Can Universities Restrict Free Speech On Campus?
This year marks the 25th anniversary of a Supreme Court decision that gave schools the right to restrict students’ free speech. Originally intended for high schools, many universities have come to use Hazelwood School District v. Kuhlmeier to control their image and reputation—at the expense of a free press on campus.
“I think schools have just completely lost their minds,” Adam Goldstein, attorney advocate for the Student Press Law Center, told Campus Progress. “It’s resulted in just real basic confusion about what civil rights mean.”
The case centered around a Missouri student newspaper at Hazelwood East High School, where articles on teenage pregnancy and divorce were rejected by the school principal. The newspaper's faculty adviser filed suit against the school district under the Tinker v. Des Moines Independent Community School District (1969) Supreme Court precedent, which guaranteed the right to free speech for high school students, and had spawned over 150 other legal cases that upheld student first amendment rights.
But the Court sided against the student newspaper, ruling that school administrations could restrict student speech “so long as their actions are reasonably related to legitimate pedagogical concerns.”
“The fundamental problem with Hazelwood was that it failed to give schools very clear guidance on what’s permissible and what’s not permissible,” said Gabe Rottman, legislative council and policy adviser for the ACLU. “It opened the door to schools being overly censorial because of the lax standard in the case.”
Recent cases have seen the migration of student speech restrictions to universities—a Seventh Circuit Court of Appeals ruled in 2005 that the Hazelwood precedent applied to college newspapers, which was corroborated by the Sixth Circuit Court in 2012. Currently, these rulings only apply to states under the jurisdiction of the two circuit courts.
“When lower courts use rulings like Hazelwood, which come from the K-12 context, to determine the rights that public college students have, we blur that very important distinction between high school rights and college rights,” said William Creeley, Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education. “That’s a big problem.”
The Hazelwood argument itself included points specific to high school students, such as age and maturity, which do not necessarily apply to college students.
The case has also been used to silence cases outside of journalism. In one incident, University of Minnesota mortuary sciences graduate student Amanda Tatro who was academically punished after writing a series of Facebook posts about her cadaver class. The state Supreme Court ruled against Tatro, though she planned to appeal the decision in the Supreme Court before her untimely death last spring.
“The most egregious thing that’s been happening is that we continue to see schools trying to interfere with student speech because they disagree with what the student is saying," Rottman said. "And that is one of the worst crimes under the first amendment.”
Universities restrict free speech on campus in other ways. Some create sexual harassment policies, which may prohibit behaviors like “sexual gestures” or “sexual propositions” without giving concrete, narrow definitions of what these actions might look like, or allowing for an exception for consensual partners.
Housing contracts and civility codes that require students to be nice to each other are also a frequent culprit.
“It’s an admirable intention, but when a public university requires you to be nice to a peer, it oversteps its bounds,” Creeley said. “You should be able to voice your disagreement with any view on campus.”
More recently, University of North Carolina Chapel Hill undergraduate Landen Gambill faces disciplinary action over charges that she intimidated and harassed her alleged rapist by criticizing the university’s handling of sexual assault cases.
“I’m sure it would be real nice for UNC if rape victims didn't talk about how lousy and bizarre their process is,” Goldstein said. “But that doesn’t mean they get away with it either.”
Rules on campus postings and free speech zones can also skirt First Amendment protections. At many schools, individuals are prohibited from posting messages about drugs—which prevents, in addition to materials about drug sales, publicity for events where drugs are discussed, like Alcoholics Anonymous and Students for a Sensible Drug Policy meetings. Free speech zones typically constitute just a small fraction of campus, and due to the limited space students often have to sign up ahead of time to use the area.
“The Supreme Court has identified the public college campus as the marketplace of ideas, and made a clear parallel between the health of democracy and the robust dialogue on campus,” Creeley said. “This is where future educators and leaders and current citizens are allowed to test out and fashion their ideas in dialogues with their peers. So it needs to be an unfettered, robust discussion.”
While Hazelwood has historically been used to restrict student speech, an interpretation this week used the precedent to protect students’ access to information. The case centered around an Arizona law that bans courses that promote the upheaval of the United States, create resentment between racial groups, are designed primarily for pupils of a particular ethnic group, or that advocate for ethnic solidarity. The law had the effect of prohibiting a contentious Mexican-American Studies curriculum in public schools.
While the US District Court found three of the four provisions constitutional, it did strike down the provision regarding the creation of a course for specific ethnic groups, arguing that just as restrictions on students’ free speech must serve a legitimate educational purpose under Hazelwood, then so must restrictions on students’ access to information.
“Your right to speak is like your right to hear,” Goldstein said. “It would be a pretty lousy right to free speech if you can say all you want but we’re going to stop anybody from hearing you.”
Opponents of the law plan to take their arguments to the Federal Appeals Court, where the ruling and rationale will be revisited and possibly amended or reversed. Until then, Hazelwood stands not only as a precedent for limiting high school students’ speech, but also as a shield against schools attempting to restrict students’ access to information—legal reasoning that seem diametrically opposed and may contradict each other.
While the interpretation of Hazelwood continues to be fine-tuned, advocates for free speech have been lobbying state legislatures to pass so-called ‘anti-Hazelwood’ laws, which prohibit restrictions on college students’ free speech. Other organizations have acted as a helping hand for students seeking legal justice against overreaching restrictions on speech propagated by universities, which are widespread and poorly recognized as violations of the first amendment.
“It is a national scandal, frankly,” Creeley said. “And as long as schools continue to maintain unconstitutional policies, we will see students challenge those policies when they have been silenced on campus.”
Jenn Nowicki is a reporter for Generation Progress.