State Board for Community Colleges & Occupational Education v. Olson

LOHR, Justice,

concurring in part and dissenting in part.

The majority concludes that respondent Judith Olson, a teacher at Pikes Peak Community College, has not demonstrated that her First Amendment right of academic freedom encompasses the use of the student newspaper, the Pikes Peak News (News), as an instructional device. The court holds, therefore, that Olson has no standing to complain of termination of funding for that newspaper. I respectfully dissent from that holding, based on my disagreement with the application of the law as set forth in the court’s opinion to the facts of this case. I concur, however, in part II C of the majority opinion, which holds that Olson should be accorded standing to challenge the funding decision as it affected the First Amendment rights of students at Pikes Peak Community College.

In her deposition, Olson described the relationship between the News and the journalism classes that she taught at Pikes Peak Community College. She characterized the News as a “motivational device” for beginning, intermediate and advanced *442classes in newspaper design. The publication of the News was a co-curricular activity, i.e., one that “runs along with classes.” Olson deposition at p. 4. Stories written as assignments in Olson’s journalism reporting classes were submitted to those members of the News editorial staff who were also in Olson’s classes, for in-class editing and submission to the full editorial staff of the News. Frequently these stories were printed in the News.1 Design class students worked during class on layout and makeup for the News, and most of the time News editorial staff accepted the class product without change. Olson also taught a libel law course for journalism students, and as faculty advisor for the News she reviewed the stories to be published to assure that libel and obscenity were avoided.

When the funding for the News was terminated, it was necessary to cease teaching newspaper design classes because, without practical application for the students’ skills, instruction in newspaper design is greatly handicapped.2 In place of newspaper design, Olson taught magazine design, a subject for which the Pikes Peak Fuse is a suitable vehicle. Olson testified, however, that knowledge of newspaper design is far more important to a journalism student than an understanding of magazine layout.

The majority acknowledges that the First Amendment protection of academic freedom encompasses the interests of a teacher in a public educational institution in choosing a particular pedagogical method for presenting the idea content of a course where the teaching method serves a demonstrable educational purpose. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Webb v. Lake Mills Community School District, 344 F.Supp. 791 (N.D.Iowa 1972); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970). The majority limits this right, however, to courses that are part of the official curriculum of the educational institution and characterizes the production and publication of the News as a student activity that is “not a part of the official curriculum at Pikes Peak Community College.” Slip op. at 18. In the context of this case, I think limitation of teaching method protection to exclude utilization of the News as a pedagogical method fails to give full scope to rights guaranteed by the First Amendment. The record shows that the News was financed by mandatory student fees allocated by the student senate and set forth in a budget approved by petitioner Pikes Peak Community College Council. Olson’s testimony established that publication of the newspaper was a critically important tool for teaching newspaper layout and that the process of preparation of the News had its inception and significant development in her classrooms. Moreover, Olson stated that instruction in newspaper format skills and in the importance of free expression cannot be separated.3 Under these circumstances, I would hold that Olson has made a showing of a legally protected First Amendment interest sufficient *443to establish standing when tested by a motion for summary judgment.

I would affirm the judgment of the court of appeals and remand the case to that court with directions to return the matter to the district court for further proceedings on Olson’s claim of violation of her First Amendment rights as well as for further proceedings in Olson’s complaint that the funding cutoff violated the First Amendment rights of the students.

. The News also printed student stories that did not have their inception in journalism classes.

. Olson testified, "It would be a disservice for a student to sign up for a course in newspaper design and not be able to assimilate the skills required for newspaper design and that is preventing me from performing academically in a credible fashion."

. Olson testified as follows at her deposition:

Q Do you believe your First Amendment rights have been harmed, impaired somehow, chilled by the action of the Student Senate in cutting off the budget to the newspaper?
A Well, as a professional in journalism who must set an example or be a proponent for First Amendment rights, certainly this is the case because if your students are not allowed to have the experience of successfully incorporating their skills development with practical experience simply because of the disagreement of content, that certainly speaks to the First Amendment. Certainly if your content is looked at, say, you know, they won’t fund it because of a content situation, that certainly is what the First Amendment is all about.
Q Well, specifically as opposed to the students, what First Amendment rights of yours—
A I don’t think I can separate myself and what was done from the students because the program and the publication was an integral part, interrelated, in other words. I don’t think they are two separate things.