Death Knell For College Student Speech?

Media Rants

By

Tony Palmeri

from the March 2006 edition of The Valley Scene

I’m dedicating this month’s column to Professor Gloria Link who died on February 23rd at the age of 79. From 1959-1992 Dr. Link taught theatre arts at UW Oshkosh and spent many of those years as Coordinator of the program. Her large lecture “Drama Appreciation” course, enrolling around 200 pupils per semester, inspired thousands of students to become life long lovers of the stage. Gloria remained very active after retirement as a speaker, artist, and engaged citizen. I frequently sought her opinions and was struck by the breadth and depth of her knowledge, especially on matters related to politics and the arts. Always the dramatist, she made me tremble the last time I saw her as she described with a gleam in her eyes and vocal intensity how America during the Bush years was participating in an epic Shakespearean tragedy. She will be missed.

Gloria Link understood that the arts could only thrive in societies that value and protect freedom of expression. As a teacher she encouraged her students to speak out on what they believed in, often motivating them to do so by exposing them to controversial plays that had been produced at great risk to the writer. I know that Gloria would be outraged at the fact that, due to District and Supreme Court actions, students at all levels including universities now have limited First Amendment protections.

Did I just say that students at all levels now have limited First Amendment protections? Yes. In late February the United States Supreme Court refused to hear an appeal of Hosty v. Carter, an Illinois case in which the Seventh District Court of Appeals sided with an administrator at Governors State University (GSU) who claimed a right to censor student publications. The facts of the case are these: In the year 2000 three reporters for The Innovator, the GSU student newspaper, harshly criticized the campus administration. A GSU dean, serving as publisher of the paper, then demanded that she be able to review each future issue before publication. The students sued, claiming a violation of their First Amendment rights, and they won at the District Court level and before a three-judge panel of the Seventh Circuit Court of Appeals. The full Seventh Circuit overturned the prior decisions and their action now stands as law. Wisconsin is one of three states comprising the Seventh Circuit (the others are Illinois and Indiana), so campus administrators can now legally censor college students in our state at public universities.

What is disturbing about Hosty v. Carter is that the Court based its decision on Hazelwood v. Kuhlmeier (1988), a case which gave high school administrators the power to censor student publications. In other words, college students are now the legal equivalent of high school students when in comes to the First Amendment. Hazelwood was concerned with whether school district officials could censor student-authored articles on pregnancy and divorce that dealt with the real lives of students enrolled at the school. The Supreme Court said that school officials could act as censors, arguing that the administration’s claim that the articles were inappropriate for younger readers was a “valid educational reason” for censorship. The majority argued further that "A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate . . . conduct . . . inconsistent with the shared values of a civilized social order, or to . . . associate the school with any position other than neutrality on matters of political controversy." Reasonably be perceived by whom? The judges?

Hazelwood represented a step backward from the 1969 Tinker v. Des Moines standard for student speech rights. Mary Beth Tinker was a 13-year-old junior high school student whose right to wear a black armband to school in protest of the Vietnam War was upheld. Judge Abe Fortas’ majority opinion said, “Teachers and students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Judge William Brennan relied on Tinker in a vigorous dissent in Hazelwood: "The Court opens its analysis in this case by purporting to reaffirm Tinker's time-tested proposition that public school students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' That is an ironic introduction to an opinion that denudes high school students of much of the First Amendment protection that Tinker itself prescribed. Instead of 'teach[ing] children to respect the diversity of ideas that is fundamental to the American system,' and 'that our Constitution is a living reality, not parchment preserved under glass,' the Court today 'teach [es] youth to discount important principles of our government as mere platitudes.' The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today."

Of Hosty v. Carter, the Student Press Law Center says that, “This case isn't just about newspaper censorship. Any school-sponsored student expressive activity (including student-selected speakers, films, theater and student government) could be subject to prior approval and censorship under analysis approved by the Seventh Circuit.”

Gloria Link would fight this madness, and so must we. Go to the Student Press Law Center (www.splc.org) to learn how.

Tony Palmeri (www.tonypalmeri.com) is an associate professor of communication at UW Oshkosh.