Alabama Student Party v. Student Government Ass'n of the University of Alabama

RONEY, Chief Judge: This appeal is from a district court order upholding against a First Amendment challenge certain election regulations of the Student Government Association (SGA) of the University of Alabama. We affirm, although on slightly different grounds than the district court. Plaintiffs, individual students and an association of students interested in running for office, challenged regulations adopted by the SGA which (1) restricted the distribution of campaign literature to three days prior to the election and only at residences or outside of campus buildings; (2) prohibited distribution of campaign literature on election day; and (3) limited open forums or debates to the week of the election. The district court first determined that the SGA was a state actor subject to the same constitutional restrictions as the University itself. It then concluded that the challenged regulations met the reasonableness standard used to measure the constitutionality of speech restrictions in a non-public forum, using the framework established by Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Although we agree that the challenged regulations should be evaluated under a reasonableness standard, we do not believe that Perry is the proper vehicle to do so here. Rather, the cases applying Perry in a school setting deal with situations where some student group is seeking access, or funding, or some similar treatment that other student groups are already receiving. See, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). This analysis would more properly apply if the SGA was seeking access to the University campus for its elections. But that is not the case here. The United States Supreme Court has consistently reaffirmed the right of state universities to “make academic judgments as to how best to allocate scarce resources,” and to determine independently on academic grounds “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 278, 70 L.Ed.2d 440 (1981) (citations omitted). The central justification for a student government organization is that it supports the educational mission of the University. This deference to the educational mission of institutes of higher learning has resulted in the recognition of a “university’s right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education.” Id. at 277, 102 S.Ct. at 278. The proper analysis centers on the level of control a university may exert over the [1346] school-related activities of its students. The question is whether it is unconstitutional for a university, which need not have a student government association at all, to regulate the manner in which the Association runs its elections. That question is a different one than posed by election restrictions in a non-academic setting. For example, in Sellman v. Baruch College, 482 F.Supp. 475 (S.D.N.Y.1979), the court upheld requirements that candidates for student office register for 12 credits and maintain a 2.5 grade point average. In deciding the restrictions were reasonable and in furtherance of legitimate state interests, the court stated: The fundamental purpose of Baruch College is to educate students. Participation in student government is known to be a demanding and time-consuming activity that those interested in the progress and welfare of the students might reasonably conclude is detrimental to the academic progress of students whose grades are only barely above the passing rate. Id. at 480. Of course, academic qualifications for public office could never withstand constitutional scrutiny in the “real world.” But this is a university, whose primary purpose is education, not electioneering. Constitutional protections must be analyzed with due regard to that educational purpose, an approach that has been consistently adopted by the courts. Just last term, the Supreme Court reaffirmed that “the First Amendment rights of students in the public schools ‘are not automatically coextensive with the rights of adults in other settings.’ ” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986)) and that the rights must be considered in “light of the special characteristics of the school environment.” Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). See also, New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985) (holding in a Fourth Amendment context that “school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”) In Hazelwood, the Court found that the First Amendment was not violated when school officials withdrew two stories about divorce and teenage pregnancy from the school newspaper. There, the Court specifically addressed the right of educators to control school-related speech, holding that such control may be exercised “so long as their actions are reasonably related to legitimate pedagogical concerns.” 108 S.Ct. at 571. Similarly, in Bethel, the Court found that the First Amendment did not prohibit school officials from punishing a student who used “vulgar and lewd” speech, although not legally obscene, in a high school assembly or from determining that such speech would “undermine the school’s basic educational mission.” 478 U.S. at 685, 106 S.Ct. at 3166. Again, the Court recognized that the standards governing burdens on the speech of adults to an audience of adults may differ from the standards governing speech of students in public schools. Id. at 682, 106 S.Ct. at 3164. Even in Tinker, upholding the right of three students to wear black armbands in protest of the Vietnam war, the Court made clear that this right existed only so long as the students did not present a “material and substantial interference with schoolwork or discipline.” 393 U.S. at 511, 89 S.Ct. at 739. It is significant that the Court in Tinker also spoke in terms of “reasonableness.” The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. Id. at 513, 89 S.Ct. at 740 (emphasis added). Similarly, the Court noted that the record did not demonstrate that school authorities reasonably feared school disruption. Id. [1347] at 514, 89 S.Ct. at 740-41. Thus, the SGA rules ought to be assessed on the basis of their reasonableness as well. According to the depositions in this ease, the University views its student government association, including the election campaigns, as a “learning laboratory,” similar to the student newspaper or student yearbook. This “laboratory” allows students who “aspire to public service, public life, [and who] want to gain some experience and expertise in better understanding the way in which democracy functions,” an opportunity to learn how to work within the democratic process. These statements indicate that student government and the campaigns associated with it do not constitute a forum generally open to the public, or a segment of the public, for communicative purposes, but rather constitute a forum reserved for its intended purpose, a supervised learning experience for students interested in politics and government. It should be noted that the Supreme Court was mindful in Hazelwood of the distinct issues presented to it by the facts in that case and in Tinker. The Court recognized there is a difference between speech a school must tolerate and speech a school must affirmatively promote. In Ha-zelwood, the school could determine what was appropriate in a school-sponsored student newspaper when that newspaper was legitimately part of the learning experience, the curriculum, of the school. Certainly, the school was not required to establish a newspaper. Equally clear is that the mere establishment of the newspaper does not then magically afford it all the First Amendment rights that exist for publications outside of a school setting. In Tinker, the issue was distinct. There, the regulation selected out a particular message, which just happened to occur on school premises, for punishment. That is not before this Court. The University should be entitled to place reasonable restrictions on this learning experience. The district court concluded after a hearing that although the regulations were “rather narrow and limiting,” they were neither “unreasonable,” nor “arbitrary and capricious.” The district court noted that by promulgating such regulations, the University sought to minimize the disruptive effect of campus electioneering, an interest which the district court found to be legitimate. There was no evidence that the regulations were anything but viewpoint-neutral. The University judgment on matters such as this should be given great deference by federal courts. This Court should honor the traditional “reluctance to trench on the prerogatives of state and local educational institutions.” Regents of University of Michigan v. Ewing, 474 U.S. 214, 226, 106 S.Ct. 507, 514, 88 L.Ed.2d 523 (1985). The reason for this is that “[a]ca-demic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself.” Id. at 226 n. 12, 106 S.Ct. at 514 n. 12 (citations omitted). In the present case, and in other school cases raising similar First Amendment challenges, these principles translate into a degree of deference to school officials who seek to reasonably regulate speech and campus activities in furtherance of the school’s educational mission. Accordingly, the decision of the district court is AFFIRMED.