eastern Michigan petitioned the entire Sixth Circuit to vacate and rehear the case, arguing that the panel showed insufficient deference to the college over a matter of internal academic governance.
The SPLC filed its own petition Feb. 27, arguing that the panel’s ruling not only was inconsistent with the earlier Kincaid case (and therefore void), but also inconsistent with Supreme Court precedent and with other Sixth Circuit rulings on the scope of Hazelwood. In prior rulings, the circuit had refused to apply Hazelwood unless the student was speaking in a setting that might cause the listening audience to conclude that her remarks were an officially sponsored school message. Ward’s speech, by contrast, took place in a private one-on-one conversation with her instructor.
But the court announced Thursday that no judge had voted to rehear the case, making the panel’s January opinion final.
The Sixth Circuit sets the legal standard for federal courts in Ohio, Michigan, Kentucky and Tennessee. Unless the college convinces the U.S. Supreme Court to accept the case, which is highly unlikely, the case will now proceed to trial, after which the verdict will again be eligible for appeal.
While First Amendment advocates expressed confidence after Hazelwood was handed down in 1988 that the ruling would be limited to the K-12 setting, where discipline is given greater importance and the speech of minors is afforded less value, the recent trend has been to the contrary. At least three federal circuits (the Seventh, Tenth and Eleventh) had applied Hazelwood to govern the rights of college students before the Ward ruling, and district courts in Alabama and Georgia recently have thrown out college students’ First Amendment cases on Hazelwood grounds.
Because the Ward panel did not have the authority to overrule the circuit’s earlier en banc ruling in the Kincaid case — indeed, the Ward panel did not even acknowledge that the Kincaid case existed — college student media in the four Sixth Circuit states still should be able to claim the benefit of the heightened First Amendment protection recognized in Kincaid. In Kincaid, the court found that college media outlets, including yearbooks, function as “public forums” for the expression of student views. Accordingly, schools may censor their content only if the content breaks the law or incites a substantial disruption of school functions.