Shouldn't have to say this, but three judges just did: If your college forces you to be molested by your classmates, you have a First Amendment right to complain

Students at public colleges and universities can more confidently object to curricular decisions at their institutions without fear of retaliation, thanks to a federal appeals court’s ruling in the case of Florida nursing students who faced reprisals for resisting an order to serve as human practice dummies for gynecological exams.

You read that last part right. 

Not only did a public institution of higher education consider it a legitimate educational practice to force women to undergo invasive vaginal examinations for the benefit of their male classmates, and not only did that institution believe it was legally entitled to retaliate against women who complained about the practice, but – up until Monday’s ruling – the federal courts were on the side of the asylum-keepers. 

In a 3-0 ruling, the Atlanta-based Eleventh Circuit U.S. Court of Appeals threw out a district court’s ruling that speech complaining about a college’s curricular decisions can be regulated as if the complaints were themselves a part of the curriculum. The ruling, Milward v. Shaheen, revives the First Amendment claim of three Valencia College nursing students against the Orlando college and two administrators of its sonography program. (The case also restores the plaintiffs’ Fourth Amendment claims that the compelled sonograms constituted an impermissible government search, a claim that U.S. District Judge Gregory A. Presnell erroneously dismissed.)

When the Supreme Court diminished the free-expression rights of high-school journalists in a 1988 ruling legitimizing the censorship of “curricular” publications, the justices could scarcely have envisioned how lower courts would expand the reach of Hazelwood School District v. Kuhlmeier beyond any rational boundary.

Over the years, Hazelwood – envisioned as a narrow exception to the general rule that students have full First Amendment protection on campus, up to the point where their speech breaks the law or substantially disrupts school operations – has been misapplied far beyond its high-school newsroom context. 

It has been applied to justify punishing students who mention their religious faith during commencement speeches, and to disqualify a student from elected office for advocating in support of same-sex couples. Most noxiously, it was applied to discipline a Texas high school cheerleader who sensibly declined to recite a school-compelled cheer honoring the athlete who pleaded guilty to assaulting her.

Well, we’ve finally located where Hazelwood stops – students do not, it turns out, leave their First Amendment rights at the va-jay-jay gates.

I have told the story of Milward v. Shaheen a dozen times in college lecture halls around the country over the past year, and it has never failed to elicit gasps – not just for the conscription of students as guinea pigs, but for the college’s tone-deaf stubbornness in fighting to legitimize the practice.

Judge William Pryor’s straightforward opinion conclusively puts to rest the college’s argument that speech is subject to the institution’s control as “curricular” just because it is about the curriculum.

Hazelwood, as Pryor correctly analyzed it, is a narrow ruling that applies only where three prerequisites are satisfied: (1) the speech would reasonably be heard by the public as bearing the official imprint of the school, (2) the speech is supervised by faculty, and (3) the speech is itself part of an educational activity. Those conditions simply don’t apply to the speech of student whistle-blowers dissenting from an objectionable assignment:

        The speech at issue—the students’ complaints to the employees about the transvaginal ultrasounds—is not school-sponsored expression. Private complaints from individual students do not “bear the imprimatur of the school.”

The college tried to analogize the Valencia plaintiffs’ case to a 2011 Eleventh Circuit college-speech case involving a Georgia counseling student who insisted on trying to “convert” gay kids during a college practicum placement, but as Pryor noted, the cases couldn’t be more different. At Valencia, the students’ complaints weren’t made as part of an assignment – they were dissenting from an assignment – and they weren’t speaking to outside listeners as representatives of the college.  

The outcome in Milward is welcome news not just for people averse to faculty-assigned sexual battery – and you know who you are – but to anyone with a grievance about a college’s curricular offerings. Had the district court’s ruling stood, it would have a cast a chilling shadow discouraging all types of whistle-blowing speech on college campuses, including that of journalists and editorial commentators.

While the Milward opinion imposes some badly needed boundaries on the Hazelwood standard, it still leaves college students as “second-class speakers” without the full benefit of First Amendment rights afforded in the off-campus world.

In a friend-of-the-court brief joined by three other free-speech advocacy organizations, the Student Press Law Center encouraged the judges to rule that college students have the full benefit of First Amendment protection against content-based censorship or retaliation by their institutions. Instead, Pryor defaulted to the Supreme Court’s Tinker standard – another case birthed in the K-12 setting – which gave schools the authority to restrict or punish speech that “materially disrupts” school activities or causes “substantial disorder.”

The Supreme Court has never said whether adult-aged college students are limited to the level of freedom recognized in Tinker or whether heightened protection comparable to that in the off-campus “real world” should apply. The justices have been especially protective of speakers on college campuses, but – at least for now – college students in the Eleventh Circuit states of Florida, Georgia and Alabama will be at risk of campus discipline if their speech can be characterized as materially disruptive.

The district court will now be asked to apply Tinker to the protests of the three former Valencia students. The SPLC will be following the case and prepared to intercede again if the district judge fails to heed the wakeup call of a 3-0 reversal.