A Stitch in Haste

SCOTUSblog reports that the Supreme Court may be interested in revisiting its decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which held that elementary and secondary school administrators may "censor" student media (i.e., newspapers), but expressly left open the question of whether that same rule should apply at the post-secondary level. A recent Seventh Circuit Court of Appeals case, Hosty v. Carter, No. 01-4155 (7th Cir, 2005) (PDF - 24 pages), held that it's not that simple and that traditional "designated public forum" analysis may apply. The Supreme Court is now considering whether to hear an appeal by the students.

Perhaps I'm yet again coming dangerously close to losing my libertarian credentials, but I favor the schools in this instance. As much as I love the First Amendment, I love property rights even more, and I see no justification, even when cloaked as "part of the educational mission," to force schools to turn over their property to students to do with as they please. He who owns the printing press writes the editorials — or "censors" them.

Of course, "censors" is the wrong word, since only the government can censor. And a university — even a public university — is not "the government" in this context.

Meanwhile, one wonders whether the Court is expressing interest in this case as a result of the controversial Solomon Amendment case Rumsfeld v. FAIR, No. 03-4433 (3rd Cir., 2004), which also involves First Amendment rights on college campuses and the right of administrators to run their institutions as they see fit.

The key difference, of course, between Rumsfeld v. FAIR and the student newspaper case is where the money is coming from — the school itself or the government? The doctrine of "he who pays the piper calls the tunes" loses some of its punch in the context of taxpayer money used to bully colleges into adopting a facially discriminatory policy that serves no legitimate educational interest (or, for that matter, any legitimate military interest).

And as for distinguishing between colleges and high schools, the determinative difference is of course that high school students could not easily create an independent newspaper with its own funding. College students can and do (e.g., the Cornell Daily Sun, where I was once a weekly op-ed columnist).

Stay tuned...