From father to big brother: Applying K-12 law to colleges

Academe, Jan/Feb 1999 by Alger, Jonathan R

AS OUR SOCIETY SEEKS to prepare more and more students for college-level work in a l marketplace that demands such training, policy makers are paying increased attention to the connections between elementary and secondary schools and their higher education counterparts.

Recognition of this continuum is critical to a broad understanding of our nation's educational system. Nonetheless, when courts blur the distinctions between K-12 and higher education, fundamental strengths and values of the academy may be undermined.

A professor of educational studies at California University of Pennsylvania recently sued his university after he was suspended for teaching from a nonapproved syllabus in a course on educational media. In ruling against him, a federal appellate court asserted that "a public university professor does not have a First Amendment right to decide what will be taught in the classroom." Citing precedents from the K-12 context, the court stated that his in-class conduct and classroom management techniques could be freely regulated by university dictates because he worked for a state institution.

In another recent case, Kincaid v. Gibson, a federal district court applied a Supreme Court decision permitting censorship of publications sponsored by high schools to a university yearbook. Administrators at Kentucky State University refused to distribute the student yearbook because they objected to its color, title, picture captions, and focus on current events. They did not argue that the yearbook contained libel, obscenity, or any other form of expression subject to First Amendment restrictions. The court stated that the university is free to set higher standards than those demanded by newspaper publishers in the "real world," adopting the Supreme Court's standard allowing administrators to censor high school publications that they find to be "ungrammatical, poorly written, inadequately researched, biased or prejudiced. . ., or inconsistent with the shared values of a civilized social order."

The K-12 precedents relied on by these courts justify regulation of faculty and student expression on the premise that the state itself is essentially the speaker in public school activities, both in and outside the classroom. The state's authority to regulate such expression reflects the compulsory nature of elementary and secondary education, state mandates regarding details of the curriculum, and the parentlike responsibilities of school officials based on the age and maturity of their students.

Relying on these factors, the Colorado Supreme Court a few months ago upheld a school districts "controversial learning resources policy," which would eviscerate academic freedom if replicated at the university level. The policy restricts the use of items "which are subject to disagreement as to appropriateness because they refer or relate to controversial issues or present material in a manner or context which is itself controversial." A high school teacher was dismissed under the policy for failing to get approval from the principal before showing portions of a film about the rise of fascism in pre-World War II Italy.

Application of such precedents to public colleges and universities is inappropriate in light of the nature of the state's authority and its relationship to students at that level. College students choose whether and where to enroll and are generally treated as adults under the law. The Supreme Court itself has recognized that the mission of public postsecondary institutions is to provide a setting for the "robust exchange of ideas," in which faculty members are expected to expose students to a broad range of perspectives-including those that may be controversial, unpopular, or even offensive to some students. Similarly, most courts have held that student-run publications at colleges and universities-even when they are subsidized by the institutions-should be guided by the canons of responsible journalism, and that administrators must steer clear of content-based restrictions on such publications.

Government officials are quite right to focus on the relationship of K-12 to higher education, but courts must be careful to analyze the state's changing role as students mature. That role includes preparing students for a truly robust exchange of ideas. Courts should weigh restrictions on faculty and student expression at all levels carefully with that goal in mind. As noted in a thoughtful dissent in the "learning resources policy" case in Colorado, "[Our public schools, at their best, generate interest and excitement in learning, instill democratic values, and prepare today's youth to become thinkers and problem-solvers."

Jonathan Alger is AAUP counsel.