The College Fix

Here’s a weird one: A legal precedent long reviled by student press advocates is the basis for a ruling against an Arizona law that banned a Mexican American course from being taught in Tucson.

If that sounds complicated, it is.

The Student Press Law Center reports that the 9th U.S. Circuit Court of Appeals said the ethnic-studies law could be challenged as “government-sanctioned viewpoint discrimination” and was “overly broad in violation of the Due Process Clause,” because it banned courses “designed primarily for pupils of a particular ethnic group.”

(Some Republican lawmakers said that particular course taught Latino students they were historically subjugated and taught them to “hate other races,” according to an Atlantic profile.)

Where it gets weird is the 9th Circuit’s reliance on the Hazelwood precedent:

In Hazelwood, the [Supreme] Court held that censorship of students’ journalistic work did not violate the First Amendment so long as the school’s motivation was “reasonably related to legitimate pedagogical concerns.”

The Ninth Circuit decided that Hazelwood‘s “pedagogical concern” standard is also the proper legal yardstick for judging a school’s decision to withhold or discontinue curricular materials to which students demand access. That is an intriguing and not necessarily intuitive extension of the Hazelwood doctrine. That a student has a constitutional right to create and distribute her own speech in the school setting does not necessarily imply that the student has an equivalent stake in school-purchased books written by others — but the Ninth Circuit’s Arce decision now finds such a right implicit in the First Amendment right to receive information.

That puts student press advocates in the incredibly awkward position of cheering for a precedent they’ve been trying to mitigate for decades, at least in the Western states where the 9th Circuit exercises jurisdiction:

If a student can demonstrate that a school’s decision to confiscate a newspaper, rewrite a graduation speech or veto a student-chosen theatrical performance was based on political ideology, then (at least in the Western states subject to the Ninth Circuit’s jurisdiction) the student should prevail.

Read the story and Atlantic feature.

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