Do students at a private high school or college have to check their free speech rights at the campus gate when they walk to school each morning?
The answer to that question is a resounding maybe. The First Amendment says, “Congress shall make no law.” Consequently, courts have held that it prevents only the government and those acting on its behalf from denying a person their free speech rights. Private institutions, therefore, are not generally subject to the limitations imposed by the First Amendment.[1]
Unfortunately, this has allowed some private campus officials to routinely censor student media stories they don’t like and punish those students who refuse to comply with their censorship demands.
Contrary to popular belief, however, all is not lost on the private school campus. The First Amendment is not the only weapon available to defenders of free expression. There are valid legal theories, along with strong policy arguments, that may help the private school journalist confronted with threats and acts of censorship.
I. Policy Arguments
The most powerful arguments against administrative censorship at private schools often have little to do with the law. The following suggested policy arguments against censorship are ones that private school student journalists can present to school officials to help convince them that censorship is — above all else — simply a bad practice.
First, even though a court may not be able to prevent censorship at a private school, this alone does not make it right. Just because you can censor does not mean that you should. This is, of course, the nation where Thomas Jefferson said, “[w]ere it up to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter!” One can argue that any official censorship of a newspaper, whether by a private school administrator or a state or local government official, is patently un-American. If a private school believes that its ultimate function is to turn students into valuable citizens, a basic understanding of and experience with the workings of a free society is a requirement. A student journalist who has experienced censorship and prior restraint throughout his academic career will approach the realities of journalism and its role in American society with a warped perspective. Indeed, free expression and a flourishing marketplace of ideas is, after all, what separates America from the totalitarian nations we condemn.
Second, a private school that actively seeks to stifle the expression of its students is not only violating fundamental democratic concepts, it is also retarding one of the basic necessities of the learning process — the unfettered free flow of ideas. Minds need new ideas and means of expression to grow. When censored, the students of a private school receive a lesser education than their counterparts in public schools.
Third, because many private schools are affiliated with a religious organization, a special affinity for the First Amendment should create a common bond with journalists and their free expression rights. If it were not for the First Amendment and its protections for the free exercise of religion, many of the schools themselves might not exist. It would seem incumbent upon religious schools to advocate the guarantees that protect journalists as much as themselves.
Even if this kind of reasoning does not work, there remains the possibility that public and political pressure may lessen an administrator’s desire to censor students. Students, faculty and alumni publicly expressing their grievances to the local press sometimes get results when internal discussion does not. Appeals by well-placed outsiders (especially those who happen to be alumni of the school) can have a powerful effect on administrators who might be able to ignore a student’s philosophical arguments that censorship is an unsound educational practice.
School administrators who are quick to censor may hesitate if they realize that their actions may lead to bad publicity for the school. Administrators have been known to have a change of heart when it appears that their decision to censor student expression might have a negative impact on next year’s enrollment figuresor fund-raising totals. In addition, demonstrating to school officials that you are willing to fight for free expression rights may cause administrators to reconsider their position.
Ultimately, however, there is the possibility of going to court, seeking legal redress for wrongs done, even when those wrongs are committed by a private institution. While in some cases the chances for relief may be slim, there are at least four legal theories that could, given the right circumstances, gain a favorable hearing from a court in a case involving censorship of a private school’s media.
II. Contract Rights/Law of Associations
In the right situation, the legal remedy most likely to protect the student journalist in a private school is a claim based on a breach of the guidelines or rules established by the private school itself.
Those catalogs, student handbooks and recruiting brochures distributed by schools usually contain pages of policies, regulations and rules. Many courts have ruled that distribution of these documents and the offer of admission to the school, both of which include explicit and implicit promises, and an acceptance and payment of tuition by a student creates a contractual relationship.[2] Other courts have found that the law of associations, rather than strict contract law, is more appropriate to the student/private school relationship.[3] The law of associations has been applied to private schools, churches, civic groups and other private organizations to address situations where contract rights, property rights and other personal rights merge. While the legal theories vary slightly, the general notion is the same: where a private school voluntarily establishes a set of guidelines or rules, it must adhere to them. Otherwise, there exists a breach of a legally enforceable promise for which a student may obtain legal relief.
For example, a private university is not legally required to establish a procedure that provides a student the opportunity to respond when the school wants to take action against him or her, such as a hearing to answer a charge that could result in a student’s expulsion. With no government rules to guide it, a private school can generally expel a student for no reason. However, if that school has a written policy outlining the procedures to be followed in a student disciplinary action, those procedures must be followed.[4] If not, there is a breach of contract or associational promise and the student may seek damages or reinstatement. This “due process” does not need to meet the standards of the federal Constitution, but it does need to meet standards specified in the student handbook, catalog or other policy statement.
While this legal theory has come up mainly in the context of students being expelled or denied diplomas, there is no reason this rationale should not be extended to cover other promises made by a college or university. Indeed, in a case involving the Dartmouth Review, an independent student publication at Dartmouth College, a New Hampshire state court judge, in addressing promises made by the school in the Dartmouth Student Handbook, ruled that a “private college is equally obliged not to violate any of the contractual rights of its students.”[5]
While the judge limited his ruling to a section of the Handbook that dealt with student disciplinary proceedings, the language above indicated that other campus promises made in the Handbook had to be kept as well. Importantly, prior to the ruling, lawyers for the students had submitted arguments to the judge that pointed out sections in the Handbook that guaranteed Dartmouth students the right to express themselves freely.[6]
In some cases, student journalists may even find themselves the beneficiary of the contractual rights extended to their advisers. A faculty member’s contract with his or her school frequently contains an academic freedom provision. While the specific protections vary, academic freedom commonly protects the right of a professor to teach his students as he or she deems appropriate. For a faculty member whose contractual duties include advising student media this arguably might include the right to teach his or her students to publish free from administrative control and editorial interference.
If a private school clearly promises or states that its students have the right to openly express their viewpoints or that student publications will be free of administrative interference with final editorial control left to the students, any action contrary to that policy may be a breach of a promise for which a court could presumably give relief. Students should check to see if such a policy exists at their school, and if not, encourage the adoption of one.
III. California’s “Leonard Law”: Unique Relief for California Students
Students at California schools have a unique weapon in the fight against censorship in the form of a short, but remarkable state law. Adopted in 1992 with near unanimous bipartisan support, the “Leonard Law,”[7] named after its primary sponsor, state Sen. Bill Leonard, R-San Bernardino, reads in part: “It is the intent of the Legislature that a student shall have the same right toexercise his or her right to free speech on campus as he or she enjoys when off campus.” The “Leonard Law” expressly forbids administrators from taking disciplinary action against a student for engaging in speech that, outside of campus, would be protected by the First Amendment. What makes the law so unique — in addition to its exceptionally broad and protective language of student free speech rights — is that it applies to students at both public and private high schools and colleges. Widely regarded as a “bold stroke” for student free speech rights, the law goes where no other federal or state law has gone before, essentially converting the private school into a public forum. In addition, the law prohibits “prior restraint of student speech” at private universities, and allows all students the rightto file a civil lawsuit against school officials who violate its provisions. Although the law does not allow a student to sue for money damages, the court can order the school to pay a student’s attorneys’ fees if the student wins. There are, however, exceptions in the law that allow private religious schools to suppress student speech where it is shown that such speech “would not be consistent with the religious tenets of the organization.” “Hate speech” is also punishable — though the term is very narrowly defined. In addition, school officials are permitted to regulate free expression using content-neutral “reasonable time, place and manner regulations.”
In the decade since its passage, the “Leonard Law” has had a significant effect on student speech at private schools. In the first case to actually go to court under the law, a group of Stanford University students successfully challenged the school’s speech code, which, among other things, prohibited speech “intended to insult or stigmatize an individual or group of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation or national or ethnic origin.” The students, lead by Stanford Law School graduate Robert Corry, claimed that such vague language had a substantial “chilling effect” on meaningful, honest communication. In addition, the Santa Clara County Superior Court held that Stanford’s speech code was both facially overbroad and underinclusive under the First Amendment, and therefore invalid under the “Leonard Law.”[8]
The importance of the “Leonard Law” appears to be in its deterrent effect on school censorship. In effect, administrators in California now wishing to suppressstudent speech must weigh whether this suppression is important enough to them to withstand litigation allowed under the “Leonard Law.” Indeed, several students have avoided threatened punishment for otherwise protected speech once it was made known that the students were prepared to pursue lawsuits under the “Leonard Law.”[9]
Noted constitutional law professor Julian N. Eule once remarked, “Suffice it to say that, were I representing a California school district, I would be less than confident about advising my client that it could exercise editorial control over the contents of a high school’s newspaper.”[10] All in all, the “Leonard Law’s” transport of the First Amendment onto private school property is a noteworthy step forward for protecting student free expression rights on campus.
IV. Sense of Congress
Although legislation similar to the “Leonard Law” has not caught on as of yet in the rest of the country, the United States Congress has indicated its support for free expression rights for students at both public and private colleges. While an attempt to create a federal “Leonard Law” fell short,[11] Congress adopted revisions to the Higher Education Act in 1998 that included a “sense of Congress” espousing non-binding guidelines for addressing student free expression rights. The “sense of Congress” states that “no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association,” be punished for engaging in conduct that would otherwise be protected by the First and Fourteenth Amendments at a public college.[12]
While this legislation, sponsored by Rep. Robert Livingston, R-La., and Sen. Larry Craig, R-Idaho, has been described as “a welcome step forward for press rights on the private campus,”[13] a “sense of Congress” is merely a reflection of Congress’ views and recommendations, and should not be regarded as a binding law that imposes penalties for noncompliance. However, students can use the words of Congress in their attempt to persuade administrators why they should be more sensitive to campus free speech concerns.
V. State Action
Regardless of whether a contract or other legal relationship exists, a court may exercise its jurisdiction and protect free expression rights if it is shown that the private university is really taking what amounts to governmental action when it censors the student press. This so-called “state action” doctrine comes in three forms, each rare and difficult to demonstrate. The first is proof that the private school and the state have developed an interdependent, symbiotic relationship.[14] This is possible when the school is heavily dependent on the state for its existence, relying on infusions of public money, financing and other viable means of support. In return, the state depends on the private school to perform a part of its function.
Initially it might seem that practically all private schools might fall into this category because of the massive amounts of money the state and federal governments provide for the support of education and students. However, this is not the case. In several instances, courts have ruled that financial support is not enough.[15]
State action might also be found without this dependent relationship if the private school is only doing what the government tells it to do. This is called the “close nexus” test, where a citizen is being deprived of his rights because a private institution is adhering to a government regulation.[16] Under this rule, a student journalist would receive First Amendment protection if a government regulation was forcing the private school to exercise censorship or priorrestraint. Such a scenario is unlikely, however.
Finally, state action may be found if the private institution is performing duties and functions that traditionally have been done exclusively by the government.[17] The key to this legal doctrine is its exclusivity. Courts have found that a private entity is performing a public function only when that function has been done exclusively by the government in the past.[18] An example might be police protection provided by a private campus security force. Education, which has both a private as well as public history, would probably not fit this standard.
VI. State Constitutions
In some states the state constitution may provide a shield for defending freeexpression. In 1980, the U.S. Supreme Court said that the states are free to provide protection in their own constitutions beyond that of the federal Constitution.[19] The Court said that states may provide greater, even affirmative, protection for free speech on private property provided the value of the property was not diminished and the purposes for which it was used was not disrupted.[20]
Unlike the federal Constitution, which only prohibits governmental interference with free speech, the constitutions of 44 states have language that affirmatively protects free expression.[21] For example, the Alaska State Constitution’s free speech clause states: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”[22] The Alaska Supreme Court has said that the provision protects free speech “in a more explicit and direct manner” than does the FirstAmendment.[23]
A few states have construed their state constitutions to forbid the abridging of free press protections by private parties. Of these states, the constitutions of NewJersey, Massachusetts and Pennsylvania have been successfully used in the courts to protect the free expression rights of students on private campuses.[24] However, to date there has been no ruling on whether a state constitution, with an affirmative right of free speech and press, protects the student media at private schools from censorship.
For a court to make such a ruling, it would first have to hold that the private school had created a forum for student expression. Such a forum exists when the students are given editorial control of their publication. This is usually demonstrated through the appointment of students to editorial positions and the publication of student news, editorials or letters to the editor. Practically, almost every college student newspaper could be considered a forum for student expression.
Winning free speech protections for student journalists at private schools with this legal theory poses some risks for journalism as a whole. Forcing a private institution to allow use of its newspaper for public expression comes close to the state forcing publication of something it wants in a privately owned newspaper, something the Supreme Court has said is generally not permitted under the FirstAmendment.[25] The Court has also ruled that the government cannot force a private citizen to affirm a belief he does not share.[26] With these protections, the question arises as to whether the state, through its constitution and courts, can force a private school to allow a student newspaper to advocate ideas with which school officials disagree. Providing such a right to student journalists requires a careful delineation between a private school’s student newspaper where the school has willingly given editorialcontrol to its students and a private publishing company that clearly retains ultimate control of its publications. Because of the legal differences between these two situations, a distinction can easily be made.
VII. Independence
Even in law, the best defense may be a good offense. And rather than trying to formulate after-the-fact arguments as to why an administrator’s act of censorship is illegal, many student journalists have found it more effective to take away the means by which those administrators can censor in the first place. To limit administrative control, a publication can separate itself from the school by becoming a separate entity or corporation.
For a number of reasons, complete independence, either through formal incorporation or by other means, is practical for only a few publications. An independent newspaper or magazine at a private school should not expect any financial or material support from its school if it wants to guarantee its freedom from censorship. Because of the costs involved, only a small number of newspapers have found independence a realistic alternative. However, the proliferation of personal computers and the Internet has made it easier and less costly than in prior eras to create an independent forum for student expression.
While independence may be an attractive alternative, it does not overcome the ability of a private school to limit distribution of a publication on its campus or to punish students for their off-campus expression. Nevertheless, in the right situation, declaring independence from the school has worked well for a number of student publications.
VIII. Summary
Although official control of student journalists at many private schools remains a legal and practical reality, students who find themselves victims of censorship and prior restraint should not give in quietly. Ideally, control of the press should be as repugnant to the school as it is to the student journalist. But where school administrators cannot be convinced of the reasons for a strong, viable and editorially independent campus press, some private school students may have reasonable legal arguments available to them. Whether there is state action, a contract or other enforceable promise, a state constitution, a statute such as California’s “Leonard Law” — or the power of persuasion — press freedom on private campuses can realistically be fought for and won.
Can students be punished by private school officials for off-campus speech?
The ability of the private school to affect free expression does not always end at the schoolhouse gate. Absent a school policy or state statute to the contrary, a private school may have substantial leeway in punishing or even expelling a student for his or her off-campus speech. For example, in 1999, Peter Ubriaco was expelled from Albertus Magnus High School in Rockland County, New York, for hosting a personal Web site which, among other things, encouraged visitors to his site to “walk into the local mall and shout the word ‘penis’ at the top of their lungs.” The school found the site to be “violent and pornographic,” even though the Web site contained no threats or pornographic images. Although the First Amendment likely would have provided significant legal protection had Ubriaco been punished by public school officials[27], his attempts to seek legal redress were thrown out of federal court for one simple reason: he attended a private school.[28] The court ruled that because there was no state action involved, it lacked jurisdiction to prevent private school officials from punishing Ubriaco for his off-campus conduct.
Still, at least a handful of courts have refused to allow private school officials to exercise unfettered authority over off-campus student misconduct. In November 2002, a Minnesota state judge ordered a private school to reinstate a high school student who was expelled after a school official found him in possession of marijuana just off school grounds.[29] That same month, ajudge in Philadelphia ordered a private all-boys school to re-enroll a student expelled after he used a digital movie camera to secretly record a classmate in an “intimate moment” with a former girlfriend.[30] In both cases, judges expressed some concern over the fairness of the schools’ actions.
While the cases above are unusual, they do make clear that private school officials do not act in a vacuum. Punishing students for their purely private, off-campus conduct — and particularly for speech that is not unusually egregious or shocking — strikes many as unfair and heavy-handed. Students that publish a generally responsible, if controversial, off-campus student newspaper or Web site will usually find support — if not in a court of law at least in the court of public opinion.
1 Hudgens v. NLRB, 424 U.S. 507 (1976); but see discussion of “State Action,” infra Section V.2 Ross v. Creighton Univ., 957 F.2d 410 (7th Cir. 1992); Steinberg v. Chicago Medical School, 371 N.E.2d 634 (Ill. 1977); Zumbrun v. U.S.C., 51 ALR3d 991 (Cal. App. 1972); Univ. of Texas Health Science Ctr. at Houston v. Babb, 646 S.W.2d 502 (Tex. Ct. App. 1982); Stanoch v. Breck School, No. CT 02-019852 (Dist. Ct. Hennepin County Nov. 21, 2002)(temporary restraining order), see discussion at fn. 29, below; see also discussion ofDartmouth Review case, below. However, courts have given substantial deference to private universities in the interpretation of the rules and regulations found in a student handbook. See Schaer v. Brandeis Univ., 735 N.E.2d 373 (Mass.2000).3 Clayton v. Princeton Univ., 519 F. Supp. 802 (D.N.J. 1981); Tedeschi v. Wagner College, 404 N.E.2d 1302 (N.Y. Ct. App. 1980); A. v. C. College, 863 F. Supp. 156 (S.D.N.Y. 1994); Abrariao v. Hamline Univ. School of Law, 258 N.W.2d 108, 112 (Minn. 1977); Baltimore Univ. v. Colton, 57 A. 14 (Md. 1904).4 Jansen v. Emory Univ., 440 F. Supp. 1060 (N.D.Ga. 1977); see also Clayton; Tedeschi.5 Dartmouth Review v. Dartmouth College, CIV No. 88-E-111 (N.H. Super. Ct. Grafton Div., Jan. 3, 1989).6 Plaintiff’s Petition for Damages and Equitable Relief, Dartmouth Review v. Dartmouth College, CIV No. 88-E-111.7 Cal. Educ. Code 48950 (West 2002) (high schools); Cal. Educ. Code 94367 (West 2002) (colleges).8 Corry v. Stanford Univ., No. 740309 (Cal. Super. Ct. Feb. 27, 1995).9 For example, fraternity members at Occidental College avoided disciplinary action for publishing a lewd poem in a private newsletter which was inadvertently made public. Linda Seebach, Political Correctness in LA, NATIONAL REVIEW, July 19, 1993.10 Julian N. Eule, as completed by Jonathan D. Varat, Transporting First Amendment Norms to thePrivate Sector: With Every Wish There Comes a Curse, 45 U.C.L.A. L. REV. 1537 (1998).11 Congress made attempts to protect the free speech rights of private college students through the proposed Freedom of Speech and Association on Campus Act of 1997. Sponsored by Rep. Robert Livingston, R-La., and inspired by the banishment and punishment of fraternity and sorority members from several private universities, the bill (H.R. 980), which died in committee, would have denied federal funding to any institution found that violated the free speech and association rights of its students.12 20 U.S.C. 1011(a) (2002).13 Brian J. Steffen, Freedom of the Private-University Student Press: A Constitutional Proposal 35 (2000).14 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).15 Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Blackburn v. Fisk Univ., 443 F.2d 121, 123 (6th Cir. 1971). Indeed, only in Pennsylvania has this interdependent relationship been recognized. There the state not only provided money to the schools in question, it also had designated representatives on the boards of trustees. In addition, state statutes existed creating and defining the role the role the private schools were to play in the state university system. Even the names of the schools had been changed to demonstrate this role. With statutes to support them, the courts ruled that the schools were, in effect, part of the public university system, making them subject to restrictions on government action. Issacs v. Temple Univ., 385 F. Supp. 473 (E.D.Pa. 1974); Braden v. Univ. of Pittsburgh, 552 F.2d 948 (3rd Cir. 1977).16 Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).17 Marsh v. Alabama, 326 U.S. 501 (1946) (Court ruled that where a company-owned town was performing all the functions traditionally done by a local government it had to abide by the same federal guidelines as a government.)18 Flagg Bros. v. Brooks, 436 U.S. 149 (1978).19 PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).20 Id.21 For example, state courts in Alaska, California, Colorado, Indiana, Massachusetts, New Jersey, Oregon, Pennsylvania, Washington and Wyoming have indicated that the affirmative language in their constitutional free speech provisions provides broader protection than the federal Constitution’s First Amendment. Other state courts, however, have said their state constitutional provisions offer no free speech protection greater than the federal Constitution. Some of these states include Arizona, Connecticut, Georgia, Florida, Hawaii, Iowa, Maryland, Michigan, Minnesota, New Hampshire, New York, North Carolina, Ohio, SouthCarolina, South Dakota, Texas and Wisconsin.22 Alaska Const. Art I, sec. 5(2002).23 Messerli v. State, 626 P.2d 81, 83 (Alaska 1980).24 Abramowitz v. Boston Univ., CIV No. 82680 (Mass. Sup. Ct. Suffolk Div., Dec. 2, 1986); Pennsylvania v. Tate, 432 A.2d 1382 (Pa. 1981); New Jersey v. Schmid, 423 A.2d 615 (N.J. 1980).25 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).26 Wooley v. Maynard, 430 U.S. 705 (1977).27 See, The other side of the schoolhouse gate, Student Press Law Center (last viewed December 6, 2002).28 Ubriaco v. Albertus Magnus High School, No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000).29 Stanoch v. Breck School, No. CT 02-019852 (Dist. Ct. Hennepin County Nov. 21, 2002) (temporary restraining order); Draper, N., Breck must readmit expelled teen, Minneapolis Star Tribune, Nov. 27, 2002, at 1A.30 Woodall, M., Judge says student can stay in school, The Philadelphia Inquirer, Nov. 20, 2002, at B1.