The STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION and Ellin Mrachek, Angelo M. Daurio, Stephen J. DeJong, Ross Forney, Thomas T. Grimshaw, Richard O. Jones, Gwendolyn A. Thomas, Fred W. Valdez, Jr., Kirk Wagner, Members of The State Board for Community Colleges and Occupational Education; The Pikes Peak Community College Council and Norman Pledger, Betty Diatt, Mildred Guy, Jerry Jones, James Lunghofer, Members of the Pikes Peak Community College Council; The Pikes Peak Community College Student Senate and Jeff Johnson, Carl Davis, Jane Wertz, Pam Shaver, Cheryl Shaver, Cathy Shaver, Fred Skinner, Alvin Wilson, Dee Steinbaugh, Members of the Pikes Peak Community College Senate; and Donald W. McInnis, John Rodwick and Robert Henry, Members of the Administration of Pikes Peak Community College, Petitioners, v. Judith OLSON, Respondent.
No. 82SC271
Supreme Court of Colorado
Aug. 20, 1984
689 P.2d 560
Hobbs/Bethke & Associates, Larry F. Hobbs, P.C., William P. Bethke, Denver, for respondent.
QUINN, Justice.
We granted certiorari to review the decision of the court of appeals in Olson v. State Board for Community Colleges and Occupational Education, 652 P.2d 1087 (Colo.App.1982), in order to consider whether a journalism teacher who also served as faculty advisor to a student newspaper at a community college has standing to raise First Amendment challenges to the termination of funding for the newspaper. The plaintiff-respondent, Judith Olson, along with three student members of the newspaper staff, sought injunctive relief under
I.
During the events in question, which occurred in 1979 and 1980, Judith Olson was a journalism instructor in various courses at Pikes Peak Community College, a two-year college offering unrestricted admissions for high school graduates and stu-
The budget for student activities was funded from mandatory student activity fees. The category of “student activities” included such functions as the student government, the student newspaper, and several student clubs. Funds were allocated for these student activities by the student senate, which acted with the approval of the college administrators. On June 1, 1979, the student senate met to consider proposed budget allocations for the 1979-80 school year. Although $12,456 had been tentatively allocated to the News by the student senate budget committee, the senate at the June 1 meeting voted to cut off all funding for the News. The funding cutoff was apparently prompted by a feeling that the content of the News was not representative of the views of the student body as a whole.2
During the summer of 1979 the student senate offered the News a $5,000 subsidy for the 1979-80 school year. The subsidy was conditioned on $1,000 free advertising for student government, the publication of a limited number of issues, and the drafting of a constitution for the News. The newspaper staff, determining that the proposed subsidy was inadequate to cover operational costs, refused the offer.
Publication of the News ceased with the student senate‘s funding decision of June 1, 1979. However, throughout the 1979-80 academic year students published an alternative publication, the Pikes Peak Fuse (Fuse). The Fuse, a lower cost publication than the News, had a magazine-type format rather than the typeset newspaper format of the News. The Fuse was funded entirely from advertising revenues and $950 from the college‘s operational budget. Olson, who continued in the role as faculty advisor, modified her design class from one of newspaper design to one of magazine design in order to take advantage of the
In August 1979 Olson and three student members of the 1978-79 News staff, Marti Dyer-Allison, Marie Moon, and Vicki Evans, filed a complaint against the State Board for Community Colleges and Occupational Education, the Pikes Peak Community College Council, the Student Senate, the individual members of these bodies, and three college administrators.4 The complaint, which was based on an alleged violation of the federal civil rights statute,
Although Olson‘s complaint was not precisely cast in terms of third party standing, her deposition testimony leaves no doubt that she was asserting the First Amendment rights of students at Pikes Peak Community College. She testified, for example, as follows: that the funding cutoff “had rather severe implications for students as well as the program;” that “if your students are not allowed to have the experience of successfully incorporating their skills development with practical experience simply because of the disagreement of content, that certainly speaks to the First Amendment;” that “I don‘t think I can separate myself and what was done from the students because the program and the publication [were] interrelated [and] I don‘t think they are two separate things;” and that “I am also Plaintiff in this case because I believe in the First Amendment and I believe that cutting off funds is the final act of censorship on the student publication or any publication.” Indeed, the defendants and the district court treated Olson‘s complaint as including not only claims on her own behalf but also a third party claim on behalf of the First Amendment interests of students.5
The district court granted the defendants’ motion for summary judgment on the ground that Olson and the other plaintiffs lacked standing to challenge the funding cut. The court ruled that Olson, as faculty advisor, had no constitutional right to exercise control over the content of the News and no constitutional right to use the News as a teaching tool and, hence, the funding cut did not cause injury to any legally protected interest. Because the funding cut did not abridge Olson‘s constitutional
Olson appealed, but the student plaintiffs did not. The court of appeals reversed the summary judgment against Olson and remanded the case for further proceedings. It held that Olson had standing to challenge the funding cut by reason of an injury in fact to two legally protected interests: (1) her constitutional right to utilize the student newspaper as a chosen teaching method for instruction in newspaper design; and (2) her constitutionally protected “acts of assistance and association with the publication” of the newspaper. Olson, 652 P.2d at 1091. Having resolved this aspect of Olson‘s appeal in her favor, the court of appeals determined that it “need not reach the question of whether she can assert the rights of her students.” Id. We hold that the funding cut implicated no constitutionally protected interest of Olson, but that she should be permitted to assert the First Amendment rights of the nonparty students at Pikes Peak Community College. We therefore reverse the judgment of the court of appeals and remand for further proceedings on that aspect of Olson‘s claim relating to the First Amendment rights of the students.
II.
Our analysis must necessarily begin with an overview of the basic principles of standing relevant to Olson‘s challenge to the governmental action in this case. In essence, the question of standing is really an inquiry into “whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff‘s position a right to judicial relief.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). The proper resolution of this question involves two considerations: (1) whether the plaintiff has suffered actual injury from the challenged governmental action; and (2) whether the injury is to a legally protected or cognizable interest. Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977); accord, e.g., Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982 (Colo.1981); Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980); Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374 (Colo.1980); Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979). The purpose served by this two-pronged test of standing was set forth in Conrad v. City and County of Denver, 656 P.2d 662, 668 (Colo.1983):
“The ‘injury-in-fact’ requirement is dictated by the need to assure that an actual controversy exists so that the matter is a proper one for judicial resolution, for consistent with the separation of powers doctrine embodied in
Article III of the Colorado Constitution , [c]ourts cannot, under the pretense of an actual case, assume powers vested in either the executive or the legislative branches of government.’ [quoting Wimberly, 194 Colo. at 167, 570 P.2d at 538]. The requirement that the interest injured be of a type legally protected by statutory or constitutional provisions is a prudential rule of standing based on judicial self-restraint.”
In determining whether standing has been established, all averments of material fact in a complaint must be accepted as true. Board of County Commissioners v. City of Thornton, 629 P.2d 605 (Colo.1981). Also, it is within the discretion of the court to permit the plaintiff, by affida-
When the plaintiff does establish an actual injury in fact, the court must then determine whether this injury is to a legal interest which entitles the plaintiff to judicial redress. Warth, 422 U.S. at 500, 95 S.Ct. at 2206; Conrad, 656 P.2d at 668. Resolution of this second prong of standing basically rests on a normative judgment that the injury is or is not actionable. The court must determine whether the particular constitutional or statutory provision underlying the claim creates a right or interest in the plaintiff that has been arguably abridged by the challenged governmental action. See, e.g., Warth, 422 U.S. at 499-500, 95 S.Ct. at 2205-2206; Conrad, 656 P.2d at 668; Dodge, 198 Colo. at 382-83, 600 P.2d at 71-72; see also Albert, Justiciability and Theories of Judicial Review: A Remote Relationship, 5 S.Cal.L.Rev. 1139, 1144-54 (1977). A determination that standing exists thus amounts to a holding that the plaintiff has stated a claim for relief by demonstrating the existence of a legal right or interest which has been arguably violated by the action of the defendant. Such determination, of course, is not equivalent to a resolution of the merits of the controversy. E.g., Conrad, 656 P.2d at 668; Cloverleaf Kennel Club, 620 P.2d at 1056; Wimberly, 194 Colo. at 168, 570 P.2d at 539. An adjudication on the merits will often involve both disputed issues of fact and mixed questions of law and fact not resolved by the court‘s ruling on standing. A determination that standing does not exist is equivalent to a holding that the plaintiff has failed to state a claim upon which relief can be granted, because whatever injury the plaintiff might have sustained was not an injury to a legally protected right or interest. E.g., Warth, 422 U.S. at 500-01, 95 S.Ct. at 2205-2206; Cloverleaf Kennel Club, 620 P.2d at 1056-57.
Although as a general rule a plaintiff must assert an infringement to her own legal interest in challenging the constitutionality of governmental action, e.g., Warth, 422 U.S. at 499-501, 95 S.Ct. at 2205-2206; DiLeo v. Board of Regents, 196 Colo. 216, 220-21, 590 P.2d 486, 489 (1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2042, 60 L.Ed.2d 402 (1979); American Metal Climax, Inc. v. Butler, 188 Colo. 116, 119-20, 532 P.2d 951, 953 (1975), a plaintiff who demonstrates an actual injury sufficient to guarantee concrete adverseness may be permitted to assert the rights of third parties not before the court when at least one of the following factors is present: the presence of a substantial relationship between the plaintiff and the third party; the difficulty or improbability of these third parties in asserting an alleged deprivation of their own rights; or the existence of some need to avoid dilution of third party rights in the event standing is not permitted. See, e.g., Carey v. Population Services International, 431 U.S. 678, 683-84, 97 S.Ct. 2010, 2015-2016, 52 L.Ed.2d 675 (1977); Craig v. Boren, 429 U.S. 190, 193-97, 97 S.Ct. 451, 454-456 (1976); Augustin v. Barnes, 626 P.2d 625, 628 (Colo.1981).
In the context of First Amendment claims, prudential limitations on third party standing have been even more relaxed. For example, in Secretary of State of Maryland v. Joseph H. Munson Co., — U.S. —, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984), a professional fund raiser was permitted to challenge the constitutional validity of a state statute on behalf of its customers and other charitable organizations. The statute prohibited a charitable organization, in connection with fund raising activity, from paying or agreeing to pay as expenses more than twenty-five percent of the amount raised. In according the professional fund raiser third party standing to challenge the statute, the United States Supreme Court stated:
“Where practical obstacles prevent a party from asserting rights on behalf of
itself, for example, the Court has recognized the doctrine of jus tertii standing. In such a situation, the Court considers whether the third party has sufficient injury-in-fact to satisfy the Article III case or controversy requirement, and whether, as a prudential matter, the third party can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal. See e.g., Craig v. Boren, 429 U.S. 190, 193-194 [97 S.Ct. 451, 454-455, 50 L.Ed.2d 397] (1976). “Within the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing. Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society‘s interest in having the statute challenged. ‘Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute‘s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’ Broadrick v. Oklahoma, 413 U.S. 601, 612 [93 S.Ct. 2908, 2916, 37 L.Ed.2d 830] (1973).” 104 S.Ct. at 2847.
See also Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980) (“Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.“); Eisenstadt v. Baird, 405 U.S. 438, 445 n. 5, 92 S.Ct. 1029, 1034 n. 5, 31 L.Ed.2d 349 (1972) (“Indeed, in First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech.“).
III.
In considering the application of these general principles of standing to Olson‘s claim for relief, we accept as true Olson‘s assertion of injury in fact—namely, that the student senate‘s funding decision deprived her of the opportunity to use the News as an instructional device for newspaper design and layout and, in addition, eliminated the opportunity to associate with the newspaper staff in her role as faculty advisor. We also point out that this case does not involve the question of penalizing a teacher in a state school for exercising constitutional rights. See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Bertot v. School District No. 1, 522 F.2d 1171 (10th Cir.1975); Durango School District No. 9-R v. Thorpe, 200 Colo. 268, 614 P.2d 880 (1980). Olson makes no claim that the funding decision was made in retaliation for the exercise of her constitutional rights. Her position as teacher was never in jeopardy, nor has she been prohibited or discouraged from acting as faculty advisor to the Fuse or to any other student publication. With these preliminary matters aside, we turn to whether Olson‘s asserted injury in fact was to her own legally protected interests so as to state a claim for relief.
A.
In sustaining Olson‘s complaint, the court of appeals reasoned that the funding cutoff abridged Olson‘s constitutional right to teach protected by the First Amendment to the United States Constitution. We reach a contrary result.
Although the United States Constitution is silent on the right to teach, the specific reference in the First Amendment to the
“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ Shelton v. Tucker, [364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960)]. The classroom is peculiarly the ‘marketplace of ideas.’ The Nation‘s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’ United States v. Associated Press, 52 F.Supp. 362, 372 [(S.D.N.Y.1943)].”
Various courts, in the wake of Keyishian, have recognized that a teacher in a public educational institution has a constitutionally protected First Amendment interest in choosing a particular pedagogical method for presenting the idea-content of a course, as long as the course is part of the official curriculum of the educational institution and the teaching method serves a demonstrable educational purpose. See, e.g., Kingsville Independent School District v. Cooper, 611 F.2d 1109 (5th Cir. 1980) (school district constitutionally prohibited from refusing to renew high school history teacher‘s contract because she engaged students in racial role-playing during history class); Keefe v. Geanakos, 418 F.2d 359 (1st Cir.1969) (injunctive relief granted to prevent discharge of tenured high school English teacher for assigning an article containing vulgar term and for discussing that term in class); Sterzing v. Fort Bend Independent School District, 376 F.Supp. 657 (S.D.Tex.1972) (dismissal of high school civics teacher for classroom discussion of controversial subjects violated First Amendment where teaching method served a demonstrated educational purpose); Webb v. Lake Mills Community School District, 344 F.Supp. 791 (N.D. Iowa 1972) (constitutionally impermissible under First Amendment to discharge high school drama coach in reprisal for use of vulgar term and drinking scenes in play rehearsals when term and scenes had some relevancy to proper teaching of drama and teacher had not previously been advised that such use prohibited); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970) (dismissal of high school teacher for assigning short story containing references to vulgar terms and to an involuntary sex act constituted an abridgement of teacher‘s First Amendment right to academic freedom). These decisions, we believe, proceed from an interpretation of the First Amendment that is consistent with the principle of academic freedom espoused in Keyishian.
We are satisfied that Olson‘s claim on her own behalf, as alleged in her complaint and as supplemented in her deposition testimony, does not demonstrate any injury to her First Amendment right to teach. Her claim basically centers on an alleged entitlement to use a student newspaper as an instructional device in imparting to participating members of the newspaper staff practical skills in newspaper design and layout and in advising them on matters of financing, obscenity, and libel. The publication of the News, however, was not a part of the official curriculum at Pikes Peak Community College. Although characterized by Olson as a cocurricular activity, the News was nonetheless a student activity funded by the student senate and ancillary to the formal educational process at Pikes Peak Community College. While the decision to terminate funding of the News might arguably have implicated the First Amendment expression rights of students, see, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Joyner v. Whiting, 477 F.2d 456 (4th Cir.1973), it did not abridge the constitutionally protected aspect of Olson‘s teaching function. Whether the newspaper is published or not, Olson‘s freedom to choose an appropriate method for classroom presentation of the idea-content of her journalism courses remains unfettered,
Although the full range of the constitutional right to teach is far from settled, we see no basis under existing First Amendment jurisprudence to vest a teacher with an affirmative right to require an educational institution to allocate funds for a particular student activity in order to enhance the pedagogical goals of the teacher, however commendable those goals may be, when the student activity is not part of the official curriculum of the institution, is managed by the students themselves, and the teacher‘s relationship to the activity is advisory only. We therefore hold that under the circumstances of this case Olson‘s right to teach did not encompass a constitutionally protected interest in the publication of the News as an instructional instrument.
B.
Turning now to the second ground relied on by the court of appeals in sustaining Olson‘s complaint—the freedom of association—we conclude that Olson‘s claim did not implicate any associational interest protected by the First Amendment.
Freedom of association is considered to be an element of the broad right to freedom of expression and protects “the right of individuals to associate to further their personal beliefs.” Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972); see also Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). “Association,” in the context of First Amendment doctrine, refers to the medium through which individual members of a group seek to make more effective the expression of their own views. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The right to associate thus recognizes one‘s right to join with others to pursue goals independently protected by the First Amendment, such as literary expression, political change, or religious worship.8 L. Tribe, American Constitutional Law 702-03 (1978). An abridgement of that right occurs when any insufficiently justified governmental action interferes with or discourages a group‘s pursuit of these First Amendment interests. Id. at 703.
Any injury sustained by Olson as a result of the funding cutoff was not an abridgement of her First Amendment right to freedom of association. Olson, as faculty advisor to the News, had no right to censor the student newspaper, nor to require the paper to publish her own views. See Reineke v. Cobb County School District, 484 F.Supp. 1252 (N.D.Ga.1980). To the extent that there might be a constitutional right of association incident to the publication of the News, any such constitutional right would belong to the students and not to Olson in her role as faculty advisor. Nor has Olson demonstrated that her association with the News staff was the medium for her exercise of any other constitutional right independently protected by the First Amendment. Olson‘s claim amounts to no more than an assertion of a personal interest, admittedly important to her, in associating as faculty advisor with members of the News staff. This personal interest, standing alone, does not rise to the level of a constitutional right to require the continuation of the News as the medium through which her interest might be maintained.9 Olson has simply failed to establish that any First Amendment right
C.
Although not addressed by the court of appeals, Olson also argues that, even in the absence of demonstrating any violation of her own constitutional rights, she nonetheless should be accorded standing to challenge the student senate funding decision as it affected the First Amendment rights of students at Pikes Peak Community College. We find merit in her argument.
As noted previously, Olson has asserted and demonstrated that the funding cutoff deprived her of the opportunity to use the News as an instructional device and to associate with the newspaper staff in her role as faculty advisor. Although these privations are not legally cognizable in the sense of abridging Olson‘s First Amendment teaching and associational interests, Olson nonetheless has demonstrated concrete adverseness vis-a-vis the defendants sufficient to assure the effective presentation of the issues underlying the First Amendment interests of the students. The students’ exercise of their First Amendment rights is inextricably bound up with the activity that Olson seeks to prohibit, namely, the funding cutoff for the News. While we are dealing here with an administrative decision rather than an overbreadth challenge to a state statute, as in Secretary of State v. Joseph H. Munson Co., — U.S. —, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984), the effect of the administrative decision on the First Amendment rights of the students is at best only a difference in degree from the prohibitory effect of a statute. Olson has sufficiently demonstrated, at least for the purpose of third party standing, that the administrative decision to terminate funding of the News has a chilling effect on the free speech rights of the students and their related associational activity in exercising those rights through the medium of a student publication funded in whole or in part by the college. Under these circumstances, we believe that Olson should be accorded third party standing to challenge the funding decision on behalf of the students.
In addition to the significant First Amendment interests of the students at issue here, there are several prudential considerations which warrant granting third party standing to Olson. Olson‘s role as faculty advisor to the News gave rise to a substantial relationship between herself and the student members of the News staff. This relationship renders Olson as effective a proponent of the First Amendment rights of students as the students themselves. See Singleton v. Wulff, 428 U.S. 106, 115, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) (plurality opinion); Eisenstadt, 405 U.S. at 445, 92 S.Ct. at 1034; Augustin, 626 P.2d at 628-29. Furthermore, there are real obstacles that confront students interested in asserting constitutional deprivations as a result of the funding cutoff. Pikes Peak Community College is a two-year educational institution, and students have but brief tenure in which to initiate and bring to a conclusion a lawsuit challenging the funding cutoff. As demonstrated by the district court‘s entry of summary judgment against two of the student plaintiffs, graduation poses the risk of mootness. Although this obstacle is not insurmountable, in that matriculating students could be substituted as party plaintiffs, there is little lost in terms of effective advocacy by allowing Olson as teacher and faculty advisor to assert the rights of the students. See Singleton, 428 U.S. at 117-18; Augustin, 626 P.2d at 629. Finally, we cannot ignore the risk of diluting the constitutional interests of students in the event third party standing is not permitted. Enforcement of the funding cutoff could have a material effect on the ability of third party students to exercise their speech and associational rights through the medium of the student newspaper. Providing a judicial forum for the vindication of these constitutional interests prevents their dilution through student sufferance. See Eisenstadt, 405 U.S. at 445-46, 92 S.Ct. at 1034-1035; Augustin, 626 P.2d at 629.
ROVIRA, J., concurs in part and dissents in part and ERICKSON, C.J., joins in the concurrence and dissent. LOHR, J., concurs in part and dissents in part. KIRSHBAUM, J., does not participate.
ROVIRA, Justice, concurring in part and dissenting in part.
I concur in the majority opinion except as to part II C, which holds that Olson has standing to challenge the student senate funding decision as it affected the first amendment rights of students at Pikes Peak Community College.
The majority opinion holds that even though Olson‘s first amendment or associational rights were not violated she has demonstrated that the decision to terminate funding of the school newspaper has a chilling effect on the free speech rights of students and, therefore, she is entitled to assert their first amendment claims. In support of this conclusion, it notes that Olson has demonstrated “concrete adverseness” sufficient to assure effective presentation of the students’ first amendment rights. It then sets out three prudential considerations which warrant giving Olson third party standing: (1) substantial relationship between Olson and the students; (2) obstacles that confront students in asserting their own rights; and (3) possible dilution of student first amendment interests if third party standing is not permitted.
In my view, there were no obstacles which prevented student members of the News staff from asserting their own first amendment rights. Three students were named plaintiffs when the complaint was filed. Even though two of them graduated, the third student continued in school. None of the students appealed the decision of the trial court. Other students could have been substituted as party plaintiffs. If students at the college are concerned about their first amendment rights, they have every right to seek redress in the courts. Under the facts of this case, I do not believe that there would be a dilution of the students’ constitutional rights if third party standing was not permitted. The three “prudential” considerations set out in the majority opinion have not been sufficiently established to warrant granting Olson third party standing to claim the first amendment rights of students.
I am authorized to say that ERICKSON, C.J., joins me in the concurrence and dissent.
LOHR, Justice, concurring in part and dissenting in part.
The majority concludes that respondent Judith Olson, a teacher at Pikes Peak Community College, has not demonstrated that her First Amendment right of academic freedom encompasses the use of the student newspaper, the Pikes Peak News (News), as an instructional device. The court holds, therefore, that Olson has no standing to complain of termination of funding for that newspaper. I respectfully dissent from that holding, based on my disagreement with the application of the law as set forth in the court‘s opinion to the facts of this case. I concur, however, in part II C of the majority opinion, which holds that Olson should be accorded standing to challenge the funding decision as it affected the First Amendment rights of students at Pikes Peak Community College.
In her deposition, Olson described the relationship between the News and the journalism classes that she taught at Pikes Peak Community College. She characterized the News as a “motivational device” for beginning, intermediate and advanced
When the funding for the News was terminated, it was necessary to cease teaching newspaper design classes because, without practical application for the students’ skills, instruction in newspaper design is greatly handicapped.2 In place of newspaper design, Olson taught magazine design, a subject for which the Pikes Peak Fuse is a suitable vehicle. Olson testified, however, that knowledge of newspaper design is far more important to a journalism student than an understanding of magazine layout.
The majority acknowledges that the First Amendment protection of academic freedom encompasses the interests of a teacher in a public educational institution in choosing a particular pedagogical method for presenting the idea content of a course where the teaching method serves a demonstrable educational purpose. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Webb v. Lake Mills Community School District, 344 F.Supp. 791 (N.D.Iowa 1972); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970). The majority limits this right, however, to courses that are part of the official curriculum of the educational institution and characterizes the production and publication of the News as a student activity that is “not a part of the official curriculum at Pikes Peak Community College.” Slip op. at 18. In the context of this case, I think limitation of teaching method protection to exclude utilization of the News as a pedagogical method fails to give full scope to rights guaranteed by the First Amendment. The record shows that the News was financed by mandatory student fees allocated by the student senate and set forth in a budget approved by petitioner Pikes Peak Community College Council. Olson‘s testimony established that publication of the newspaper was a critically important tool for teaching newspaper layout and that the process of preparation of the News had its inception and significant development in her classrooms. Moreover, Olson stated that instruction in newspaper format skills and in the importance of free expression cannot be separated.3 Under these circumstances, I would hold that Olson has made a showing of a legally protected First Amendment interest sufficient
I would affirm the judgment of the court of appeals and remand the case to that court with directions to return the matter to the district court for further proceedings on Olson‘s claim of violation of her First Amendment rights as well as for further proceedings in Olson‘s complaint that the funding cutoff violated the First Amendment rights of the students.
JOSEPH R. QUINN
JUSTICE, SUPREME COURT OF COLORADO
Notes
Q Do you believe your First Amendment rights have been harmed, impaired somehow, chilled by the action of the Student Senate in cutting off the budget to the newspaper?
A Well, as a professional in journalism who must set an example or be a proponent for First Amendment rights, certainly this is the case because if your students are not allowed to have the experience of successfully incorporating their skills development with practical experience simply because of the disagreement of content, that certainly speaks to the First Amendment. Certainly if your content is looked at, say, you know, they won‘t fund it because of a content situation, that certainly is what the First Amendment is all about.
Q Well, specifically as opposed to the students, what First Amendment rights of yours—
A I don‘t think I can separate myself and what was done from the students because the program and the publication was an integral part, interrelated, in other words. I don‘t think they are two separate things.