Slogging through the deeply troubling Hosty v. Carter opinion, it is hard to know where to begin criticizing it. In that recent opinion, the Court of Appeals for the Seventh Circuit decided that a 1988 Supreme Court case that dealt with a high school student newspaper that was produced as part of a journalism class—Hazelwood School District v. Kuhlmeier—provided the proper framework for evaluating the rights of non-curricular college and university student newspapers. In doing so, the court decided there was no “bright line” that separated the way the Constitution should treat high school students from the way it treats college students —a rationale that I believe denies legal reality and common sense.
FIRE had joined with a broad coalition of groups to oppose the application of Hazelwood to the college environment, but our amicus, which was praised as “superb” in the previous decision (which refused to apply Hazelwood to colleges) apparently was not as persuasive this time around. We plan to keep fighting and we invite any groups who did not join in the previous amicus to contact FIRE to find out how they can become involved.
While the opinion deserves serious scrutiny from top to bottom for a variety of reasons, what concerns me the most is that it seems to be part of a growing trend that indicates American society may be revaluating whether or not it thinks college students are really adults. Cases like the one at IRCC, where students were forbidden from airing the Passion of the Christ because it is “R”-rated, our recent battle with Seminole Community College, and the rise of paternalistic speech codes all highlight this trend. I recognize that societies do, from time to time, re-evaluate how they define adulthood—once it was more acceptable for 14-year-olds to marry but today, for most Americans (including me), that seems far too young.
Could our society decide tomorrow that adulthood begins at, say, 24? While I would certainly oppose such a move, I suppose we could, but if we care at all about fairness or consistency we could not do so without a radical rethinking of how we order our society. The reasons that we consider college-age students to be distinct from high school students run deep and include not only the differing functions of higher education and high schools in our society, but our moral duties to the young citizens who fight our wars and play a vital role in our democracy. Unless we are willing to re-think 40 years of constitutional law, repeal the 26th amendment, and tell the 40% of our military that is 24 or below that it has to come home, the infantilization of college students must stop.
I am working on a more extensive article analyzing this problem, and would very much appreciate readers’ input on cases they believe demonstrate this trend towards treating college-age students as children.