Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba v. Patricia Carter, and Governors State University

412 F.3d 731, 33 Media L. Rep. (BNA) 1897, 2005 U.S. App. LEXIS 11761, 2005 WL 1423263

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 20, 2005
• Docket: 01-4155
• Status: Published

Opinions

EASTERBROOK, Circuit Judge.

Controversy began to swirl when Jeni Porche became editor in chief of the Innovator, the student newspaper at Governors State University. None of the articles concerned the apostrophe missing from the University’s name. Instead the students tackled meatier fare, such as its decision not to renew the teaching contract of Geoffrey de Laforcade, the paper’s faculty adviser.

I

After articles bearing Margaret Hosty’s by-line attacked the integrity of Roger K. Oden, Dean of the College of Arts and Sciences, the University’s administration began to take intense interest in the paper. (Here, and in Part II of this opinion as well, we relate matters in the light most favorable to the plaintiffs.) Both Oden and Stuart Fagan (the University’s President) issued statements accusing the Innovator of irresponsible and defamatory journalism. When the Innovator declined to accept the administration’s view of its duties — in particular, the paper refused to retract factual statements that the administration deemed false, or even to print the administration’s responses — Patricia Carter, Dean of Student Affairs and Services, called the Innovator’s printer and told it not to print any issues that she had not reviewed and approved in advance. The printer was not willing to take the risk that it would not be paid (the paper relies on student activity funds), and the editorial staff was unwilling to submit to prior review. Publication ceased in November 2000. The paper has since resumed publication under new management; Porche, Hosty, and Steven Barba, another of the paper’s reporters, have continued the debate in court, suing the University, all of its trustees, most of its administrators, and several of its staff members for damages under 42 U.S.C. § 1983.

Defendants moved for summary judgment, and the district court granted the motion with respect to all except Dean Carter. 2001 WL 1465621, 2001 U.S. Dist. LEXIS 18873 (N.D.Ill. Nov. 13, 2001); see also 174 F.Supp.2d 782 (N.D.Ill.2001). Some defendants prevailed because, in the district judge’s view, they had not done anything wrong (or, indeed, anything at all, and § 1983 does not create vicarious liability); others received qualified immunity. As for Carter, however, the judge thought that the evidence could support a conclusion that threatening to withdraw the Innovator’s financial support violated the first amendment to the Constitution (applied to the University, as a unit of state government in Illinois, through the fourteenth). Although Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), holds that faculty may supervise and determine the content of a student newspaper, the district court thought that decision limited to papers published by high school students as part of course work and inapplicable to student newspapers edited by college students as extracurricular activities — and the judge added that these distinctions are so clearly established that no reasonable person in Carter’s position could have thought herself entitled to pull the plug on the Innovator. Carter took an interlocutory appeal to pursue her claim of qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). A panel of this court affirmed, 325 F.3d 945 (2003), and we granted Carter’s petition for rehearing en banc.

WTien entertaining an interlocutory appeal by a public official who seeks the shelter of qualified immunity, the threshold question is: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [public official’s] conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). See also, e.g., Brosseau v. Haugen, — U.S.-, 125 S.Ct. 596, 598, 160 L.Ed.2d 583 (2004); Newsome v. McCabe, 319 F.3d 301, 303-04 (7th Cir.2003). Only if the answer is affirmative does the court inquire whether the official enjoys qualified immunity. “[I]f a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. We address the issues in the order Saucier specifies: the existence of a constitutional claim in Part II and immunity in Part III.

II

A

Hazelwood provides our starting point. A high school’s principal blocked the student newspaper (which was financed by public funds as part of a journalism class) from publishing articles that the principal thought inappropriate for some of the school’s younger students and a potential invasion of others’ privacy. When evaluating the students’ argument that the principal had violated their right to freedom of speech, the Court first asked whether the paper was a public forum. 484 U.S. at 267-70, 108 S.Ct. 562. After giving a negative answer based on the school’s established policy of supervising the writing and reviewing the content of each issue, the Court observed that the school’s subvention of the paper’s costs distinguished the situation from one in which students were speaking independently, as in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). When a school regulates speech for which it also pays, the Court held, the appropriate question is whether the “actions are reasonably related to legitimate pedagogical concerns.” 484 U.S. at 273, 108 S.Ct. 562. “Legitimate” concerns, the Court stated, include setting “high standards for the student speech that is disseminated under its auspices — standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the ‘real’ world — and [the school] may refuse to disseminate student speech that does not meet those standards. In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting.” Id. at 271-72, 108 S.Ct. 562. Shortly after this passage the Court dropped a footnote: “A number of lower federal courts have similarly recognized that educators’ decisions with regard to the content of school-sponsored newspapers, dramatic productions, and other expressive activities are entitled to substantial deference. We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.” Id. at 273-74 n. 7, 108 S.Ct. 562 (citations omitted).

Picking up on this footnote, plaintiffs argue, and the district court held, that Hazelwood is inapplicable to university newspapers and that post-secondary educators therefore cannot ever insist that student newspapers be submitted for review and approval. Yet this footnote does not even hint at the possibility of an on/off switch: high school papers reviewable, college papers not reviewable. It addresses degrees of deference. Whether some review is possible depends on the answer to the public-forum question, which does not (automatically) vary with the speakers’ age. Only when courts need assess the reasonableness of the asserted pedagogical justification in nonpublic-forum situations does age come into play, and in a way suggested by the passage we have quoted from Hazelwood’s text. To the extent that the justification for editorial control depends on the audience’s maturity, the difference between high school and university students may be important. (Not that any line could be bright; many high school seniors are older than some college freshmen, and junior colleges are similar to many high schools.) To the extent that the justification depends on other matters&emdash;not only the desire to ensure “high standards for the student speech that is disseminated under [the school’s] auspices” (the Court particularly mentioned “speech that is ... ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences”, 484 U.S. at 271, 108 S.Ct. 562) but also the goal of dissociating the school from “any position other than neutrality on matters of political controversy”, id. at 272, 108 S.Ct. 562—there is no sharp difference between high school and college papers.

The Supreme Court itself has established that age does not control the public-forum question. See generally Symposium: Do Children Have the Same First Amendment Rights As Adults?, 79 Chi.Kent L.Rev. 3-313 (2004) (including many articles collecting and discussing these decisions). So much is clear not only from decisions such as Tinker, which held that public school students have a right of non-disruptive personal expression on school premises, but also from the decisions concerning the use of school funds and premises for religious expression. See, e.g., Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). See also Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295 (7th Cir.1993). These decisions hold that no public school, of any level-&emdash;primary, secondary, or post-secondary&emdash;may discriminate against religious speech in a public forum (including classrooms made available to extracurricular activities), or withhold funding that would be available to student groups espousing sectarian views. Good News Club, which dealt with student clubs in an elementary school, deemed dis-positive (533 U.S. at 110, 121 S.Ct. 2093) a decision about the first amendment rights of college students. Having opened its premises to student clubs, and thus created a limited-purpose public forum, even an elementary school could not supervise or censor the views expressed at a meeting of the Good News Club.

If private speech in a public forum is off-limits to regulation even when that forum is a classroom of an elementary school (the holding of Good News Club) then speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level—or later, as Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), shows by holding that the federal government may insist that physicians use grant funds only for the kind of speech required by the granting authority. Cf. National Endowment for the Arts v. Finley, 524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). We hold, therefore, that Hazelwood’s framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools. See also Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir.2004) (Hazel-wood supplies the framework for evaluating collegiate speech and allows regulation when the speech is connected to the curriculum); Bishop v. Aronov, 926 F.2d 1066 (11th Cir.1991) (.Hazelwood supplies the framework for evaluating collegiate speech and allows regulation when readers might infer the school’s approval).

B

Hazelwood’s first question therefore remains our principal question as well: was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised)? Plaintiffs contend, and the district court agreed, that the Court found a public forum missing in Hazelwood only because the paper was prepared as part of the journalism curriculum. By contrast, the Innovator was an extracurricular activity, and thus beyond all control, the district court concluded. Yet if the Constitution establishes a bright line between curricular activities and all other speech, then decisions such as Rust and Finley are inexplicable, for they hold that speakers who have completed their education still must abide by the conditions attached to public subsidies of speech and other expressive activities. See also Robert C. Post, Subsidized Speech, 106 Yale L.J. 151 (1996).

Suppose the University had given the Innovator $10,000 to publish a semester’s worth of newspapers, and Porche then had decided that the students would get more benefit from a booklet describing campus life and cultural activities in the surrounding neighborhoods. Both paper and booklet are forms of speech, but the fact that the publication was not part of the University’s curriculum and did not carry academic credit would not have allowed Porche to divert the money from one kind of speech to the other.

Or suppose that the publication in question were one under the University’s direct management — say, its alumni magazine. If the University offered course credit to journalism students who prepared a publishable puff piece, the right to control would be evident. The University, after all, is the alumni magazine’s publisher; the contents are its speech; units of state and local government are entitled to speak for themselves. See Johanns v. Livestock Marketing Ass’n, — U.S.-, 125 S.Ct. 2055, 2062-68, — L.Ed.2d - (2005); University of Wisconsin v. Southworth, 529 U.S. 217, 229, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000); Keller v. State Bar, 496 U.S. 1, 12-13, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). That institutions can speak only through agents does not allow the agents to assume control and insist that submissions graded D-minus appear under the University’s masthead. Livestock Marketing Ass’n has dispelled all doubt on that score.

Now take away the course credit and assume that the alumni magazine hires students as stringers and pays by the word for any articles accepted and printed. The University would remain the operator of this non-public forum and could pick and choose from among the submissions, printing only those that best expressed the University’s own viewpoint. Thus although, as in Hazelwood, being part of the curriculum may be a sufficient condition of a non-public forum, it is not a necessary condition. Extracurricular activities may be outside any public forum, as our alumni-magazine example demonstrates, without also falling outside all university governance. Let us not forget that academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, including the courts. See University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990); University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985); Southworth, 529 U.S. at 237-39, 120 S.Ct. 1346 (Souter, J., concurring).

C

What, then, was the status of the Innovator? Did the University establish a public forum? Or did it hedge the funding with controls that left the University itself as the newspaper’s publisher? If the paper operated in a public forum, the University could not vet its contents. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). But if underwritten student publications at Governors State University are a non-public forum, then it becomes important whether Dean Carter had legitimate pedagogical reasons for her action. We do not think it possible on this record to determine what kind of forum the University established or evaluate Dean Carter’s justifications. But the question posed by Saueier is not who wins in the end, but whether the evidence makes out a constitutional claim when taken in the light most favorable to the plaintiff. These facts would permit a reasonable trier of fact to conclude that the Innovator operated in a public forum and thus was beyond the control of the University’s administration.

The Innovator did not participate in a traditional public forum. Freedom of speech does not imply that someone else must pay. The University does not hand out money to everyone who asks. .But by establishing a subsidized student newspaper the University may have created a venue that goes by the name “designated public forum” or “limited-purpose public forum”. See United States v. American Library Association, 539 U.S. 194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003); United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Participants in such a forum, declared open to speech ex ante, may not be censored ex post when the sponsor decides that particular speech is unwelcome. The classrooms used for meetings in Good News Club were designated public forums, and because the school allowed any student group to use the space the Court held that it could not forbid religious speech. In the same way, a school may declare the pages of the student newspaper open for expression and thus disable itself from engaging in viewpoint or content discrimination while the terms on which the forum operates remain unaltered. Dean Carter did not purport to alter the terms on which the Innovator operated; that authority belonged to the Student Communications Media Board. And the rules laid down by the Board, though ambiguous, could be thought (when considered as favorably to plaintiffs as the record allows) to create a designated public forum.

Defendants concede that the Board is the publisher of the Innovator and other subsidized print and broadcast media. The Board has seven members, all chosen by the Student Senate: four students, two faculty members, and one “civil service or support unit employee of the university.” The Board determines how many publications it will underwrite (subject to the availability of funds, which as in South-worth and Rosenberger come from student activities fees), and the general character of each. It appoints “for the period of one year, the head of each student media staff.” The Board’s policy is that each funded publication “will determine content and format ... without censorship or advance approval”. If this is all there is to it, then the Innovator is in the same position as the student speakers in Southworth and Rosenberger; a designated public forum has been established, and the faculty cannot censor speech within it. When viewing matters in the light most favorable to the students, we stop here, because other matters are cloudy.

Two things have the potential to cast matters in a different light if a trial were to occur. One is that the Board’s charter provides that it is “responsible to the Director of Student Life.” Perhaps the Director of Student Life (who appears to be one of Dean Carter’s subordinates) has established criteria for subsidized student publications. None is in the record, however, so this possibility does not matter. The other is that each funded publication has a faculty adviser. The parties disagree not only about who the adviser was at the critical time (plaintiffs say that de Laforcade remained their adviser even after he left the University’s faculty; Carter insists that a different person filled that position) but also about whether the adviser just offers advice (plaintiffs’ view) or exercises some control (Carter’s view). Because the district court acted on a motion for summary judgment, it assumed (as do we) that plaintiffs’ perspective is the correct one. On that understanding, the Board established the Innovator in a designated public forum, where the editors were empowered to make their own decisions, wise or foolish, without fear that the administration would stop the presses.

Ill

Qualified immunity nonetheless protects Dean Carter from personal liability unless it should have been “clear to a reasonable [public official] that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. “This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition”. Id. at 201, 121 S.Ct. 2151. See also, e.g., Wilson v. Layne, 526 U.S. 603, 614-18, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Greenberg v. Kmetko, 840 F.2d 467 (7th Cir.1988) (en banc). One might well say as a “broad general proposition” something like “public officials may not censor speech in a designated public forum,” but whether Dean Carter was bound to know that the Innovator operated in such a forum is a different question altogether.

The district court held that any reasonable college administrator should have known that (a) the approach of Hazelwood does not apply to colleges; and (b) only speech that is part of the curriculum is subject to supervision. We have held that neither of these propositions is correct— that Hazelwood’s framework is generally applicable and depends in large measure on the operation of public-forum analysis rather than the distinction between curricular and extracurricular activities.

But even if student newspapers at high schools and colleges operate under different constitutional frameworks, as both the district judge and our panel thought, it greatly overstates the certainty of the law to say that any reasonable college administrator had to know that rule. The question had been reserved in Hazelwood, and the Supreme Court does not identify for future decision questions that already have “clearly established” answers. See Wilson v. Layne, 526 U.S. 603, 614-18, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Post-Hazel-wood decisions likewise had not “clearly established” that college administrators must keep hands off all student newspapers. As we mentioned in Part II.A, the tenth and eleventh circuits have used Ha-zelwood as the framework for evaluating the acts of colleges as well as high schools. One circuit has said otherwise. See Student Government Ass’n v. University of Massachusetts, 868 F.2d 473, 480 n. 6 (1st Cir.1989) (asserting, in sole reliance on Hazelwood’s footnote 7, that the Supreme Court itself “holds” that Hazelwood’s approach does not apply to post-secondary education). The approach of others is hard to classify. See Kincaid v. Gibson, 236 F.3d 342, 346 n. 5 (6th Cir.2001) (en banc) (stating, in reliance on the parties’ agreement, that Hazelwood has “little application” to collegiate publications but not explaining what this means, or how a constitutional framework can apply “just a little”). This circuit had not spoken on the subject until our panel’s opinion, which post-dated Dean Carter’s actions.

Many aspects of the law with respect to students’ speech, not only the role of age, are difficult to understand and apply, as we remarked in Baxter v. Vigo County School Corp., 26 F.3d 728 (7th Cir.1994), when holding school administrators entitled to qualified immunity for banning certain message-bearing T-shirts that the elementary-school pupils claimed were protected under Tinker. See also, e.g., Brown v. Li, 308 F.3d 939 (9th Cir.2002), in which the members of the appellate panel articulated three distinct and incompatible views about whether Hazelwood applies to collegiate settings and how the first amendment affects relations between college faculty and students’ expression.

Neither plaintiffs, who have elected to appear pro se, nor the amici curiae who have ably supported their position in this court, contend that Dean Carter owes damages from her own purse if Hazelwood establishes the appropriate legal framework. For reasons that should by now be evident, the implementation of Hazelwood means that both legal and factual uncertainties dog the litigation&emdash;and it is the function of qualified immunity to ensure that such uncertainties are resolved by prospective relief rather than by financial exactions from public employees. “Qualified immunity shields an official from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau, 125 S.Ct. at 599. That description is as apt here as it was in Brosseau.

Public officials need not predict, at their financial peril, how constitutional uncertainties will be resolved. Disputes about both law and fact make it inappropriate to say that any reasonable person in Dean Carter’s position in November 2000 had to know that the demand for review before the University would pay the Innovator’s printing bills violated the first amendment. She therefore is entitled to qualified immunity from liability in damages.

Reversed.