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9th Circuit: College has right to keep 'political neutrality'

By David L. Hudson Jr.
First Amendment Center research attorney

A community college’s interest in maintaining “political neutrality” and student safety supersedes an instructor’s First Amendment rights, the 9th U.S. Circuit Court of Appeals has ruled.

In an April 6 opinion, a three-judge panel in Hudson v. Craven found in favor of Clark College in Vancouver, Wash., against former adjunct economics instructor Barbara Hudson. The justices denied Hudson’s First Amendment claim that she was retaliated against for engaging in protected freedom of assembly activity by traveling with some of her students to protest rallies at the 1999 World Trade Organization meetings in Seattle.

Some First Amendment experts say the case is significant in part because the 9th Circuit relied on a U.S. Supreme Court opinion involving high school students in support of the community college’s interest in maintaining political neutrality.

Hudson alleged that Clark College administrators fired her for her First Amendment-protected activity of attending the protests with her students. She grounded her claim primarily as one involving freedom of assembly and the related right of freedom of association.

Hudson informed James Craven, the head tenured economics professor, that she planned to attend a WTO protest with some of her students as a field trip. Craven and other school officials said they expressed concerns about students’ attending such an event. They cited safety and pedagogical-based reasons, including the importance of the college’s appearing politically neutral, for their apprehension.

In response, Hudson said she would not call the activity a field trip or make attendance mandatory. She did include questions related to the WTO controversy on an exam. After she attended the event with several students, Craven recommended that her contract not be renewed.

Hudson sued Craven and four other administrators at Clark College. A federal district court dismissed the lawsuit, finding that the college’s interests outweighed Hudson’s First Amendment interests under the balancing test developed by the U.S. Supreme Court in its 1968 decision involving public-employee free speech, Pickering v. Board of Education.

In Pickering, the Supreme Court wrote: “The problem in any case is to arrive at a balance between the interests of the teacher, as citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The Supreme Court has established a two-part test derived from Pickering and its 1983 decision Connick v. Myers. Under the Pickering-Connick test, a public employee must first establish that his or her speech touches on a matter of public concern. Then the court balances the employee’s free-speech rights against the government employer’s interest in efficiency.

The 9th Circuit applied the Pickering-Connick test to Hudson’s claim even though her claim was a hybrid one of freedom of speech and association. “The speech and association rights at issue here are so intertwined that we see no reason to distinguish this hybrid circumstance from a case involving only speech rights,” the panel wrote.

“It didn’t strike me that Pickering should not be applied to this freedom of association claim,” said Aaron Caplan, a staff attorney with the ACLU of Washington, which was not involved in the Hudson case. “It makes sense to apply Pickering when you are talking about an employee’s right to speak on issues of public affairs when the employee is joining together with other people. It is a similar analysis. The one place where it could be a problem is if a government employer were to say that a person’s mere membership in an organization is something that could be grounds for discipline. … I think the Pickering framework can generally be used for many free-association cases and a proper application of the test can generate good results.”

Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, agreed: “I am not surprised by the readiness of the 9th Circuit to join a majority of others in extending Pickering to freedom of association. I've always assumed it would encompass the right to petition, for example, which the facts of Pickering almost invoked. Indeed, I wonder why any circuit would draw the line at ‘speech’ among First Amendment freedoms that a public employee might assert to the agency's consternation.”

The 9th Circuit determined that Hudson’s protest activity qualified as a matter of public concern. “The WTO meeting and the issues surrounding it were quintessentially matters of public concern,” the panel wrote. “That this event was newsworthy and had quite literally excited widespread public interest was not in dispute.”

However, the appeals court ruled in favor of the community college officials when it reached the balancing prong of the Pickering-Connick test. The appeals court agreed that the officials had “compelling interests” in student safety and “pedagogical oversight.”

The appeals court reasoned that “on balance the legitimate interests of Clark College as an employer and educational institution outweigh those of Hudson to participate in the de facto field trip with her students.”

On the safety issue, the appeals court wrote: “The potential for violence at the rallies was more than a wild card and the College was more than reasonable in being apprehensive about its students and faculty attending protests of such novelty and scale in the face of warnings about rioting.”

Then, the panel also said that Clark College had an interest in “maintaining its political neutrality as an educational institution.” The panel backed up this statement by citing the U.S. Supreme Court’s 1988 high school student newspaper case Hazelwood School District v. Kuhlmeier.

“Hazelwood arose in a high school and not a community college setting, but that does not change the fact that the decision of a public institution of higher education to avoid sanctioned political entanglement is a judgment that is best left to the institution,” the 9th Circuit panel wrote.

Caplan was not bothered by the 9th Circuit’s citation of Hazelwood. “The college has an interest in not being perceived as biased on an issue of political controversy,” he said. “I think the court could have made the statements it did without citing Hazelwood. The case certainly doesn’t deal with the holding of Hazelwood.

However, other First Amendment experts were troubled by the panel’s reliance on Hazelwood.

“The Hazelwood citation is misplaced … because the case deals only with secondary education and has no logical role in higher education,” said O’Neil, who is a law professor at the University of Virginia. “There is serious doubt whether such an interest [in political neutrality] deserves deference; ‘safety’ is undeniable, but ‘political neutrality’ as an asserted college interest seems to me to invite a broad array of restraints on faculty (and student) speech.”

Robert Richards, founding co-director of the Pennsylvania Center for the First Amendment, termed the reliance on Hazelwood “quite troubling.” He called the college’s asserted interest in political neutrality “ridiculous,” and said part of the decision’s reasoning “flies in the face of academic freedom.”

“Professors are paid to espouse a wide variety of views and universities are supposed to be marketplaces of ideas,” Richards said. “No individual faculty members represent the viewpoint of the university. A whole notion of academic freedom is that faculty and students express a wide array of viewpoints.”

For her part, Barbara Hudson said she would appeal the decision.

“The Constitution and the Bill of Rights trump any rules that a community college might come up with relative to their labor policies,” she said. “Saying that a college has an educational interest in avoiding matters of political controversy is just terrible. How can you educate college students unless you tell them something about life?”


Free speech on public college campuses

Public employee speech

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