In a disappointing development for student press rights, the Tenth Circuit Court of Appeals ruled last week that a First Amendment suit brought by two Kansas State University (KSU) students was moot because the students had graduated while their case was under review. Prior to appeal, the students’ case (Lane v. Simon, Nos. 05-3266 & 05-3284 (10th Cir. 2007)) had been dismissed at the district court level for failure to state a claim upon which relief could be granted. Technically, the Tenth Circuit’s ruling vacates the district court’s dismissal, but effectively reinstates it on mootness grounds.
As the Student Press Law Center (SPLC) notes, by requiring students to be enrolled at the time of their case’s adjudication, the Tenth Circuit’s decision spells trouble for any public university student bringing First Amendment claims against his or her school. SPLC Executive Director Mark Goodman observed that the Tenth Circuit’s ruling has “created a standard for mootness that makes it impossible for virtually any student to make a First Amendment claim because they will graduate before their case is concluded.” Specifically, the court held that “[b]ecause defendants can no longer impinge upon plaintiffs’ exercise of freedom of the press, plaintiffs’ claims for declaratory and injunctive relief are moot.” While there is a legal doctrine that provides an exception to mootness claims when the harm alleged is “capable of repetition, yet evading review,” the Tenth Circuit found the exception inapplicable here because “there is no reasonable expectation that Lane and Rice will be subjected, post-graduation, to censorship by defendants in connection with that newspaper.”
FIRE joined an amicus brief in support of plaintiff students’ case. As such, we are dismayed by the Tenth Circuit’s ruling, particularly the court’s failure to reach the merits of the students’ First Amendment claims. In so doing, the Tenth Circuit has provided would-be administrative censors with a pernicious incentive for delaying punishment based on speech until just before the student speakers graduate—or even just expelling the students outright. The vast majority of potential punishments based on the content of student speech are blatantly unconstitutional; the very limited exceptions being, of course, speech that meets the stringent legal definitions of obscenity, harassment, incitement, or libel. By allowing schools to evade judicial review of their punitive responses to speech simply by timing the application of their punishments until a student’s graduation is imminent, it seems the Tenth Circuit has pointed administrators towards an inviting loophole to the First Amendment that we fear they will be all too eager to exploit.