Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba v. Patricia Carter, and Governors State University

EASTERBROOK, Circuit Judge. Controversy began to swirl when Jeni Porche became editor in chief of the Inno- vator, the student newspaper at Governors University. State None of the articles concerned apostrophe missing from the University’s name. Instead the stu- fare, dents tackled meatier such as its decision not to teaching renew the contract Geoffrey Laforcade, de paper’s fac- ulty adviser.

I After bearing Margaret articles Hosty’s by-line attacked integrity Roger K. † Judge Sykes, joined Circuit who the court the consideration or decision of this case. argument, after participate the oral did not amendment Constitution the first of Arts and College Oden, of the Dean University, as a unit of (applied University’s administration Sciences, the Illinois, through the paper. government state interest take intense began to fourteenth). opinion Although Hazelwood School (Here, II of this and in Part light Kuhlmeier, most in the U.S. 108 well, matters v. 484 we relate District (1988), Both Oden plaintiffs.) the holds that to 98 L.Ed.2d 592 favorable S.Ct. (the University’s Presi- Fagan the may supervise and Stuart and determine faculty dent) Inno- accusing the statements issued the dis- newspaper, a content of student defamatory and irresponsible vator limited to thought that decision trict court the Innovator declined journalism. When by high school students papers published of its view administration’s accept the to to inapplicable and part of course work refused paper the particular, duties—in college stu- by newspapers edited that the admin- factual statements retract activities—and dents as extracurricular false, print or even to istration deemed are so judge added that these distinctions Car- responses administration’s per- —Patricia clearly that no reasonable established Services, Affairs and ter, Dean Student thought could have position son in Carter’s told it and printer Innovator’s called the pull plug herself entitled that she had not any issues print not to interlocutory took an Innovator. Carter advance. approved reviewed qualified claim of pursue her appeal risk willing to take the printer was Pelletier, v. 516 immunity. Behrens See (the paper relies paid not be that it would 116 133 funds), the editorial activity on student (1996). affirmed, 325 A of this court panel prior re- unwilling to submit staff was granted Carter’s and we F.3d ceased November Publication view. rehearing en banc. for petition publi- has since resumed paper 2000. The interlocutory ap- entertaining Porche, WTien management; cation under new who seeks by public official peal Barba, another of Hosty, and Steven thresh- immunity, the qualified de- shelter continued the have paper’s reporters, most light in the is: “Taken University, question all of old court, suing the bate injury, administrators, asserting the to the trustees, party and favorable most of its its [public offi- damages alleged show staff members do the facts several of its § a constitutional violated under 42 U.S.C. conduct cial’s] 194, 201, Katz, right?” Saucier summary judg moved Defendants ment, granted district court and the — also, Haugen, e.g., Brosseau except to all Dean respect motion with 596, 598, U.S.-, 1465621,2001 U.S. Dist. Carter. 2001 WL McCabe, (2004); Newsome (N.D.Ill. 13, 2001); see Nov. LEXIS Cir.2003). Only if the 301, 303-04 (N.D.Ill.2001). F.Supp.2d 782 also 174 court in- does the is affirmative answer because, in the prevailed defendants Some enjoys qualified official whether the quire view, not done they had judge’s district made could be immunity. violation “[I]f (or, indeed, anything at anything wrong parties’ of the view out on a favorable vicarious all, § does not create next, step is to submissions, sequential immu qualified received liability); others clearly estab- ask whether Carter, however, judge nity. As for Saucier, U.S. at lished.” support could thought that the evidence issues address the 2151. We threatening to withdraw conclusion of a the existence specifies: order Saucier support violated financial the Innovator’s in Part II immuni- topics, might range constitutional claim tive which from the ty in Part III. existence of Santa in an elementary Claus setting particulars school of teenage

II activity sexual in a high setting.” 271-72, Id. at Shortly 108 S.Ct. 562. after A passage this dropped Court footnote: provides our starting point. Hazelwood “A number lower federal courts have A high principal school’s blocked the stu- similarly recognized that educators’ deci- (which newspaper dent was financed regard sions with to the content of school- class) journalism funds as of a sponsored newspapers, produc- dramatic principal from articles that the publishing tions, and other expressive activities are thought inappropriate for some of the entitled to substantial deference. needWe younger potential school’s students and a not degree now decide whether the same privacy. invasion of others’ When evaluat- of appropriate respect deference is with ing argument the princi- students’ that the school-sponsored expressive activities at pal had violated their to freedom of college university the and level.” Id. at speech, the Court first asked whether the (citations 273-74 n. 108 S.Ct. 562 omit- paper public was a forum. 484 U.S. at ted). 267-70, 108 giving neg- S.Ct. After ative footnote, answer based on the school’s estab- Picking up on this plaintiffs policy supervising lished the writing argue, held, and and the district court that issue, reviewing the content of each the inapplicable university Hazelwood is Court observed that the newspapers school’s subven- post-secondary and that edu- tion of paper’s distinguished the costs the cators therefore cannot ever insist that situation from one in which students were student newspapers be submitted for re- speaking independently, as in approval. Tinker v. view and Yet this footnote does Des Independent Community Moines not even hint at the possibility of an on/off District, School reviewable, U.S. switch: high papers school col- lege When a school papers not reviewable. It addresses regulates speech for which it pays, degrees also the of deference. Whether some re- held, appropriate Court the question is possible depends view is on the answer to whether the reasonably “actions are relat- public-forum question, which does not legitimate ed to pedagogical concerns.” (automatically) vary speakers’ with the 484 U.S. at “Legiti- age. 108 S.Ct. 562. Only when courts need assess the concerns, stated, mate” the Court include reasonableness the asserted pedagogical setting “high justification standards for the student in nonpublic-forum situations speech that is disseminated under its age aus- does play, come into in way pices may higher that be than suggested by passage quoted we have —standards those newspaper demanded some pub- from Hazelwood’s text. To the extent that producers lishers or theatrical justification the ‘real’ for editorial control de- world—and may [the refuse to pends school] dis- maturity, audience’s the dif- speech seminate student that does not high ference between school addition, (Not meet those standards. may students important. that school must be able to take into account line could be bright; many high school the emotional maturity of the intended au- seniors are college older than some fresh- dience in determining men, junior whether to dissemi- colleges are similar to schools.) nate student speech on potentially many high sensi- To the extent Club, dealt with student News which mat on other Good depends justification ters&emdash;not school, elementary deemed dis- “high in an ensure clubs desire 2093) (533 is at U.S. positive standards auspices” rights school’s] amendment [the under decision about first disseminated “speech (the Having opened its particularly mentioned students. Court written, poorly clubs, ungrammatical, ... and thus creat- is to student premises researched, preju or forum, biased an inadequately public even limited-purpose aed diced, or unsuitable profane, or vulgar or supervise elementary school could audiences”, at meeting immature at a expressed the views censor 562) dissociating goal but also News Club. Good than “any position other from school in a forum private speech If contro political matters of neutrality on when that regulation even off-limits is is 562—there versy”, id. at elementary a classroom of forum school high difference between sharp no Club) (the holding of Good News papers. forum, and non-public at a then estab Supreme Court itself may be public expense, underwritten public- age does not control lished at the regulation even open to reasonable Symposi question. generally See forum Sullivan, later, as Rust v. college level—or First the Same Do Children Have um: 1759, 173, 111 114 L.Ed.2d S.Ct. 500 U.S. Adults?, 79 Chi. Rights As Amendment fed by holding that the shows 233 (2004) many (including 3-313 L.Rev. Kent may physicians that government insist eral discussing these de collecting and articles only speech for the kind of funds grant use cisions). only from much is clear not So authority. Cf. by granting the required Tinker, that which held such as decisions Arts v. Fin Endowment the National of non- students have for public school 2168, 569, 141 S.Ct. ley, 524 U.S. 118 on school disruptive personal expression therefore, (1998). hold, L.Ed.2d 500 We con the decisions also from premises, but applies Hazelwood’s framework that prem funds and use of cerning the colleges newspapers student subsidized See, e.g., expression. religious ises secondary elementary and well as as Union Moriches Chapel Center Lamb’s Axson-Flynn John District, 384, See also 113 schools. 508 U.S. Free School (10th Cir.2004) (Hazel- (1993); son, 1277 F.3d 2141, 124 Rosen 356 for evaluat the supplies the Uni framework v. Rector and Visitors wood berger 819, regulation 115 S.Ct. allows speech and versity Virginia, ing collegiate (1995); News curric 700 Good speech 132 L.Ed.2d the is connected when School, Aronov, F.2d 1066 ulum); Central Bishop v. Club Milford (2001). Cir.1991) (.Hazelwood (11th the supplies Community Hedges v. Wauconda also evaluating collegiate framework for 118, F.3d 1295 School District No. might Unit readers regulation when and allows Cir.1993). hold These decisions approval). the school’s infer school, any level-&emdash;primary, public no dis post-secondary&emdash;may

secondary, or B in a against religious criminate re- therefore question Hazelwood’s first made classrooms forum public (including was as well: principal question our activities), mains or to extracurricular available public in a forum speaker reporter the be available funding would withhold allowed?) (no the Univer- censorship or did views. espousing sectarian groups sity non-public either create a forum University Southworth, or Wisconsin v. (a publish paper itself closed forum 529 U.S. may supervised)? (2000); content Bar, where Plain- L.Ed.2d 193 Keller v. State contend, agreed, tiffs and the district court (1990). public Court found a forum miss- That institutions can

ing in Hazelwood the paper speak only because through agents does not allow journalism was as prepared agents to assume control and insist contrast, By curriculum. the Innovator graded submissions appear D-minus activity, extracurricular and thus under University’s masthead. Live- beyond control, all the district court con- stock Marketing Ass’n dispelled all cluded. Yet if the Constitution establishes doubt on that score. a bright line between curricular activities away Now take the course credit and speech, and other all then such decisions assume that the alumni magazine hires Finley inexplicable, Rust stringers students as pays by they speakers hold that complet- who have word for accepted articles printed. ed their education still must abide University would remain the operator conditions attached to subsidies of of this non-public forum pick and could speech and expressive other activities. among submissions, choose from Post, See also Robert C. Subsidized printing only those that expressed best

Speech, 106 Yale L.J. 151 University’s viewpoint. own al- Thus

Suppose University had given though, Hazelwood, inas being part of the $10,000 publish Innovator a semester’s may curriculum abe condition of sufficient worth of newspapers, and forum, Porche then had a non-public it is not a necessary that get decided the students would more condition. Extracurricular may activities benefit from a describing booklet campus forum, be any public outside as alum- our life and cultural activities the ni-magazine surround- example demonstrates, with- ing neighborhoods. paper Both and book- falling out also outside all gover- let speech, are forms of but fact the nance. Let us not forget that academic publication the was not of the Univer- freedom authority includes the of the uni- sity’s curriculum and carry did versity not aca- to manage an academic community demic credit would not have allowed and teaching evaluate and scholarship free Porche money to divert the from one kind from by interference govern- other units of to the other. ment, including the courts. See Universi- EEOC, ty Pennsylvania suppose Or publication that the in ques- (1990); 107 L.Ed.2d 571 tion one University’s under the direct University Michigan v. Ewing, 474 U.S. management say, its magazine. alumni — (1985); 88 L.Ed.2d 523 If University the offered course credit to Southworth, 237-39, 529 U.S. at journalism prepared students who pub- (Souter, J., concurring). puff piece, lishable the to control would be evident. University, The after C all, is the alumni magazine’s publisher; the contents are its speech; What, then, units state and was the status of the Inno- local government are entitled speak to vator? University Did the establish a themselves. See Johanns public v. Livestock hedge forum? Or did it funding the —Ass’n, Marketing U.S.-, 125 S.Ct. with controls left the University itself — - (2005); newspaper’s as the publisher? If pa- the way, In the same religious speech. forum, forbid the Uni- in a public operated per pages of the may a school declare its contents. not vet versity could expression Conrad, newspaper open Promotions, student Ltd. Southeastern engaging itself from thus disable 448 and while or content discrimination viewpoint publi- student if underwritten But operates forum on University are the terms which at Governors State cations did not unaltered. Dean Carter remain forum, impor- then it becomes non-public alter the terms on purport to which legitimate had Dean Carter tant whether authority be- operated; Innovator do for her We action. reasons pedagogical to the Student Communications longed on record possible this think it not by down the rules laid Media Board. And the Univer- kind of forum what determine Board, could though ambiguous, Dean Carter’s or evaluate sity established (when favorably to as thought considered posed by question But the justifications. allows) create a the record end, plaintiffs but not who wins Saueier designated public forum. a consti- makes out the evidence whether most light when taken tutional claim Board is Defendants concede facts These plaintiff. favorable the Innovator and other publisher fact to trier of a reasonable permit would media. print and broadcast subsidized in a operated Innovator conclude that members, all chosen Board has The seven beyond the and thus forum students, four two by Student Senate: University’s administration. of the control members, or one “civil service faculty university.” of the employee unit support participate did not The Innovator many publica- how Board determines The Freedom of public forum. in a traditional (subject tions will underwrite else that someone imply not speech does funds, which as South- availability of hand University does must The pay. Rosenberger come from worth .But asks. everyone who money out fees), character general and the activities newspa establishing a subsidized student period “for the of one It appoints of each. created a University may have per media the head of each student year, “designated by the name that goes venue is that each policy Board’s staff.” “limited-purpose public or public forum” content determine publication “will funded v. American States forum”. See United censorship or ad- ... format without and Association, Library U.S. all is to If this is there approval”. vance (2003); 2297, 156 United posi- it, is same then the Innovator Kokinda, 110 S.Ct. U.S. States in speakers Southworth as the tion student (1990); Perry Edu L.Ed.2d 571 public fo- Rosenberger; designated and Educ Local Perry cation Association established, faculty and the rum has been Association, 37, 103 S.Ct. ators’ within it. When speech censor cannot (1983). Participants light favorable matters in the most viewing forum, open declared such here, students, stop because we ante, post when may not be censored ex ex cloudy. matters other particular that sponsor decides to cast potential things Two have used The classrooms is unwelcome. if a trial were light in a different desig matters News Club meetings Good charter that the Board’s to occur. One is forums, and because public nated to the Di- “responsible that it is provides group to use any student school allowed the Di- Perhaps Life.” rector of Student it could not held that space the Court (who rector of Life appears Student to be that the Innovator operated such a fo- subordinates) one of Dean Carter’s rum is a question different altogether. established criteria for subsidized student any district court held that reason- publications. record, None is in the how- able administrator should have ever, possibility so this does not matter. (a) known that approach of Hazelwood The other is each publication that funded (b) apply does not to colleges; only faculty has a parties adviser. The dis- speech that of the curriculum is agree not about who the adviser was subject supervision. have that held We at the critical time (plaintiffs that say de propositions neither these is correct— Laforcade remained their adviser even af- that Hazelwood’s generally framework is University’s ter he left the faculty; Carter applicable depends large measure insists that a person different filled that operation public-forum analysis position) but also about whether the advis- rather than the distinction between curri- just view) er (plaintiffs’ offers advice or cular and extracurricular activities. (Carter’s view). exercises control some But even if newspapers student high at Because the district court acted on a mo- schools colleges operate under differ- (as summary tion for judgment, it assumed ent frameworks, constitutional as both the we) do that plaintiffs’ perspective is the district judge and our panel thought, correct one. that understanding, On greatly overstates the certainty of the law Board established the Innovator in a des- say reasonable adminis- ignated forum, where the editors trator had to know that ques- rule. The were empowered to make their own deci- Hazelwood, tion had been reserved in sions, foolish, wise or without fear the Supreme Court does not identify for stop presses. administration would future questions decision already have “clearly established” answers. Wilson

Ill v. Layne, Qualified immunity nonetheless 143 L.Ed.2d 818 Post-Hazel- protects personal Dean Carter from liabili wood decisions likewise “clearly had not ty unless it should have been “clear to a that college established” administrators [public reasonable official] his conduct keep must hands off all newspa- was unlawful in the situation he pers. confront II.A, As we mentioned in Part Saucier, ed.” tenth and eleventh have circuits used Ha- inquiry, note, “This it is vital to zelwood as the framework for evaluating must be light undertaken in specific of the of colleges acts high well as schools. case, context of the general as broad One circuit has said otherwise. See Stu- proposition”. Id. at 121 S.Ct. 2151. dent Government Ass’n University also, e.g., See Layne, Wilson v. Massachusetts, (1st 473, U.S. 868 F.2d 480 n. 6 1692, Cir.1989) 143 L.Ed.2d (asserting, in sole reliance on (1999); Anderson v. Creighton, 483 Hazelwood’s footnote Supreme that the L.Ed.2d 523 Court itself “holds” that ap- Hazelwood’s (1987); Kmetko, Greenberg v. 840 F.2d 467 proach apply does not post-secondary to (7th Cir.1988) (en banc). education). might One well approach The of others is say as a general proposition” “broad classify. some hard Gibson, to See Kincaid v. thing “public like may Cir.2001) officials (en not censor 346 n. 5 speech in a designated forum,” banc) but (stating, in parties’ reliance on the whether Dean Carter was bound to agreement, know ap- Hazelwood has “little apt as description That is at 599. not S.Ct. publications but collegiate to plication” it in Brosseau. means, a con- here as or how this what explaining “just a apply can framework stitutional predict, need not Public officials little”). spoken had not This circuit un how constitutional peril, their financial which opinion, panel’s subject until our Disputes will be resolved. certainties actions. Dean Carter’s post-dated inappro fact law and make about both to respect the law with of Many aspects in person say reasonable priate to age, role of speech, students’ in November position Dean Carter’s apply, understand are difficult for review that the demand had to know County Vigo Baxter we remarked the Inno University pay would before (7th Cir.1994), F.3d 728 Corp., 26 School the first bills violated printing vator’s enti- administrators holding school when is entitled She therefore amendment. banning for immunity qualified tled to immunity liability dam from qualified T-shirts that message-bearing certain ages. claimed pupils elementary-school also, e.g., under Tinker. protected Reversed. (9th Cir.2002), Li, F.3d 939 Brown appellate the members in which EVANS, Judge, T. Circuit TERENCE incom- three distinct articulated panel ROVNER, by DIAMOND joined ILANA Hazelwood whether views about patible WILLIAMS, Judges, WOOD, and Circuit settings and how collegiate applies to dissenting. between affects relations amendment first that Hazelwood extends concluding In expression. students’ faculty and applies majority university setting, have elected who Neither plaintiffs, Supreme on limitations who se, curiae nor the amici appear pro cir- narrow created use Court in this position their ably supported have secondary elementary cumstances owes court, Dean Carter contend on Because these restrictions education. if Hazelwood purse damages from own her place have no speech rights free legal frame appropriate establishes school, I graduate world by now be that should work. For reasons dissent. respectfully Hazelwood evident, implementation from an majority’s conclusion flows uncer legal and factual that both means legal no there is premise&emdash;that incorrect it is the litigation&emdash;and dog tainties high school college and between distinction immunity to ensure qualified function however, reality, “[t]he by students. are resolved that such uncertainties the status recognized that long has Court rather than financial prospective relief many unique the law is minors under “Quali of employees. from public exactions Baird, Bellotti respects.” suit immunity an official from shields fied that, if even a decision makes when she very good grade level deficient, reasonably Age, mis which

constitutionally legal rights. indicator,1 always has defined the circum governing the law apprehends Brosseau, noted: 125 As the Court she confronted.” stances (CPS) Bureau, Survey Population Bureau Current According U.S. Census 1. A-6, College "Age of Rep., Distribution Ameri- Table percent of those enrolled in about one Over, by Sex: years 14 Old Students colleges in universities 2002 can to 2002.” October 1947 age U.S. Census 18. See 2002 under the of 740 rights

Constitutional do not respective mature institutions are different. being magically only and come into These differences make it clear that Ha- when one attains the age state-defined zelwood apply beyond does not high school Minors, majority. adults, of as well as contact. protected by are the Constitution and It that, is self-evident as a general mat possess rights. constitutional The Court ter, juveniles are less mature than adults.

indeed, however, long recognized Indeed, “during the years formative of the State has somewhat broader adolescence, childhood and minors often authority regulate the activities of lack experience, perspective, judg than children of adults. recognize ment to and avoid choices Missouri, Planned Parenthood v. Dan of Bellotti, could be detrimental to them.” 52, forth, 74, 2831, 428 U.S. 96 S.Ct. 49 635, 443 U.S. at 99 S.Ct. 3035. also See (1976) (internal L.Ed.2d citations omit York, Ginsberg v. New 629, 390 U.S. 649- ted). 50, 1274, (1968) 88 S.Ct. 20 L.Ed.2d 195 principle This is clear respect with (Stewart, J., (footnote omitted) concurring) speech free rights, where the Court has (“[A]t in precisely least some delineated delineated a consistent high- line between areas, a child—like someone in a captive school-age students and those at the uni- possessed audience—is not of that full ca versity level. As the Court noted Board pacity for individual choice which is the Regents the University Wisconsin presupposition of First Amendment guar System Southworth, v. 217, 529 U.S. 238 n. antees.”). It is this reasoning that dictat 4, 1346, 120 S.Ct. (2000), 146 L.Ed.2d 193 ed the results Hazelwood and Bethel “the of teaching institutions to limit School District No. expressive freedom Fraser. of students been ha[s] Hazelwood, the Court high emphasized confined to schools whose that a students and their different schools’ relation First to them Amendment ap are standard is different propriate and at least arguably distinguish- high school setting because able from counterparts their ed- those young, students are emotionally im (Internal omitted.) ucation.” mature, citations likely and more to be inappropri James, Healy 169,180, also ately influenced school-sponsored (1972) 33 L.Ed.2d 266 speech on controversial topics. Hazel (“[T]he precedents of this Court leave no wood, 484 U.S. at 108 S.Ct. It that, for the room view because of the was, therefore, reasonable pub to restrict acknowledged order, need for First lication anof article teenage about preg protections Amendment apply should with nancy. Bethel School District No. less force on campuses than in the Fraser, community large.”). where the per Court a high mitted school to sanction

There are two why reasons the law high making treats school lewd student differently students council than election speech, college students, “are, treats point. makes similar Court who course, adults,” Vincent, emphasized young Widmar v. “[t]he could well 274 n. seriously damaging to its less mature (1981): high - 683-84, students audience” Id. at are less mature and the added).2 missions of the 3159 (emphasis The same con- 2. Other decisions of the Court permitted outside free rights restrictions emphasize arena likewise greater juveniles they because are less mature. For

741 simply apply college exposure cerns do not stu- wide to that exchange robust of (as dents, ”). certainly general who are mat- .... ideas See also Regents Bd. of ter) mature, Southworth, independent more 217, 231, thinkers. 529 U.S. 120 S.Ct. Richardson, 672, 686, 1346, (2000) Tilton v. 403 U.S. 91 146 L.Ed.2d 193 (“[Recogni 2091, (1971), 29 L.Ed.2d S.Ct. estab- tion must given as impor well to the point. upheld lishes this The Court a fed- tant and substantial purposes of the Uni provided funding eral law that versity, to church- which seeks to facilitate a wide colleges related and range universities for con- of speech.”); Rosenberger v. Rector struction of Va., facilities for secular education- 819, and Visitors Univ. 515 U.S. of of al purposes. 836, The Court noted that precol- 2510, 115 S.Ct. 132 L.Ed.2d 700 (1995) lege may students not have maturity (noting that curiosity intellectual of make them religion; own decisions on how- today students remains a central determi ever, “college impression- students are less university’s nation of a success and assert and susceptible religious able less ing indoc- curiosity restriction of that “risks trinations.” suppression of free and crea tive in inquiry one of the vital centers Not is there a distinction between life, Nation’s intellectual college its college high school students them campuses”); Regents of selves, the missions of the two institutions Bakke, 265, 312, Univ. Cal. v. 438 U.S. of quite different. Elementary and sec 2733, (1978) (not 98 S.Ct. 57 L.Ed.2d 750 ondary schools have “custodial and tute “ ing that an atmosphere of ‘speculation, lary children,” responsibility for Bd. of ” experiment creation’ is “essential to Earls, Indep. Educ. Sch. Dist. No. 92 v. of quality higher (quoting education” 2559, 536 U.S. 122 S.Ct. Sweezy 234, v. New Hampshire, 354 U.S. (2002) (holding L.Ed.2d 735 that “Fourth 263, 1203, (1957) S.Ct. L.Ed.2d 1311 ... rights Amendment are different (Frankfurter, J., Widmar, concurring))); elsewhere”), public schools than and are 454 U.S. at n. 267-68 102 S.Ct. 269 largely concerned with the “inculcation” of (“The college classroom with its surround Fraser, “values.” 478 U.S. at ing peculiarly environs is the ‘marketplace 3159; Norwick, see also Ambach v. ”). of ideas.’ 68, 76, 441 U.S. 60 L.Ed.2d (1979) (“The Supreme As the perhaps Court best ar- importance of public in Healy ticulated v. James. preparation schools in the of individuals citizens, participation and in the precedents of [T]he this Court leave no preservation of the that, values on which our room for the view because of the rests, society long recognized by order, has been acknowledged need for First decisions[J”). our A university has a dif protections Amendment apply should purpose ferent expose students to a with less force on campuses than —to “marketplace Keyishian of ideas.” community Quite v. Bd. large. N.Y., Regents contrary, Univ. vigilant protection “[t]he 589, 603, constitutional freedoms is nowhere more (1967) (emphasizing the “Nation’s fu vital community than of American depends upon ture through leaders trained schools.” The classroom with its Weisman, example, Lee v. pressure from subtle coercive elementa- ry secondary public schools.” Id. at heightened Court noted that “there are con- 112 S.Ct. 2649. protecting cerns with freedom of conscience 742 on New restrictions printed. the was peculiarly is

surrounding environs ” “ of basic First run more afoul to ideas,’ and break seem we ‘marketplace First, restraints prior values. affirm- Amendment ground in no new constitutional under the Consti- noxious particularly to safe- dedication ing this Nation’s v. Press Ass’n Nebraska tution. academic freedom. guarding 2791, Stuart, 539, 559, 49 96 S.Ct. 427 U.S. 2338, 180-81, 169, 33 92 S.Ct. 408 U.S. (1976) restraints on (“prior L.Ed.2d 683 (1972) (quoting Shelton L.Ed.2d 266 the most seri- publication are speech and 247, 479, 487, Tucker, 5 81 364 U.S. infringement on the least tolerable ous and (1960), Keyishian, Near rights”); First Amendment 675). 603, on this Based Minnesota, notion, it is I do not believe important (1931) (“it general- has been 75 L.Ed. 1357 Hazel- this court to extend appropriate for it is universally, considered that if ly, not setting. wood to Amend- purpose [First chief furthermore, holding, majority’s prevent to press] guaranty free ment’s considering the unfortunate particularly publication”). upon restraints previous used in which Hazelwood been manner fundamental, as Second, and even more setting to restrict con high school (albeit in some- Frankfurter stated Justice See, Planned Par e.g., speech. troversial Baumgartner v. language) in what dated Dist., 941 County Sch. enthood v. Clark States, United Cir.1991) (9th that the (holding F.2d 817 “one of L.Ed. 1525 justification refusing to school district’s citizenship is prerogatives of American family planning advertisements publish public men and mea- to criticize newspapers was high school reasonable voting-age citi- College sures.” students — standard); Baxter v. Hazelwood under the potential future leaders —should zens and Corp., 26 F.3d 737- Vigo County Sch. criti- challenge, and question, feel free to (7th Cir.1994) (upholding the decision Nevertheless, as action. government cize prohib elementary principal who school today’s holding, Dean Carter a result wearing shirts with a from ited student censored the Innovator could have messages such as “Unfair Grades” pedagogi- establishing merely “legitimate “Racism”); Murphy, 872 F.2d Poling v. gives the This court now cal reasons.” (6th Cir.1989) the deci (upholding to re- to school administrators green light to high a school administration sion of inconsis- speech in manner strict student council from a student exclude tent with the First Amendment. a rude comment made race because he principal about assistant majority’s Finally, disagree I with assembly). at a delivered school is entitled that Dean Carter conclusion Hazelwood, true, immunity. Prior to qualified this allegations are plaintiffs’ If the consistently that univer clear Innova- courts were this concern. The epitomizes case require prior tor, sity could writing merely about administrators opposed cen media or otherwise publish review of student actually chose games, football See, e.g., Stanley newspapers. articles sor student hard-hitting stories. And these (8th Cir.1983); 719 F.2d 279 v. Magrath, critical the school administration. Williams, Cir. 519 F.2d applauding than response, rather Schiff v. 1975); Joyner Whiting, University decided journalists, young Fortune, (4th Cir.1973); Bazaar v. offi- 460 publication unless prohibit (5th Cir.1973), adopted en banc it F.2d content before paper’s cial reviewed the (5th Cir.1973); Trujillo in 489 F.2d 225 v. Id. at 346 n. 5. In noting, so the court Love, (D.Colo.1971); F.Supp. An university’s yearbook ruled that the consti- Hammond, v. 308 F.Supp. tonelli a tuted limited forum in which con- (D.Mass.1970); Dickey v. Alabama St. Bd. regulations subject tent-based to Educ., (M.D.Ala.1967), F.Supp. scrutiny. strict The court then held that of vacated as moot nom. Troy sub St. Univ. the administration’s decision to confiscate (5th Cir.1968); Dickey, 402 F.2d 515 yearbook, unhappiness due to over its Birenbaum, Panarella v. 32 N.Y.2d content, violated the First Amendment. (N.Y. 343 N.Y.S.2d 296 N.E.2d 238 The decisions the majority cites in sup 1973); State, Mazart v. 109 Misc.2d port moreover, position, its inappli (N.Y.Ct.Cl.1981); 441 N.Y.S.2d 600 Milli Aronov, cable. Bishop 926 F.2d 1066 Turner, (La.Ct.App. ner v. 436 So.2d 1300 (11th Cir.1991), Axson-Flynn v. John 1983). son, (10th Cir.2004), 356 F.3d 1277 both change Hazelwood did not this well-es- concerned free rights within the So, becomes, question tablished rule. Bishop classroom. held that a university anything did after Hazelwood occur that professor could a stop order to interjecting suggest would to a person reasonable personal his religious beliefs into his class position Dean Carter’s that she could pro- during comments instruction time. Ax- publication simply hibit because she did son-Flynn held that an acting student at a not publishing?3 like the articles university could required say script to fact, clearly The “no.” answer is In fines that conflict with her Mormon faith cases, including review of the those part of the curriculum. very These are on, majority relies establishes that no case different speech rights situations than free any law would have led reasonable official journalists of student engaged in an extra in Dean position Carter’s to believe she Indeed, activity. curricular the Tenth Cir had such power. cuit recognized such a distinction and ex plicitly holding: limited its “We hold that begin,

To (explic both the First Circuit applicable Hazelwood framework is itly) (implicitly) and Sixth Circuit are of university setting that occurs apply view Hazelwood does not in a part classroom as of a class curricu university In setting. Student Gov specifically noted, lum.” Id. at 1289. It ernment Association v. Board Trustees acknowledge that Massachusetts, “We some circuits have University (1st cast Cir.1989), application doubt on the of Hazelwood F.2d 480 n. 6 the First the context of Circuit held that Hazelwood extracurricular appli “is not However, activities. because college newspapers.” cable In Kincaid Axson- (6th Gibson, Cir.2001) (en Flynn’s speech 236 F.3d 342 occurred as of a curri banc), dispute involving assignment cular college year during class time and in book, classroom, the court determined that Hazel- we need not reach anal application” tuood had “little ysis university’s the case. extracurricu- students’ Considering off,” clearly college keep that the law was estab- administrators "must hands lished that administrators could not any- but rather whether later decisions did newspapers, majority control thing change already clearly estab- wrongly post-Hazel- focuses on fact words, lished rule. did other decisions "clearly wood decisions had not established say anything suggest after Hazelwood keep administrators must hands college administrators could censor school newspapers.” question off all student The newspapers. later whether decisions established that Indeed, policy its own stated editors. (emphasis dent at 1286 n. 6 Id. speech.” lar omitted). added) (internal Final- determine con- staff “will citations that the student the relevance to see hard-pressed respective publica- I am of their ly, tent and format Board, County School Dickson ap- of Settle v. censorship or advance without tions Cir.1995). That case independent The Innovator is proval.” challenged who grader a ninth concerned published organized publication accept a re- not to teacher’s decision her publica- on their own time. students unap- it on an paper because search program, an academic tion is Kincaid, not Regardless, topic. proved activity. an extracurricular rather but Settle, defin- the Sixth Circuit’s constitutes advisor, but provided The students on the issue.4 itive word mem- taught by faculty a it is not a class court, Therefore, considering that no make ber, advisor did not and the Hazelwood, has held after before or both decisions, offered. only advice was content may censor a student facts, per- a reasonable Considering these only authorities to newspaper, and would have in Dean Carter’s shoes son directly on are not suggest otherwise pub- operated the Innovator as believed “clearly estab- that was point, I believe lic forum. deny University could not that the lished” conclusion, I that Ha- because believe newspaper it found to the school funding apply, pedagogical does not no zelwood objectionable. justify suppressing can the stu- concerns that Dean Car majority also states violated speech here. Dean Carter dent immunity be qualified entitled to ter is law clearly First Amendment established in Dean Car person “A reasonable cause I censoring newspaper. the student recognize position was not bound ter’s judgment of the district would affirm the designat in a operated the Innovator court. objective Although an public forum.” ed that, standard, noteworthy I it is believe noted, “Defendants con

the district court Innovator serves as

cede that the (N.D.Ill. F.Supp.2d

forum.”

2001). facts, accepting all A review of the complaint allegations

well-pleaded infer drawing all reasonable

as true plaintiff, support in favor of the

ences strategy below. litigation

Dean Carter’s University, by express State

Governors exclusive edito practice, placed

policy with the stu- newspaper

rial control of the moreover, not, ber, only applied majoritywisely does as Dean Car 4. The Hazelwood does, included of a student's masters thesis rely Circuit’s decision context on the Ninth ter Brown, Li, (2002), 308 F.3d curriculum. cert. in the school’s 308 F.3d 939 in Brown denied, Again, very than different situation at 949. Kincaid, presented here. As the decision of a the one Kincaid, already panel been vacated decision had Circuit in panel of the Sixth Brown, circuit when Dean Carter restrained respect one the full With Graber, See 197 F.3d at Judge approved publication of the Innovator. judge panel, Cir.1999) decision). (vacating panel Judge Gra- application of of the Hazelwood.

Case Details

Case Name: Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba v. Patricia Carter, and Governors State University

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 20, 2005

Citation: 412 F.3d 731

Docket Number: 01-4155

Court Abbreviation: 7th Cir.