Policy, Practice and Intent: Forum Analysis and the Uncertain Status of the Student Press at Public Colleges and Universities

Abstract

The ruling of the United States Court of Appeals for the Seventh Circuit in Hosty v. Carter, which used forum analysis to determine that subsidized college and university student newspapers could be subject to prior review, raised a number of questions about the First Amendment rights of the student press. In Hosty and Kincaid v. Gibson federal courts of appeal ruled that university-subsidized publications are subject to forum analysis, and it is the policy, practices, and intent of administrators toward the publications that determine that forum status. However, the courts’ inconsistency in interpreting those policies and practices has led to a great deal of confusion. This article posits that consistently applying strict scrutiny to non-curricular student publications at public colleges and universities would reduce confusion and better protect the free expression rights of students.