Fifth Circuit Notes Split re Need for Viewpoint Neutrality under Hazelwood

Per Chiras v. Miller, --- F.3d ----, 2005 WL 3367698 (5th Cir. Dec. 12, 2005):

A split exists among the Circuits on the question of whether Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), requires viewpoint neutrality. Compare Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 928 (10th Cir.2002) ("We hold ... that Hazelwood does not require educators' restrictions on school-sponsored speech to be viewpoint neutral.") and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in Kuhlmeier did not require that school regulation of school-sponsored speech to be viewpoint neutral.") with Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 830 (9th Cir.1991) ("Because their decision to limit access, whether wise or unwise, is reasonable and not an effort at viewpoint discrimination, the school district did not violate the first amendment in declining to publish Planned Parenthood's advertisements.") and Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) ("Hazelwood ... does not alter the test for reasonableness in a nonpublic forum such as a school but rather provides the context in which the reasonableness of regulations should be considered .... [T]here is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views.") Because we conclude that Hazelwood does not apply in this case, we do not consider whether Hazelwood requires viewpoint neutrality.