PUBLIC UNIVERSITIES AND THE
MARKETPLACES OF IDEAS:
AN INVENTORY OF STUDENTS’
FIRST AMENDMENT SECULAR CASES
© 2000
Perry A. Zirkel
University Professor of Education and Law
Lehigh University
111 Research Drive
Bethlehem, PA 18015
(tel. 610/758-3239)
e-mail: paz0@lehigh.edu
Presentation at the 21st Annual National Conference on Law and Higher Education
Stetson University College of Law
Clearwater Beach, FL — February 2000
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The First Amendment and Higher Education Students:
Part II, The Secular Cases
Perry Zirkel
© 2000
This annotated outline is the second of two parts presenting a comprehensive
inventory of the modern First Amendment cases law concerning students in higher
education.1 This second part provides the cases that are based on the First Amendment
freedoms of expression, assembly/association, and the press, rather than the two clauses -establishment and free exercise -- that are specific to religion.2 "Modern" in this context
refers to published decisions after the Supreme Court's decision, 30 years ago, in Tinker v.
Des Moines Independent Community School District.3 Although the context of this
decision was elementary/secondary, rather than postsecondary, education, it had an evident
impact on the subsequent First Amendment expression court decisions in higher
education, as is noted in illustrative case entries in this inventory.
Kept to a relative minimum, the acronyms or abbreviations in the cases blurbs are
as follows:
Am. I Ass’n = First Amendment freedom of assembly/association
Am I Est. Cl. = First Amendment establishment clause
Am. I FE = First Amendment free exercise clause
Am. I Press = First Amendment freedom of assembly
Am. I Speech = First Amendment freedom of expression
Am. XIV = Fourteenth Amendment
cf. = citation signal for different but analogous ruling4
IHE = institution of higher education
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As in Part I, the case blurbs are organized into operational topics and subtopics, such
as student fees for umbrella students organizations and for particular student organizations.
Within each of these subtopics, the citation of the court's decision is preceded by one of
the following outcome symbols designating the direction of the judgment in relation to the
First Amendment clauses(s) at issue:
+ = final judgment in favor of constitutionality of the challenged
action or policy
(+) = inconclusive judgment (e.g., preliminary injunction or
disposition on other grounds) in favor of the challenged action
or policy
+/- = split rulings on the constitutionality of the challenged action or
policy
(-) = inconclusive judgment against the challenged action or policy
- = final judgment against constitutionality of the challenged action
or policy
These introductory signals are only quick classifications for cursory trends analysis; the
problems that warrant closer examination include whether the institution's challenged
policy or action was in favor or against student expression or association. Similarly, on
some occasions the First Amendment rights are countervailing, such as where First
Amendment establishment clause is a purported defense for institutional infringements on
student expression.5
The entry for each case includes a brief summary of the court's pertinent ruling(s),
including clarification as to the type of institution. In most cases, the IHE is public, in
light of the need for "state action" to trigger the First Amendment. Occasionally, however,
the state action is provided by the challenged activities of the police.6
Finally, the decisions by the U.S. Supreme Court are listed in bold typeface in light
of their national jurisprudential importance. Perhaps the most famous of these decisions is
Healy v. James,7 which tended to at least partially replace Tinker.
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Overall, the contents of Part I reveal a much higher volume than that of the
religion-related caselaw in Part I; approximately 130 as compared with approximately 35
published court decisions. The volume has decreased in each successive decade, starting
at a high point of approximately 60 cases in the 1970s and ending with approximately 25
in the 1990s. The court vindicated the constitutionality of the defendant government’s or
institution’s policy or action in an estimated 50 percent of the conclusive decisions to date.
Finally, the issues have varied widely, with the academic programs category being
relatively limited and recent.
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FINANCIAL AID
• TO SECTARIAN IHEs8
+ Columbia Union College v. Clarke, 159 F.3d 151, 130 Ed.Law Rep. [391] (4th
Cir. 1998), cert. denied, 119 S. Ct. 2357 (1999)
• upheld denial of grants to pervasively sectarian IHE as not violating Am. I.
Speech (or Est. Cl.)
• TERMINATED FOR CONTROVERSIAL EXPRESSION
+ Marcum v. Dahl, 658 F.2d 731 (10th Cir. 1981)
• upheld constitutionality (Am. I Speech) of nonrenewal of athletes' scholarships
where they commented to the press that they would not play if the head coach
was rehired (not substantial factor)
STUDENT FEES
• FOR UMBRELLA STUDENT ACTIVITIES ORGANIZATION
+/- Good v. Associated Students of Univ. of Washington, 542 P.2d 762 (Wash.
1975)
• upheld constitutionality (Am. I Ass'n) of mandatory service and activities fee
but rejected constitutionality of mandatory membership in student activities
organization
+/- Smith v. Regents of Univ. of California, 844 P.2d 500, 80 Ed.Law Rep. [248]
(Cal. 1993) cert. denied, 510 U.S. 863 (1993), further proceedings, 65 Cal. Rptr.
2d 813, 119 Ed.Law Rep. [1106] (Ct. App. 1997)9
• upheld constitutionality (Am. I Ass'n/Speech) of public IHE’s mandatory
student activities fee, but required partial refund for students objecting to use of
their fees for political and ideological activities, whereupon the test is whether
the educational benefits are merely incidental to the activity’s primary function
of advancing political or ideological interests (and the narrowly drawn, or least
drastic, means is the same as, not an addition to, this test)
- Southworth v. Grebe, 151 F.3d 717, 128 Ed.Law Rep. [624] (7th Cir. 1998),
cert. granted sub nom. Board of Regents v. Southworth, 119 S. Ct. 1332
(1999)
• held that use of public IHE’s mandatory student activity fee to fund private
organizations that engaged in political and ideological activities violated Am. I.
Speech (but that the lower court’s opt-out remedy was overbroad)
• OF PUBLIC INTEREST RESEARCH GROUPS (PIRGs)
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- Galda v. Rutgers, 772 F.2d 1060, 27 Ed.Law Rep. [683] (3d Cir. 1985), cert.
denied, 475 U.S. 1065 (1986)
• held that public IHE’s policy funding politically active organizations (PIRGs)
via a separate, mandatory but refundable student fee violated Am. I Speech of
objecting students -- lack of compelling interest in the organization's
contribution to the university forum
+ Carroll v. Blinken, 957 F.2d 991, 73 Ed.Law Rep. [376] (2d Cir. 1992), cert.
denied, 506 U.S. 906 (1992), further proceedings, 42 F.3d 122, 96 Ed.Law Rep.
[328] (2d Cir. 1994)10
• held that funding of PIRG from public IHE's mandatory student activity fee
does not violate Am. I Speech, but that PIRG may not define its membership to
include objecting students
+ Rounds v. Oregon State Bd. of Educ., 166 F.3d 1032, 132 Ed.Law Rep. [72] (9th
Cir. 1999)
• held that funding of PIRG from IHE’s mandatory, student activity fee does not
violate Am. I speech or Ass’n where membership in the PIRG is voluntary and
its activities fit within IHE’s educational mission
• FOR LEGAL SERVICES11
+ Maryland PIRG v. Elkins, 565 F.2d 864 (4th Cir. 1977), cert. denied, 435 U.S.
1008 (1978)
• upheld constitutionality (Am. I Speech) of public IHE preventing the use of
student activities fees for litigation by PIRG
(+) Arizona Bd. of Regents v. Zappia, 577 P.2d 735 (Ariz. App. 1978)
• affirmed dismissal, due to lack of standing (“no existence separate and apart
from the University”), student organization’s Am. I challenge to public IHE’s
refusal to allow it to hire its own legal counsel
• FOR STUDENT RELIGIOUS GROUPS12
+ Tipton v. University of Hawaii, 15 F.3d 922, 89 Ed.Law Rep. [441] (9th Cir.
1994)
• upheld constitutionality (Am. I Speech and Est. Cl.) of public IHE’s policy of
not funding student organizations that would use the funds to promote a
particular religious point of view, even if in a secular context
- Rosenberger v. Rector and Visitors of Univ. of Virginia, 115 S. Ct. 2510, 101
Ed.Law Rep. [552] (1995)
• held that public IHE’s denial of use of mandatory student fees to support
religious organizations, where the other use of these fees constituted a limited
public forum, violated Am. I Speech (and FE)
• FOR OTHER PARTICULAR STUDENT ORGANIZATIONS13
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+ Lace v. University of Vermont, 303 A.2d 475 (Vt. 1973)
• upheld constitutionality (Am. I Speech) of use of public IHE’s mandatory
student fees to support student newspaper, speakers bureau, and other such
activities
+ Veed v. Schwartzkopf, 353 F. Supp. 149 (D. Neb. 1973), aff'd mem., 478 F.2d
1407 (8th Cir. 1973), cert. denied, 414 U.S. 1135 (1974)
• SAME
+ Larson v. Board of Regents, 204 N.W.2d 568 (Neb. 1973)
• upheld constitutionality (Am. I Speech) of use of public IHE’s mandatory
student fees to support student newspaper that constituted an open forum
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+ Arrington v. Taylor, 380 F. Supp. 1348 (M.D.N.C. 1974), aff'd mem., 526 F.2d
587 - (4th Cir. 1975), cert. denied, 424 U.S. 913 (1976)
• SAME
+ Hickman v. Board of Regents, 552 S.W.2d 616 (Tex. App. 1977)
• SAME
+ Kania v. Fordham, 702 F.2d 475, 9 Ed.Law Rep. [1158] (4th Cir. 1983)
• SAME
+ Turner v. Sayers, 575 So.2d 1135, 66 Ed.Law Rep. [883] (Ala. App. 1991)
• upheld constitutionality (Am. I Speech and Ass'n) of use of public IHE’s
student activity fees to pay for speaker on abortion at student-sponsored lecture
+ Hays County Guardian v. Supple, 969 F.2d 111, 76 Ed.Law Rep. [355] (5th Cir.
1992), cert. denied, 506 U.S. 1087 (1993)
• upheld constitutionality (Am. I Speech) of use of public IHE’s mandatory
student fees to finance student-run newspaper
(+) Curry v. Regents of Univ. of Minnesota, 167 F.3d 420, 132 Ed.Law Rep. [300]
(8th Cir. 1999)
• rejected standing, as intervenors, of organizations that were the focus of the
plaintiff-students’ Am. I (Speech) objections
RESIDENCE HALLS
• GENERAL CANVASSING OR SOLICITATION
+ Brush v. Pennsylvania State Univ., 414 A.2d 48 (Pa. 1980)
• upheld public IHE’s prohibition of door-to-door canvassing (except by
invitation or majority vote) as permissible time, place, and manner regulations,
where there were alternatives of telephone, mail, and main lobby canvassing
+ Harrell v. Southern Illinois Univ., 457 N.E.2d 971, 15 Ed.Law Rep. [326] (Ill.
App. 1983)
• upheld public IHE’s policy limiting door-to-door solicitation as reasonable
regulation of time, place, and manner
+ Chapman v. Thomas, 743 F.2d 1056, 20 Ed.Law Rep. [51] (4th Cir. 1984), cert.
denied, 471 U.S. 1004 (1985)
• upheld constitutionality of public IHE’s policy prohibiting door-to-door
solicitation, where not a public forum14
• POLITICAL CANVASSING
(-) Jones v. Nelson, 349 F. Supp. 1061 (N.D. Ill. 1972)
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• issued temporary restraining order, based on Am. I Speech, against public IHE
regulation that conditioned door-to-door political canvassing in residence halls
on a 2/3 vote of residents
+ National Movement for Student Vote v. Regents of Univ. of California, 123 Cal.
Rptr. 141 (Ct. App. 1975)
• upheld, based on Am. I Speech (plus state statute), public IHE’s policy that
prohibited solicitation of voter registration on dorm floors where students
resided but that allowed it in main lobby
• COMMERCIAL SOLICITATION
(+/-) American Future Systems v. State Univ. of New York at Cortland, 565 F. Supp.
754, 12 Ed.Law Rep. [ 375] (N.D.N.Y. 1983)
• issued preliminary injunction against public IHE’s policy as applied to prohibit
commercial sales transactions in rooms of inviting students but not as applied
to prohibit commercial sales demonstration in same
+ American Future Systems v. Pennsylvania State Univ., 618 F.2d 252 (3d Cir.
1980), ("AFS I"), 688 F.2d 907, 6 Ed.Law Rep. [888] (3d Cir. 1982), ("AFS II"),
752 F.2d 854, 22 Ed.Law Rep. [716] (3d Cir. 1984) ("AFS III"), cert. denied, 473
U.S. 911 (1985)
• upheld constitutionality of public IHE policy prohibiting commercial
solicitation in common areas in residence halls and group demonstrations in
students' dorm rooms
(+) Fox v. Board of Trustees, 492 U.S. 1169, 54 Ed.Law Rep. [61] (1989), on
remand, 42 F.3d 135, 96 Ed.Law Rep. [338] (2d Cir. 1994), cert. denied, 515
U.S. 1169 (1995)
• held that public IHE’s ban on commercial activity in dorm rooms was narrowly
tailored and based on legitimate interest and need not be least restrictive
alternative, but upon remand, on the question of whether the noncommercial
aspect was overbroad, the case was found to be moot
• RESIDENT ADVISORS (RAs)
- Shelton v. Trustees, 891 F.2d 165, 57 Ed.Law Rep. [756] (7th Cir. 1989)
• upheld nonrenewal, as not violating Am. I Speech, of RA who insubordinately
refused to stop displaying his unbolted AR-15 automatic rifle in his dorm room
+ Teta v. Packard, 959 F. Supp. 469, 117 Ed.Law Rep. [1055] (N.D. Ill. 1997)
• rejected alleged retaliation (Am. I Speech) claim of student whom RA charged
with battery
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STUDENT ORGANIZATIONS15
• DISCIPLINE GENERALLY
- Pickings v. Bruce, 430 F.2d 595 (8th Cir. 1970)
• invalidated, based on Am. I Speech, administrative sanctions of student
organization for writing letter to off-campus church, questioning its policies on
integration, and for refusing to cancel a speaking engagement where no
concrete proof of material and substantial disruption (Tinker)
• DISCIPLINE -- FRATERNITIES
- Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386,
83 Ed.Law Rep. [43] (4th Cir. 1993)
• held that public IHE's discipline of fraternity for sponsoring "ugly women" and
racist dress events violated Am. I (Speech)
+ Pi Lambda Phi Fraternity, Inc. v. University of Pittsburgh, 58 F. Supp2d 619, 137
Ed.Law Rep. [216] (W.D. Pa. 1999)
• ruled that public IHE’s indefinite suspension and withdrawal of recognition of
fraternity in the wake of disciplinary violations, including illegal drug activity,
did not violate Am. I Ass’n
• DENIAL OF RECOGNITION/ACCESS -- GAY GROUPS16
- Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972)
• held that public IHE’s denial of use of its facilities for gay groups’ conference
and dance violated Am. I Speech and Ass’n
- Gay Students Organization v. Bonner, 509 F.2d 652 (1st Cir. 1974)
• held that public IHE’s reversal of recognition for gay group violated Am. I
Speech and Ass'n
(-) University of New Hampshire v. April, 347 A.2d 446 (N.H. 1975)
• federal court decision that public IHE’s denial of recognition to gay group
violated Am. I was res judicata in state court regardless of whether
homosexuality is a mental disease
- Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976)
• held that public IHE’s denial of recognition to gay group violated Am. I Speech
and Ass'n
- Gay Lib. v. University of Missouri, 558 F.2d 848 (8th Cir. 1977), cert. denied,
434 U.S. 1080 (1978)
• SAME
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- Student Coalition v. Austin Peay State Univ., 477 F. Supp. 1267 (M.D. Tenn.
1979)
• held that public IHE’s denial of recognition to gay organization was not
supported by a compelling government interest and, thus, violated Am. I Ass'n
- cf. Department of Educ. v. Lewis, 416 So.2d 455, 5 Ed.Law Rep. [681] (Fla.
1981)
• held that state statute withdrawing IHE’s state funding due to its recognition of
organization that advocated sex between unmarried individuals violated Am. I
Speech
- Gay Activists Alliance v. Board of Regents, 638 P.2d 1116, 2 Ed.Law Rep. [259]
(Okla. 1981)
• held that public IHE’s denial of recognition to gay advocacy group violated
Am. I Speech and Ass’n
- Gay Student Serv. v. Texas A&M Univ., 737 F.2d 1317, 18 Ed.Law Rep. [556]
(5th Cir. 1984), cert. denied, 478 U.S. 1001 (1985)
• SAME
- Gay and Lesbian Students Ass'n v. Gohn, 850 F.2d 361, 47 Ed.Law Rep. [500]
(8th Cir. 1988)
• held that public IHE’s denial of funding to homosexual rights organization
violated Am. I Speech
- Clarke v. United States, 705 F. Supp. 605, 52 Ed.Law Rep. [64] (D.D.C. 1988)
• held that federal statute depriving D.C. of appropriations if, in effect, D.C.'s
Human Rights Act was not amended to allow religiously affiliated IHE's to
deny benefits or endorsement to pro-homosexual organizations violated Am. I
(Speech)17
(-) Gay, Lesbian, Bisexual Alliance v. Evans, 843 F. Supp. 1424, 89 Ed.Law Rep.
[848] (M.D. Ala. 1993)
• rejected dismissal motion by state attorney general, who contended that he was
inappropriate defendant, in suit by gay and lesbian student organization
challenging constitutionality of state statute that prohibited use of public IHEs’
funds to support any organization that "fosters . . . actions prohibited by the
sodomy and sexual misconduct laws"
(+) Nomi v. Regents for the Univ. of Minnesota, 5 F.3d 322, 85 Ed.Law Rep. [1017]
(8th Cir. 1993)
• ducked deciding constitutionality (Am. I Speech) of public IHE's
nondiscrimination policy for campus recruitment -- student plaintiff had
graduated and, thus, case was moot
- Gay Lesbian/Bisexual Alliance v. Pryor, 110 F.3d 1543, 117 Ed.Law Rep. [462]
(11th Cir. 1997)
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• held that state statute prohibiting any IHE from spending funds or using
facilities to recognize or support any group that promotes sodomy or sexual
misconduct violated Am. I Speech, including overbreadth
• DENIAL OF RECOGNITION/ACCESS -- RELIGIOUS GROUPS18
(-) Aman v. Handler, 653 F.2d 41 (1st Cir. 1981)
• remanded case to determine whether public IHE had sufficient grounds, under
Healy, for refusing official recognition to organization with ties to Rev. Moon's
Unified Church
• OTHER DENIALS OF RECOGNITION/ACCESS
+ Lieberman v. Marshall, 236 So.2d 126 (Fla. 1970)19
• held that public IHE’s denial of recognition of activist student organization
(Students for a Democratic Society) and temporary restraining order against it
holding any meeting or rally in campus buildings did not violate Am. I Speech
(or the Florida constitution)
- A.C.L.U. of Virginia v. Radford College, 315 F. Supp. 893 (W.D. Va. 1970)
• held that public IHE’s denial of recognition of student chapter of A.C.L.U.
violated Am. I Speech (Tinker)
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- University of So. Mississippi Chapter of M.C.L.U. v. University of So.
Mississippi, 452 F.2d 564 (5th Cir. 1971)
• held that public IHE’s denial of recognition of student civil liberty union, based
on its litigiousness, violated Am. I Speech (Tinker)
- Healy v. James, 408 U.S. 169 (1972)
• held that public IHE’s denial of recognition of student activist group (Students
for a Democratic Society) violated Am. I (Ass'n) where no concrete proof of
substantial and material disruption (Tinker)
+ Merkey v. Board of Regents, 344 F. Supp. 1296 (N.D. Fla. 1972), vacated as
moot, 493 F.2d 790 (5th Cir. 1974)
• held that public IHE’s denial of recognition of Young Socialist Alliance did not
violate Am. I Speech (or Am. XIV due process or equal protection) because the
group posed more than a speculative threat of substantial disruption
(-) Hudson v. Harris, 478 F.2d 244 (10th Cir. 1973)
• reversing dismissal, remanded whether public IHE’s denial of recognition to
two student anti-war groups violated Am. I (Healy)
(-) cf. Ad-Hoc Comm. v. Bernard M. Baruch College, 726 F. Supp. 522, 57 Ed.Law
Rep. [1274] (S.D.N.Y. 1989)20
• held that Am. I Ass'n does not require public IHE to fund or recognize alumni
groups, but that if it does, it must do so nondiscriminately
STUDENT PUBLICATIONS/MEDIA21
• PRIOR REVIEW
- Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970)
• rejected faculty advisory board’s prior review of material to be published in
public IHE campus newspaper
- Channing Club v. Board of Regents, 317 F. Supp. 688 (N.D. Tex. 1970)
• held that public IHE’s decision to ban circulation and distribution of student
organization's lewd tabloid violated Am. I Speech (and Am. XIV equal
protection)
- Trujillo v. Love, 322 F. Supp. 1266 (D. Colo. 1971)
• rejected, based on Am. I Speech, public IHE’s suspension of student editor for
failing to submit controversial material to faculty advisor
• INSTITUTIONAL SUPPORT
- Bazaar v. Fortune, 476 F.2d 570, modified, 489 F.2d 225 (5th Cir. 1973), cert.
denied, 416 U.S. 995 (1974)
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• held that public IHE’s discontinuance of student literary magazine for
offensive content violated Am. I Speech
- Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973)
• invalidated public IHE’s discontinuance of support for student newspaper due
to its editorial policies
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- Stanley v. Magrath, 719 F.2d 279, 14 Ed.Law Rep. [75] (8th Cir. 1983)
• held that public IHE's reduction in funding, via liberalizing refunds to students,
of student newspaper as a result of content of offensive issue violated Am. I
Speech
+ Olson v. State Bd. for Community Colleges, 759 P.2d 829, 48 Ed.Law Rep.
[1008] (Colo. Ct. App. 1988)22
• upheld public IHE’s termination of funding of student newspaper as bona fide
economic decision, not Am. I retaliation for content
• DISCIPLINE
- Thonen v. Jenkins, 491 F.2d 722 (4th Cir. 1975)23
• held that use of one vulgar word in an open letter in student newspaper
criticizing policies of public IHE's president did not justify his disciplining the
student writer and editor
- Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975)
• held that public IHE’s firing of editors of student newspaper for poor quality
violated Am. I (Speech)
+ Murray v. Board of Trustees, 659 F.2d 77 (6th Cir. 1981), rev’d mem., 711 F.2d
1057 (6th Cir. 1983)
• held that public IHE’s firing of student editors for satirical issue did not violate
Am. I (Speech) in terms of qualified immunity
• INSTITUTIONAL LIABILITY
(-) Milliner v. Turner, 436 So.2d 1300, 13 Ed.Law Rep. [589] (La. Ct. App. 1983),
vacated, 467 So.2d 1123 (La. 1985)
• rejected duty of public IHE to supervise student reporters on staff of student
newspaper, thereby invalidating, based on Am. I Speech, state statute that
specified teachers were liable for preventable damages caused by students
• EDITORIAL DISCRETION24
- Lee v. Board of Regents, 441 F.2d 1257 (7th Cir. 1971)
• held that rejection by public IHE’s campus newspaper of editorial ads violated
Am. I Speech
+ Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir. 1976), cert.
denied, 430 U.S. 982 (1978)
• upheld editorial discretion of student newspaper, where not influenced by
public IHE officials, to reject ad by homosexual group -- lack of state action
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- Lueth v. St. Clair Community College, 732 F. Supp. 1410, 59 Ed.Law Rep. [713]
(E.D. Mich. 1990)
• rejected public IHE’s prohibition of ad for nude dancing club as violation of
Am. I Speech. -- regulatory authority was not narrowly tailored, with specific
guidelines
(+) Kincaid v. Gibson, 191 F.3d 719 (6th Cir. 1999), vacated for rehearing, 1999
U.S. App. LEXIS 3159 (6th Cir. 1999)
• upheld constituionality of public IHE’s consfication of student yearbook that
was funded by student fees and that did not have, in the administration’s view,
proper focus and quality
• DISTRIBUTION REGULATION
+ Texas Review Society v. Cunningham, 659 F. Supp. 1239, 39 Ed.Law Rep.
[1118] (W.D. Tex. 1987)
• upheld constitutionality (Am. I Speech) of university regulation requiring free
student publications containing outside, paid ads to be distributed from
unmanned stands -- content neutral and tailored to narrow governmental
interest of preserving campus atmosphere from commercial hawking
• CONFIDENTIALITY
+ cf. Zurcher v. Stanford Daily, 436 U.S. 547 (1978)
• upheld police search, pursuant to search warrant, of student newspaper's offices
at private IHE -- no Am. I (Press) exception to Am. IV, which would have
required law enforcement officials to use a subpoena rather than a search
warrant
+ Campus Communications, Inc. v. Freedman, 374 So.2d 1169 (Fla. Dist. Ct. App.
1979)
• rejected Am. I newsman privilege for confidential source when student
newspaper is the plaintiff
OFF-CAMPUS PUBLICATIONS
• REGULATIONS FOR DISTRIBUTION ON CAMPUS
- New Times, Inc. v. Arizona Bd. of Regents, 519 P.2d 169 (Ariz. 1974)
• held that public IHE regulation severely limiting distribution of off-campus
newspapers, including fee and registration requirements, violated Am. I Press
-- public forum
+/- Brubaker v. Moelchert, 405 F. Supp. 837 (W.D.N.C. 1975)
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• held that original regulation of outside groups’ distribution and sale of
materials (here, labor party newspaper) violated Am. I, but that revised
regulations were constitutional -- limited public forum
(-) Solid Rock Foundation v. Ohio State Univ., 478 F. Supp. 96 (S.D. Ohio 1979)
• granted preliminary injunction invalidating public IHE regulation of
distribution of national student newspaper (along with other off-campus
publications to eight campus locations) -- not reasonable time, place, manner
- Spartacus Youth League v. Board of Trustees, 502 F. Supp. 789 (N.D. Ill. 1980)
• held that public IHE regulations requiring written approval for sales of
publications and providing free distribution of printed materials only by
students, faculty, and staff violated Am. I public forum, especially for political
literature
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(-) State v. Schmid, 423 A.2d 615 (N.J. 1980), appeal dismissed, 455 U.S. 100
(1981)
• ducked uncertain possible Am. I coverage of private IHE under evolving public
use doctrine, concluding that enforcement of regulation that required prior
permission for nonstudents to distribute materials on campus as applied to
political materials violated state constitution -- lack of reasonable standards
(-) Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981)
• ducking Am. I, rejected standardless permit requirement in open area of private
IHE as violating state constitution
+ Glover v. Cole, 762 F.2d 1197, 25 Ed.Law Rep. [134] (5th Cir. 1985)
• upheld public IHE's policy prohibiting solicitation by off-campus groups as
applied to representatives of two socialist parties
• DISCIPLINE FOR ON-CAMPUS DISTRIBUTION
- Papish v. Board of Curators, 410 U.S. 667 (1973)
• held that public IHE’s expulsion of graduate student for distributing on campus
a newspaper containing indecent speech and cartoons violated Am. I Speech -neither obscene content nor time, place, manner regulation
(+) State v. Guice, 621 A.2d 553, 81 Ed.Law Rep. [883] (N.J. Super. Ct. 1993)
• upheld, under state constitution, trespass conviction for distributing political
literature on campus that was not "open"
SPONSORED SPEAKERS AND FILMS25
• REGULATIONS
- Smith v. University of Tennessee, 300 F. Supp. 777 (E.D. Tenn. 1969)
• rejected public IHE's regulations for university-sponsored program as
unconstitutionally overbroad (and vague)
- Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss. 1969), aff’d mem., 446 F.2d
1366 (5th Cir. 1971)
• rejected public IHE's regulations for off-campus speakers as violation of Am. I
Speech and Ass’n -- clear and present danger (Tinker)
- Molpus v. Fortune, 432 F.2d 916 (5th Cir. 1970)
• held that public IHE administrator’s refusal to allow student group to invite
controversial speaker violated Am. I where no clear proof of clear and present
danger to orderly operation
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- cf. Lawrence Bicentennial Comm'n v. Appleton, Wisconsin, 409 F. Supp. 1319
(E.D. Wis. 1976)
• held that town’s refusal to rent high school building to college student
association lecture by controversial speaker (Angela Davis) was content
regulation in violation of Am. I Speech
+ cf. Martin-Trigona v. University of New Hampshire, 685 F. Supp. 23, 47 Ed.Law
Rep. [173] (D.N.H. 1988)
• held that public IHE’s failure to invite a candidate to presidential debate did
not violate his Am. I Speech26
• AD HOC RESTRICTIONS
- Pickings v. Bruce, 430 F.2d 595 (8th Cir. 1970)
• held that public IHE’s administrative sanction (charter suspension) of student
organization for inviting controversial speaker violated Am. I where no proof
of substantial and material disruption
+ Associated Students of Western Kentucky v. Downing, 475 F.2d 1132 (6th Cir.
1973), cert. denied, 414 U.S. 873 (1973)
• summarily upheld constitutionality (Am. I Speech) of public IHE's cancellation
of joint program showing experimental films
- Brown v. Board of Regents, 640 F. Supp. 674, 34 Ed.Law Rep. [478] (D. Neb.
1986)
• held that public IHE 's cancellation of controversial film due to legislator's
threat of protest demonstration and budgetary retaliation violated Am. I even
though not a traditional public forum
(+/-) Cummins v. Campbell, 44 F.3d 847, 97 Ed.Law Rep. [60] (10th Cir. 1994)
• upheld qualified immunity of public IHE due to possible Est. Cl. (excessive
entanglement) problem and also upheld attorneys’ fees to student association
only up to day before university reversed its decision to cancel showing of
controversial religious film
- Burnham v. Ianni, 899 F. Supp. 395, 104 Ed.Law Rep. [178] (D. Minn. 1995),
further proceedings, 119 F.2d 668, 120 Ed.Law Rep. [124] (8th Cir. 1997)
• ruled that public IHE’s removal of sexually- or violence-related photos from
hallway display case, which was nonpublic forum, was an impermissible Am. I
(Speech) content-based restriction and that chancellor did not have qualified
immunity
(-) Andre v. Castor, 963 F. Supp. 1158, 118 Ed.Law Rep. [954] (M.D. Fla. 1997)
• rejected dismissal of student’s Am. I (Speech) suit against public IHE’s seizure
of student’s sexually explicit films shown in open-forum courtyard
• INSTITUTIONAL SUPPORT
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(-) Swope v. Lubbers, 560 F. Supp. 1328, 10 Ed.Law Rep. [1021] (W.D. Mich.
1983)
• granted preliminary injunction for public IHE students who challenged refusal
to transfer funds for showing an X-rated film -- strict scrutiny under Am. I
(Speech)
STUDENT DEMONSTRATIONS27
• REGULATIONS28
(+) Bayless v. Martine, 430 F.2d 873 (5th Cir. 1970), cert. denied, 406 U.S. 930
(1972)
• affirmed denial of preliminary injunction, thereby rejecting student’s
overbreadth challenge of long-standing public IHE’s regulations requiring
minimum of 48 hours advance notice and conformance with certain criteria for
demonstrations
+ Sword v. Fox, 446 F.2d 1091 (4th Cir. 1971), cert. denied, 404 U.S. 994 (1971)
• upheld, as not being overbroad, public IHE’s regulation that denied right to sitin only in buildings containing classrooms
+ Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992 (5th Cir. 1975)
• upheld constitutionality (Am. I Speech) of public IHE’s suspension and
disciplinary regulation that met the Tinker test
+ State v. Ybarra, 550 P.2d 763 (Or. App. 1976)
• upheld public IHE’s prohibition against students maintaining tent on library
lawn -- not considered to be symbolic speech (for plight of farm workers)
- Iranian Students Ass'n v. Edwards, 604 F.2d 352 (5th Cir. 1979)
• upheld award of attorney fees and costs where public IHE forbade marches by
unrecognized student organizations -- consent agreement to delete recognition
requirement and affirming Am. I right of peaceful protest
- Shamloo v. Mississippi State Bd. of Trustees, 620 F.2d 516 (5th Cir. 1980)
• held that public IHE regulation requiring students to receive authorization for
any demonstration three days beforehand and only allowing those of a
wholesome nature violated Am. I overbreadth
+/- Students Against Apartheid Coalition v. O'Neil, 660 F. Supp. 333, 40 Ed.Law
Rep. [167] (W.D. Va. 1987), connected case, 838 F.2d 735, 44 Ed.Law Rep.
[137] (4th Cir. 1988)
• held that lawn use regulations precluding brief, undamaging erection of
shanties in specified part of campus to protest apartheid violated Am. I, but
upheld constitutionality of revised regulations (which defined "structure" and
omitted "extended presence")
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+ Salehpour v. University of Tennessee, 159 F.3d 199, 130 Ed.Law Rep. [418] (6th
Cir. 1998), cert. denied, 119 S. Ct. 1763 (1999)
• upheld public IHE’s application of “last row” rule against (Iranian) dental
student, ruling that his expression was unprotected under Am. I speech
• AD HOC RESTRICTIONS
+ Bright v. Nunn, 448 F.2d 245 (6th Cir. 1971)
• rejected Am. Speech and Assembly challenges to actions of public IHE
president (e.g., restrictions on evening mass assemblies) and state governor
(e.g., intervention of national guard and state police units) to quell disturbances
on campus
+ People v. Witzkowski, 357 N.E.2d 1348 (Ill. App. 1976)
• upheld restrictions on public IHE students’ antiwar protest demonstration
where they interfered with and obstructed use of the student union
+ Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977)
• ruled that president of public IHE (Kent State University) satisfied the heavy
burden of decision to ban campus assemblies in wake of widespread violence
- Aryan v. Mackey, 462 F. Supp. 90 (N.D. Tex. 1978)
• held that public IHE’s prohibition against (Iranian) students wearing masks
during a campus demonstration violated Am. I where there was no concrete
evidence of likely violence
+/- University of Utah Students Against Apartheid v. Peterson, 649 F. Supp. 1200,
36 Ed.Law Rep. [1194] (D. Utah 1986)
• modified public IHE removal order, limiting it to requiring student protesters to
make anti-apartheid "shanties" portable so they could be removed each night
due to increased violence and protection costs
+ Auburn Alliance for Peace and Justice v. Martin, 684 F. Supp. 1072, 46 Ed.Law
Rep. [1153] (M.D. Ala. 1988), aff’d mem., 853 F.2d 931, 48 Ed.Law Rep. [398]
(11th Cir. 1988)
• upheld constitutionality (Am. I Speech) of public IHE's prohibition of
overnight, week-long camp-out to protest foreign policy while offering
extended hours and alternate site
• INSTITUTIONAL DISCIPLINE29
+ Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), cert.
denied, 398 U.S. 965 (1970)
• upheld suspension of two public IHE students who participated in disruptive
and potentially violent demonstration (Tinker)
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- Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969)
• affirmed that public IHE’s “misconduct” standard, which was the basis for
suspending students who participated in a disruptive demonstration, violated
Am. I overbreadth (and Am. XIV vagueness)
+ Norton v. Discipline Comm. of East Tennessee State Univ., 419 F.2d 195 (6th
Cir. 1969)
• upheld public IHE’s suspension of students who distributed literature for the
purpose of causing material disruption
+ Siegel v. Regents, 308 F. Supp. 832 (N.D. Cal. 1970)
• upheld, as constitutional (Am. I Speech), public IHE’s expulsion of student
whose public speech in a park resulted in a student riot
+ Speake v. Grantham, 317 F. Supp. 1253 (S.D. Miss. 1970)
• rejected Am. I Speech and the other (and Am. IV search and Am. XIV equal
protection) claims of public IHE students suspended for participation in
campus demonstrations and possessing leaflets falsely reporting that classes
were suspended
+ Sill v. Pennsylvania State Univ., 318 F. Supp. 608 (M.D. Pa. 1970)
• ruled that the public IHE’s open expression rule, which was the grounds for the
suspension of students who participated in a sit-in, was not violative of Am. I
overbreadth (or Am. XIV vagueness)
+ Bistrick v. University of South Carolina, 324 F. Supp. 942 (D.S.C. 1971)
• rejected Am. I Speech and Ass’n challenge of public IHE student suspended for
refusing to end “take-over” of campus building
+ Center for Participant Educ. v. Marshall, 337 F. Supp. 126 (N.D. Fla. 1972)
• upheld suspension of student with history of university disruption who openly
defied valid public IHE regulation
+ Braxton v. Municipal Court, 109 Cal. Rptr. 897 (1973)
• upheld constitutionality of state penal statutes that authorized summary
exclusion at public IHE of a student or nonstudent where substantial and
material threat to orderly operation -- not overbroad as applied
+ Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972)
• upheld, as not violating Am. I Speech, public IHE’ s suspension of athletes
from football team for announced intent to wear armbands in protest of racially
discriminatory practices of opposing religious IHE -- acceding to their demands
would violate Est. Clause (Tinker)
+ Furumoto v. Lyman, 362 F. Supp. 1267 (N.D. Cal. 1973)
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• upheld discipline of students who disrupted an Engineering class of Dr.
Schockley (allegedly racist professor) to demand that he publicly debate his
views on racial genetics
+ Kister v. Ohio Bd. of Regents, 365 F. Supp. 27 (S.D. Ohio 1973), aff’d mem.,
474 U.S. 1117 (1974)
• upheld constitutionality (including overbreadth and prior restraint) of state
statute that authorized suspension and expulsion of any student arrested or
convicted of specified criminal offenses committed on or affecting persons or
property of a public IHE
(-) Hysaw v. Washburn Univ., 690 F. Supp. 940, 48 Ed.Law Rep. [554] (D. Kan.
1987)
• refused public IHE’s motion for summary judgment, thereby preserving
possibility of Am. I Speech claim of black football players who had been
removed from team after boycotting practice to protest racial mistreatment in
football scholarships
+ Rosenfeld v. Ketter, 820 F.2d 38, 40 Ed.Law Rep. [53] (2d Cir. 1987)
• upheld, as not violating Am. I Speech or Ass’n, suspension order prohibiting
student from participating in any university activity or entering any university
property
• CRIMINAL ACTION
- Hess v. Indiana, 414 U.S. 405 (1973)
• overturned arrest, under disorderly conduct statute, of student who participated
in campus demonstration and who used foul language in threat to re-take a
public street -- violation of Am. I Speech
- cf. Spence v. Washington, 418 U.S. 405 (1974)
• held that conviction of student for displaying flag upside down, and with peace
symbol attached, in apartment window as antiwar protest was a violation of
Am. I Speech
+ Adibi-Sadeh v. Bee County College, 454 F. Supp. 552 (S.D. Tex. 1978)
• upheld, as not violating Am. I Speech or Assembly, arrest of students who
refused to disperse from classroom (gym) area after repeatedly being asked to
leave -- substantial and material interference with operations
+ Commonwealth v. Bohmer, 372 N.E.2d 1381 (Mass. 1978)
• upheld constitutionality of state criminal statute prohibiting willful conduct that
disturbs or interrupts a school (here private IHE where students entered
classrooms, refused to leave, and called names)
- Ghafari v. Municipal Court, 150 Cal. Rptr. 813 (Ct. App. 1978)
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• held that state statute criminally sanctioning the wearing of masks in public
places violated Am. I overbreadth
+ Commonwealth v. Ruddock, 520 N.E.2d 501, 45 Ed.Law Rep. [1221] (Mass.
App. 1988)
• upheld criminal conviction of student for wanton injury to auto during antiapartheid demonstration, summarily dismissing any connection to Am. I
Speech
+ Wilson v. Texas, 777 S.W.2d 823, 56 Ed.Law Rep. [672] (Tex. App. 1989)
• ruled that student, who was convicted for participation in take-over of
president's office, waived his Am. I (overbreadth) defense by not raising it with
sufficient specificity
+ Arnold v. State, 853 S.W.2d 543, 83 Ed.Law Rep. [851] (Tex. Ct. App. 1993)
• upheld criminal conviction of students who disrupted president's office,
rejecting their overbreadth (and vagueness) challenge(s)
ACADEMIC PROGRAMS
• ASSIGNMENT OF GRADUATE AND TEACHING ASSISTANTS (GAs and TAs)
+ Naragon v. Wharton, 737 F.2d 1403, 18 Ed.Law Rep. [574] (5th Cir. 1984)
• upheld transfer to nonteaching assignment of GA who had homosexual
relationship with a student -- not motivating or substantial factor
+ Kelleher v. Flawn, 761 F.2d 1079, 25 Ed.Law Rep. [81] (5th Cir. 1985)
• upheld transfer of TA to nonteaching duties after she refused to cooperate with
department chairperson re approval of her course tests, applying Mt. Healthy
test to her Am. I challenge
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• SELECTION FOR ROTC
+ Blameuser v. Andrews, 630 F.2d 538 (7th Cir. 1980)
• upheld denial of admission into advanced course in ROTC (at private IHE) on
basis of student's belief in white supremacy (Nazi sympathizer) -- protected
expression but compelling justification in terms of effective leadership
• DRAMA COURSES
- DiBona v. Matthews, 269 Cal. Rptr. 882, 60 Ed.Law Rep. [559] (Ct. App. 1990),
cert. denied, 498 U.S. 998 (1990)
• held that cancellation, based on community religious complaints, of drama
course in which students were to produce and perform a controversial play
violated Am. I Speech
• ART PROGRAMS
+ Lahme v. University of Southwestern Louisiana, 692 So.2d 541, 117 Ed.Law
Rep. [1150] (La. App. 1997)
• upheld constitutionality (Am. I Speech) of removal of racially and sexually
offensive student art work from location in view of your children to an alternate
area of campus
+ Hennessy v. City of Melrose, 194 F.3d 237, __ Ed.Law. Rep. [ ] (1st Cir.
1999)30
• upheld constitutionality (Am. I. Speech) of public IHE’s discontinuance from
the teacher certification program of a student-teacher who dogmatically and
disruptively expressed his religious views during his student teaching
practicum
• RESEARCH
+ In re Grand Jury Proceedings, 5 F.3d 397, 85 Ed.Law Rep. [1020] (9th Cir. 1993)
• held that there is no "scholar's privilege" akin to that of a reporter, under Am. I
Press/Speech (or under federal common law) not to disclose confidential
information in a legitimate grand jury inquiry made in good faith
• GRADUATE PROGRAMS
- Alcorn v. Vaksman, 877 S.W.2d 390, 91 Ed.Law Rep. [1201] (Tex. App. 1994)
• held that public IHE violated Am. I. Speech by dismissing student from
doctoral program for his outspoken views on university policies and current
political issues
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+ Siblerud v. Colorado State Bd. of Agriculture, 896 F. Supp. 1506 (D. Colo. 1995)
• ruled that public IHE’s dismissal of doctoral student for representing in
submission to academic journal that article was based on dissertation in
progress, despite being instructed not to do so, did not violate Am. I Speech
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(-) Qvyjt v. Lin, 953 F. Supp. 244, 116 Ed.Law Rep. [601] (N.D. Ill. 1997)
• rejected public IHE’s motion for summary judgment on doctoral student’s Am.
I Speech claim that his dismissal, purportedly for failure to make satisfactory
progress toward degree, was retaliation for alleging misconduct by his doctoral
adviser
(-) Davis v. Goode, 995 F. Supp. 82, 125 Ed.Law Rep. [664] (E.D.N.Y. 1998)
• denied public IHE’s motion to dismiss law student’s claim that professor gave
him a low grade in retaliation for his student newspaper article criticizing the
professor
OTHER
• CHAPEL ATTENDANCE
- Anderson v. Laird, 466 F.2d 283 (D.C. Cir. 1972), cert. denied, 409 U.S. 1076
(1972)
• held public IHEs' (federal military academies') compulsory chapel attendance
violated Am. I Speech (and Est. + FE clauses)
• LEGAL SERVICES
+ Student Gov't Ass'n v. Board of Trustees, 868 F.2d 473, 52 Ed.Law Rep. [24]
(1st Cir. 1989)
• held that public IHE's decision to terminate legal services organization for
students did not violate Am. I (Speech and Ass'n) -- at most a "limited public
forum"
• HATE SPEECH REGULATIONS31
- Doe v. University of Michigan, 721 F. Supp. 852, 56 Ed.Law Rep. [821] (E.D.
Mich. 1989)
• held that anti-discrimination policy was overbroad for sweeping within its
scope a significant amount of verbal behavior protected by Am. I Speech
- UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1163, 70 Ed.Law Rep. [802]
(E.D. Wis. 1991)
• rejected as unconstitutionally overbroad (and vague) public IHE rule that
prohibited students from directing discriminatory epithets at particular groups
with intent to demean them and create a hostile educational environment
- Dambrot v. Central Michigan Univ., 55 F.3d 1177, 100 Ed.Law Rep. [869] (6th
Cir. 1995)
• held that public IHE's discrimination harassment policy was unconstitutionally
overbroad (and void for vagueness) on its face
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• RECORDS
+ Norwood v. Slammons, 788 F. Supp. 1020, 74 Ed.Law Rep. [1128] (W.D. Ark.
1991)
• rejected Am. I (Speech) right of general public access to the disciplinary or
investigating records of a public IHE
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Footnotes
For the first part in this series, see Perry Zirkel, The First Amendment and Higher
Education Students: Part I, The Religion Cases, 138 Ed.Law Rep. 983 (1999).
2 This Part includes those based on the overbreadth doctrine, which is rooted in
First Amendment expression. It also includes those cases where the plaintiff’s interest is
religious but the claim is not premised on either of the two religion clauses. See infra
notes 5, 14, and accompanying text. However, it does not include cases based on the
constitutional right to privacy where the First Amendment is not specified. See, e.g.,
Porten v. University of San Francisco, 134 Cal. Rptr. 839 (Ct. App. 1972)(state
constitution).
3 393 U.S. 503 (1969). For an interview with two of the opposing attorneys, see
Perry Zirkel, The 30th Anniversary of Tinker, 81 PHI DELTA KAPPAN 34 (1999).
4 The differences in the case entries herein typically are in terms of context (e.g.,
municipality rather than IHE) or basis (e.g., state statute rather than Am. I).
5 See, e.g., Rosenberger v. Rector and Visitors of Univ. of Virginia under "Student
Fees -- for Student Religious Groups."
6 See, e.g., Zurcher v. Stanford Daily under "Student Publications/Media -Confidentiality" and the case entries under "Student Demonstrations -- Criminal Action."
7 409 U.S. 169 (1972) under "Student Organizations -- Other Denials of
Recognition/Access."
8 For additional court decisions, which are based on the Establishment and/or Free
Exercise clauses, see Zirkel, supra note 1, at 985-86.
9 The further proceedings in this case focused on the student senate’s activities.
10 For the attorneys’ fees stage of this litigation, see Carroll v. Blinken, 105 F.3d 79
(2d Cir. 1997).
11 For a related case, see Student Government Ass’n v. Board of Trustees under
“Other -- Legal Services.”
12 For additional court decisions, which are based on the Establishment and/or Free
Exercise clauses, see Zirkel, supra note 1, at 987.
13 For Am. I Free Exercise cases concerning student fees for abortion-related
services, see id.
14 Illustrating the overlap with Part I (religion-related cases), the plaintiff in this
case was a religious evangelist.
15 For an overlapping category, see supra “Student Fees .”
16 For a more recent, successful suit based on a state statute prohibiting
discrimination against homosexuals, see Gay and Lesbian Law Students Ass'n v. Board of
Trustees, 673 A.2d 484, 108 Ed.Law Rep. [724] (Conn. 1996). For an additional court
decision, which was based on the Free Exercise clause, see Zirkel, supra note 1, at 987.
17 For a case concerning the application of this D.C. legislation to a private
sectarian IHE, see Zirkel, supra note 1, at 987.
18 For additional court decisions, which are based on the Establishment and/or Free
Exercise clauses, see Zirkel, supra note 1, at 987.
19 For a connected case, see Center for Participant Educ. v. Marshall under
“Student Demonstrations -- Institutional Discipline.”
20 This case is included herein because the plaintiffs, being alumni, are so closely
1
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related to the student context.
21 For a pre-Tinker student publication decision, see Dickey v. Alabama State Bd.
of Educ., 273 F. Supp. 613 (M.D. Ala. 1967), vacated as moot, 394 F.2d 490 (5th Cir.
1968). For a student publication decision based on lack of "state action," see Sinn v. Daily
Nebraskan, 829 F.2d 662, 41 Ed.Law Rep. [1273] (8th Cir. 1987). For a recent decision
regarding a campus radio station that only indirectly involved students, see Aldrich v.
Knab, 858 F. Supp. 1480, 94 Ed.Law Rep. [139] (W.D. Wash. 1994). For overlapping
recent caselaw, see supra “Student Fees -- For Other Particular Student Organizations.”
22 In an earlier decision in this case, the state's highest court ruled that the faculty
advisor for the student newspaper had third-party standing to challenge student senate's
termination of funding for student newspaper. State Bd. for Community Colleges v.
Olson, 687 P.2d 429, 20 Ed.Law Rep. [300] (Colo. 1982)
23 For the attorneys’ fees stage of this litigation, see Thonen v. Jenkins, 517 F.2d 3
(4th Cir. 1975).
24 For a pre-Tinker decision, where the court upheld the refusal of the law review
editors at a public IHE to accept an article that criticized the Supreme Court's
desegregation decision in Brown v. Board of Education, see Avins v. Rutgers, 385 F.2d
151 (3d Cir. 1967).
25 For pre-Tinker decisions, see Brooks v. Auburn Univ., 412 F.2d 1171 (5th Cir.
1969); Snyder v. Board of Trustees, 286 F. Supp. 934 (N.D. Ill. 1968); Dickson v.
Sitterson, 280 F. Supp. 486 (M.D.N.C. 1968). For additional court decisions, which are
based on the Establishment and/or Free Exercise clauses, see Zirkel, supra note 1, at 988.
26 This case is peripheral to this Part inasmuch as the plaintiff was a political
candidate, and the court did not mention the Am. I right of students as listeners.
27 For related pre-Tinker decisions, see Powe v. Miles, 407 F.2d 73 (2d Cir. 1968);
Steier v. New York State Educ. Comm'r, 271 F.2d 13 (2d Cir. 1959), cert. denied, 361
U.S. 966 (1960); Barker v. Hardway, 283 F. Supp. 228 (S.D. W. Va. 1968), aff'd mem.,
399 F.2d 638 (4th Cir. 1968), cert. denied, 394 U.S. 905 (1969); Zanders v. Louisiana
State Bd. of Educ., 281 F. Supp. 747 (W.D. La. 1968); Buttny v. Smiley, 281 F. Supp. 280
(D. Colo. 1968); Dickey v. Alabama State Bd. of Educ., 273 F. Supp. 613 (M.D. Ala.
1967), vacated as moot, 402 F.2d 516 (5th Cir. 1968); Hammond v. South Carolina State
College, 272 F. Supp. 947 (D.S.C. 1967); Grossner v. Trustees of Columbia Univ., 287 F.
Supp. 535 (S.D.N.Y. 1968); Goldberg v. Regents of Univ. of California, 57 Cal. Rptr. 463
(Ct. App. 1967); In re Bacon, 49 Cal. Rptr. 332 (Ct. App. 1969). For a related post-Tinker
decision, see supra Lieberman v. Marshall under “Student Organizations -- Other Denials
of Recognition/Access.”
28 See also infra the overlapping category of “Student Demonstrations -Institutional Discipline.”
29 Some of the case entries in this category could also fit under “Student
Demonstrations -- Regulation.” For a private IHE case based on Sec. 1981 and Sec. 1983
(Am. XIV due process), see Albert v. Carovano, 851 F.2d 561, 48 Ed.Law Rep. [35] (2d
Cir. 1988).
30 For a student-teaching case analyzed on religious grounds, see Zirkel, supra note
1, at 988.
31 See also supra “Student Organizations -- Fraternities.”