When making its ruling in Hazelwood School District v. Kuhlmeier, the Supreme Court stated in it’s opinion that it “need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.”
The need to decide may not be far off.
Lower courts have begun applying the Hazelwood standard in college-level free speech cases. Most recently, Hazelwood was invoked by a federal appeals court in the case of Ward v. Polite – a case centered on a counseling student, but which some fear could have a lasting impact on student speech rights.
After teaching high school English and broadcasting classes for about 10 years, Julea Ward enrolled in Eastern Michigan University’s graduate-level counseling program. With a 3.91 GPA, Ward enrolled in one of her final courses – a practicum course, where students counsel real clients. Problems arose when the university asked Ward to counsel a gay client.
Although she agreed to meet with the client, she told her supervisor that she would not be able to affirm the client’s “homosexual behavior” because of her religious beliefs. She asked her supervisor if she should refer the client to another counselor right away, or meet with the client and only make a referral if a conflict arose. The university supervisor had her refer the client and set up an informal review session.
In the meeting, Ward indicated that she was unwilling to compromise her beliefs on the issue, at which point she was advised to either withdraw from the program or attend a formal review session. Ward chose to undergo formal review. There, a faculty and student committee unanimously found Ward’s actions inexcusable, and in conflict with the American Counseling Association Code of Ethics. Ward was immediately dismissed.
Ward’s attorney believes that her First Amendment right to freedom of religion was violated.
“They didn’t like her religious beliefs and views, and kicked her out because she was unwilling to violate those beliefs,” Alliance Defending Freedom attorney Jeremy Tedesco said. “One professor asked her if she felt that her Christian beliefs were superior to those of others. Another professor took her on what he called a theological bout, where he questioned her understanding of scripture and tried to explain to her why she was wrong, the way she was interpreting scripture.”
Tedesco went on to say that even if schools do have the right to restrict certain speech, they are never allowed to censor based on their personal disagreement with the opinion of the speaker.
Historically, the 6th U.S. Circuit Court of Appeals, which covers Michigan, has ruled favorably for college students who claim violations of their freedom of speech rights. In 2001, the court ruled in Kincaid v. Gibson, after Kentucky State University students sued the school’s vice president of student affairs for locking what she found to be unsatisfactory yearbooks in a closet. The biggest dispute seemed to be that the yearbook did not include school colors. After a lower court sided with the school, citing Hazelwood, the appeals court ruled in favor of the students – writing that “Hazelwood has little application to this case.”
The same was not true in Ward’s case.
“The Hazelwood test, it is true, arose in the context of speech by high school students, not speech by college or graduate students,” the court wrote. “But for the same reason this test works for students who have not yet entered high school, it works for students who have graduated from high school. The key word is student.”
The court cited Hazelwood a total of 16 times in its opinion. It is now binding precedent in Michigan, Ohio, Kentucky and Tennessee.
But the ruling was ultimately a win for Ward, with case being allowed to proceed to a trial in the district court. The appeals court ruled that while Ward was only entitled to the Hazelwood level of First Amendment protection while in the counseling program, a jury must decide whether the university based its discipline on a legitimate educational goal – or mere disagreement with her religious beliefs. The trial is set to take place in October.
Neither Tedesco nor the American Civil Liberties Union of Michigan – which filed a brief in support of EMU – feel that Hazelwood is applicable to this case.
“I don’t think it applies in this context,” Tedesco said. “I think that Hazelwood should be limited to a very narrow scope of speech because Hazelwood is a very deferential standard to the government, and I worry about its expansion. If it’s expanded, then I think free speech is obviously going to be limited more.”
Jay Kaplan, an attorney on ACLU’s LGBT Legal Project, has a different take. Kaplan said the case is more of a civil rights issue than a First Amendment one.
“I don’t think it’s a situation like Hazelwood, where a student wanted to articulate a critical point of view,” Kaplan said. “We don’t believe that this a violation towards freedom of religion rights under the constitution…. She was terminated from the program because she indicated she would not and could not comply with a core curricular value of the Eastern Michigan University counseling program – that is, able to render nonjudgmental counseling services.”
Kaplan said the school depends on providing these kinds of services for its American Counseling Association accreditation.
Although some find Hazelwood being applied to colleges problematic, Mark Goodman, former executive director of the Student Press Law Center, said it was inevitable that questions would arise.
“I think part of the reason that was inevitable and will continue to be so, is because the courts don’t deal with student press cases frequently enough for there to be a very clear, distinct framework of analyzing student First Amendment claims that occur in that context,” Goodman said. “So what judges do certainly is look for Supreme Court decisions that look like they’re involving similar facts, and take the frame of analysis from that. Because the Supreme Court has never really specifically dealt with a college censorship case…. Hazelwood is the closest example there is.”
Given the vastly reduced level of free press rights Hazelwood brought to high school journalism, any application of the case at the university level is particularly concerning for college media.
“I am concerned about the path the court seems to be taking,” said Neil Ralston, a professor at Western Kentucky University and vice president of student chapter affairs for the Society of Professional Journalists. “Applying the Hazelwood standards at the college level would put a target on the back of virtually every college student journalist in the circuit.”
The issue, while a relatively recent concern, has been addressed before. The neighboring Seventh Circuit raised the alarm of student press advocates when it applied Hazelwood in the 2005 case of Hosty v. Carter.
In Hosty, the editor of the student newspaper at Illinois’ Governors State University brought suit against the school’s dean. After the newspaper published several stories critical of administrators, the dean told the staff that they could not publish any more issues unless they underwent prior review.
The appeals court wrote that Hazelwood provides the “starting point” for analyzing college newspaper censorship cases. Thus, whether a college’s censorship is permissible hinges on whether the publication is a “designated public forum.”
Many disagree with the Seventh Circuit’s approach.
“I think the bad thing would be that it means that college student media are not being treated as adults,” said Jim Killman, former president of the Illinois College Press Association. “Courts have consistently ruled that the First Amendment applies to adults and often students, too, but especially to adults, and to say that it doesn’t apply to college media would be depriving adults of First Amendment rights. That’s why it was such a concern.”
It didn’t take long for student journalists – and legislators – to respond. Illinois nullified the impact of Hosty by passing the Illinois College Campus Press Act later in 2005. The state law gives further freedom of speech protection to college journalists by declaring all publications at public colleges to be public forums. It effectively means that no public college media will be analyzed under Hazelwood.
“It just meant that there was kind of an atmosphere of restriction and an atmosphere of potential censorship that everybody knew was wrong, and everybody knew was probably not going to withstand a legal challenge, but yet, there was this weird case law out there, that we think was a very bad decision.” Killam said. “What the new law did was kind of prevented a test case from potentially causing some real harm.”
The law has protected college students in several instances since.
While Goodman supports the legislative outcome of the dispute, he wishes the conclusion would have come from the court.
“I’m frustrated by the idea that that is the most realistic solution, because I just know how difficult that solution is to achieve, and in some places, perhaps, politically impossible,” Goodman said. “I am not a big fan of the legislative process. I feel like the number of legislators who understand this issue, or care about it, is so small that it’s very difficult to receive a fair hearing.”
Although Illinois was able to fend off the threat of Hazelwood through the College Campus Press Act, student journalists in the Sixth Circuit may not be so fortunate in the aftermath of Ward.
“I understand the court’s desire to support the application of professional standards in academic programs at the college level,” Ralston said. “[But] it’s already common for high school administrators to use Hazelwood to censor important student speech. And some college administrators in the Sixth Circuit would love to quiet dissent on their campus by using the ‘legitimate curricular objectives’ argument anytime a student journalist expressed something that didn’t promote the school.”
By Nikki McGee, SPLC staff writer.