Issue 99, Fall 2005

In Hosty v. Carter (6/20/05), the 7th Circuit Court of Appeals decided that the framework for analyzing high school students’ press rights established by the Supreme Court in Hazelwood vs. Kuhlmeier (1988) also applies to publicly-subsidized colleges and universities. The ruling, which applies in Illinois, Indiana and Wisconsin, has alarmed First Amendment advocates.

The case arose in 2001 at Governors State University in suburban Chicago. Student editors of The Innovator, Margaret Hosty, Jeni Porche, and Steven Barba, sued the administration after Dean Patricia Carter notified the newspaper’s printer that all copy must be approved by college officials. The Innovator had been critical of the school administration. Carter issued the order despite a policy that gave students the right to "determine content and format of their respective publications without censorship or advance approval."

The 7th Circuit rejected a bright line distinction between high schools and colleges, and between curricular and extra-curricular activities, and held that the proper question instead was what kind of "forum" for expression had been created by the institution. Tellingly, the uncertainty in the analysis led the court to conclude that the Dean was not liable for damages since the law is complicated and she could not have been expected to know that her conduct was unlawful. This may well have been the court’s principal concern.

A petition for review in the Supreme Court was recently filed on behalf of the students. The Court will consider the request later in the fall. For a discussion of Kincaid v. Gibson, a 6th Circuit Court decision that rejected application of Hazelwood in the college and university setting, see CN 81 and 75.