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SCOTUS deals a blow to student press
Amid all the uproar this week about Harvard president Lawrence Summers' decision to resign, it was easy to overlook another major and troubling development in higher education: the Supreme Court's decision not to hear the appeal in Hosty v. Carter, a Seventh Circuit case with potentially disastrous implications for campus speech.
The facts are these: In 2000, student editors of a campus paper sued Governors State University after the administration demanded the right to review the paper's content before it went to press; last June, the Seventh Circuit Court of Appeals issued a ruling that overturned earlier ones, finding that the 1988 ruling in Hazelwood School District v. Kuhlmeier, which grants high schools the right to prior review of student journalism, may be applied to the collegiate student press. "If private speech in a public forum is off-limits to regulation even when that forum is a classroom of an elementary school ... then speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level," the majority ruling read; "We hold, therefore, that Hazelwood's framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools."
Campus speech advocates were predictably and understandably outraged by the Hosty ruling. This excerpt from a policy statement issued by the Foundation for Individual Rights in Education is representative of their concerns:
The U.S. Court of Appeals for the Seventh Circuit's en banc opinion in Hosty v. Carter, No. 01-4155 (7th Cir. June 20, 2005), is a poorly conceived opinion that, if upheld, will do serious harm to freedom of speech on campus far beyond the realm of student media.
The Court ruled that a dean of students who exercised prior restraint over a student newspaper--unequivocally because of its viewpoint--is entitled to immunity from liability. It also decided that the logic of Hazelwood v. Kuhlmeier--an opinion that has been used to drastically curtail the rights of high school students and teachers--applies to the college media. Applying this decision in the college environment drastically reduces the rights of the college media, which have traditionally enjoyed rights more comparable to their counterparts on CNN or in the New York Times than to their counterparts in high school.
While FIRE opposes the holding of Hosty--that a dean of students was entitled to immunity despite engaging in a brazen and intentional act of censorship--the real damage of the Hosty opinion lies in the fact that it blurs the critical distinction established in Supreme Court precedent between funding from mandatory "student fees" and direct payments from the university. The Seventh Circuit's finding in Hosty would open up virtually any student publication or other student group that receives any benefit from the university to the possibility of heavy-handed content-based regulation by university administrators, thus reviving the Supreme Court-settled issue of whether students can be made to pay fees that go to support expressive activities with which they disagree.
FIRE went on the file an amicus brief in October.
The Supreme Court's decision not to hear the Hosty appeal is as inexplicable as it is worrisome. InsideHigherEd.com notes that California State University is already exploring how the ruling may give CSU admins "more latitude than previously believed to censor the content of subsidized student newspapers."
Posted by acta online at February 25, 2006 10:18 AM
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