2nd Circuit reinstates N.Y. campus newspaper’s lawsuit

Wednesday, July 25, 2007

A college president violated the First Amendment when she cancelled a student government election because of information published in a school newspaper, the 2nd U.S. Circuit Court of Appeals has ruled.

“We agree that, at a minimum, when a public university establishes a student media outlet and requires no initial restrictions on content, it may not censor, retaliate, or otherwise chill that outlet’s speech, or the speech of the student journalists who produce it, on the basis of content or viewpoints expressed through that outlet,” Judge Guido Calabresi wrote in the court’s opinion in Husain v. Springer on July 13.

In a 2-1 decision, the court remanded the case to a district court for a jury trial to determine whether College of Staten Island President Marlene Springer should have been granted qualified immunity by the district court.

Springer announced in a memorandum the nullification of the 1997 election after the May edition of the College Voice was “substantially devoted to supporting the endorsed slate of candidates.” She said in this statement that the 5,000 copies of the May issue were “thinly veiled student activity fee funded piece(s) of campaign literature for the Student Union slate.”

The College, which is part of the City University of New York system, has a student elections review committee that develops election procedures and certifies election results. Rule 2 of the committee’s approved election rules states that the “campus newspaper may not be used as posters on walls, bulletin boards, etc. and may not be used as a means to distribute campaign flyers.” The College Voice, which is primarily funded through student-activity fees, endorsed an organization called the “Student Union” before the spring 1997 election. Several members of the College Voice staff were among the Student Union candidates.

The May issue in question featured a photograph of the Student Union candidates on the front page under the headline, “Vote Student Union!” The organization’s 12-point platform covered the back page of the newspaper, and platform statements and editorials were included inside the edition. The issue also contained articles unrelated to the election on international affairs, New York city politics and campus news.

The issue was distributed on campus despite complaints from student government officers. At the beginning of the election period, the election committee motioned to close the polls because of the alleged rule violation by the newspaper, but Springer told students she would determine the validity of the election’s results after its conclusion.

On May 6, Springer nullified the results, in which all of the Student Union’s candidates had won positions. (All the Student Union candidates also won positions in the second election held later that month.)

Though the district court ruled that Springer had violated the First Amendment rights of the students involved in the newspaper and election, it declared she was entitled to qualified immunity because it was not clear in May 1997 that her actions at the time violated the First Amendment.

However, on appeal the 2nd Circuit said, “There can be no question that a reasonable official in President Springer’s position should have been aware that the College Voice was a public forum, limited only with respect to the speakers who could participate and not with regard to the subject matters on which the newspaper could discuss, and thereby entitled to protection under Supreme Court law governing such fora.”

Judge Calabresi later wrote that a jury might find that Springer’s actions were reasonable, and therefore remanded the case for a jury trial.

Judge Dennis Jacobs disagreed with the majority, writing in his dissent, “President Springer’s decision to re-run the election was not unreasonable in light of clearly established law.”

He noted that while many cases had come before the court concerning student press, “A school administrator should not have to become a constitutional-law professor in order to save herself from personal liability when giving a needed lesson in fair play.”

Springer retired from the college in 2006, after serving as president for 13 years.

Courtney Holliday is a junior majoring in economics and public policy at Vanderbilt University in Nashville.

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