Last month we looked at a circuit split arising from the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, in which the Court recognized a public school’s right to restrict “school-sponsored speech” without offending the First Amendment where the restriction is reasonably related to a legitimate educational concern. (You can read the post here.) As a result, schools have broad discretion over the curriculum presented to students.
Last week in Ward v. Polite, the Sixth Circuit found that "the First Amendment does not permit educators to invoke curriculum ‘as a pretext for punishing [a] student for her . . . religion’” because such speech “discriminating against the religious views of a student is not a legitimate end of a public school.” Nos. 10-2100/2145 (6th Cir. Jan. 27, 2012). This position appears to be consistent with those taken by the Ninth and Eleventh Circuits in the following circuit split:
A split exists among the Circuits on the question of whether Hazelwood requires viewpoint neutrality. Compare Fleming v. Jefferson County Sch. Dist., 298 F.3d918, 928 (10th Cir.2002) ("We hold . . . that Hazelwood does not require educators' restrictions on school-sponsored speech to be viewpoint neutral.") and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in Kuhlmeier did not require that school regulation of school-sponsored speech to be viewpoint neutral.") with Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 830 (9th Cir.1991) ("Because their decision to limit access, whether wise or unwise, is reasonable and not an effort at viewpoint discrimination, the school district did not violate the first amendment in declining to publish Planned Parenthood's advertisements.") and Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) ("Hazelwood . . . does not alter the test for reasonableness in a nonpublic forum such as a school but rather provides the context in which the reasonableness of regulations should be considered. . . . [T]here is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views.") Because we conclude that Hazelwood does not apply in this case, we do not consider whether Hazelwood requires viewpoint neutrality.
Chiras v. Miller, 432 F. 3d 606, 615 n.27 (5th Cir. 2005). You may recall a similar situation in Keeton v. Anderson-Wiley, No. 10-13925 (11th Cir. Dec. 16, 2011), in which the Eleventh Circuit upheld the university’s action taken against a student counselor who refused to comply with the purported curriculum on religious grounds. It looks like Ward and Keeton are at odds with each other, doesn't it? Not so fast, says the Sixth Circuit: “there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye.”
For starters, according to the Sixth Circuit, “[t]he procedural settings of the two cases differ.” Second, “[t]he two claimants’ theories of constitutional protection also are miles apart.” Third, whereas “[i]n Keeton, the district court made preliminary fact findings after holding a[n evidentiary] hearing,” in Ward, there were “no trial-level fact findings” and Ward received “the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.” Fourth and finally, the Sixth Circuit draws a sharp factual distinction in Ward:
Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor’s values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university’s own practices, seem to permit the one thing Ward sought [but was denied]: a referral.
The Sixth Circuit does, however, acknowledge that the two decisions “share the same essential framework and reasoning,” explaining,
They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's antidiscrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.