Court flawed in student paper ruling

October 27, 2005

Sometimes even federal judges make mistakes.

Last week the Foundation for Individual Rights in Education filed an amicus brief in Hosty v. Carter, the recent 7th Circuit Court ruling that allows colleges to censor student newspapers that receive a substantial amount of funding from that college. FIRE’s brief joins two others in support of Margaret Hosty, Jeni Porche and Steven Barba — the three students suing Dean Patricia Carter, alleging a violation of the First Amendment.

The story begins late in 2000, when the Innovator, the student newspaper for Governors State University, published a number of articles critical of the school’s administration. In response, Dean Carter contacted the company that printed it and ordered it not to print the paper without prior approval from a university administrator.

In 2001, the editor in chief, managing editor and a news reporter for the Innovator filed a petition in federal court alleging infringement of their right to free expression by imposing an unconstitutional system of prior restraint.

The court decisions after that are somewhat muddled. The district court ruled in favor of the Innovator’s staff, dismissing the claim that the Supreme Court’s 1988 decision in Hazelwood v. Kuhlmeier — which allows public schools to control the content of student newspapers — could be extended to colleges and universities. A three-judge panel in the 7th Circuit Court of Appeals reaffirmed that decision, but an en banc hearing before the full court found in favor of Dean Carter.

The Innovator staff has filed for review before the Supreme Court. The Court has yet to respond, but most pundits are in agreement that they will ultimately grant certiorari.

The 7th Circuit erred in a number of ways in its Hosty ruling, creating a dangerous precedent and ultimately challenging the bedrock principles that underlie not only student newspapers, but also the freedom enjoyed by campus organizations.

Unlike independent papers such as The Badger Herald, the student-run Innovator received most — if not all — of its funding from Governors State University. Its offices are in university buildings and it consumes university utilities like electricity and phone service. In that the university has a financial stake in the matter, it would seem understandable, even if reprehensible, that the university pulls funding from the paper. A student-run but university-funded paper cannot have its cake and eat it too. At first glance, the 7th Circuit ruling seems reasonable.

But first glances are often wrong, and this case is no exception. What the 7th Circuit failed to realize — as did many people who quickly glanced at the case — was that the Innovator isn’t funded by institutional monies, but rather by an “activity fee” that is collected and distributed by the student government. This clearly puts the Innovator in a different category altogether.

Governors State University collects, as part of enrollment, an activity fee similar to student segregated fees that the University of Wisconsin collects. In a ruling that seems to be popping up all over this campus recently, Board of Regents v. Southworth, the Supreme Court strongly declared that segregated fees do not fall into the typical institutional fee. They are, instead, fees that can only be distributed by students themselves. Student governments such as ASM have become more influential since Southworth because they now have control of funding for student organizations and campus activities.

The student government of Governors State University picks the Innovator’s key staff, such as editor in chief, approves its budget and pays its bills with “activity-fee” money. When Dean Carter called the paper’s printer, she did so with the threat that the printer would not get paid. In doing so, she crossed the line into Southworth. Even if Ms. Carter could get around the distribution of funds issue created by Southworth, she would run headlong into the quagmire of viewpoint-neutrality. Nobody could claim that denying a paper funding because it criticizes the administration is particularly viewpoint-neutral.

If a university administration is able to pull student-fee-based funding for expressing things the university finds objectionable, it spells nothing but trouble for more than just newspapers. Any campus organization that gets a portion of its budget from student fees would be affected. Sex Out Loud, WSUM, Wisconsin Union, LGBT CC, MCSC and many more are funded in part or wholly by student fees.

Hopefully the Supreme Court will rightfully restore decades’ worth of precedent and freedoms, highlighted by rulings such as Southworth, and reverse the lower court ruling. Otherwise, it’s a bad moon rising over student rights.

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Schools: Governors State University University of Wisconsin – Madison Cases: Governors State University: Censorship of Student Newspaper