A conservative student newspaper in Oregon won a First Amendment victory last week in a case that reinforces the Constitutional mandate for viewpoint-neutral policies at public colleges.
In OSU Student Alliance v. Ray, the 9th U.S. Circuit Court of Appeals ruled Oregon State University administrators could be held personally liable for discriminating against The Liberty, even though the school adopted an equal access policy as soon as the paper filed suit.
Toward the end of 2008, staff members at The Liberty, an independent, conservative alternative to the long-time OSU student newspaper The Daily Barometer, discovered the seven bins they used to distribute their paper around campus had disappeared. Because they had permission to have the bins on campus, the staffers through they must have been stolen by another student. They reported the incident to campus police, who determined OSU's Facilities Services department was responsible for trashing the bins without notifying any of the newspaper's personnel. They eventually found the bins, dumped in a heap, in a locked, on-campus storage yard.
When The Liberty's student editors contacted the Facilities Services department, they were told that the school was "catching up" on enforcing an unwritten policy that governed the placement of newspaper bins on campus. OSU officials did not, however, remove The Daily Barometer's 24 bins or the bins of other non-student-run publications that littered the campus. When The Liberty staffers retrieved their bins, they found damage to the boxes and more than 150 copies of the paper's most recent issue.
For months, The Liberty's editors attempted to negotiate with several university officials, including President Ed Ray, Vice President for Finance and Administration Mark McCambridge, Vice Provost for Student Affairs Larry Roper and Director of Facilities and Services Vincent Martorello. During the negotiations, administrators allowed the newspaper to place bins in only two campus locations, near the student center and bookstore.
Emails from OSU officials, included as exhibits in the court documents, showed they told the newspaper's editors The Liberty was an "off-campus" periodical because the university did not fund it, like it does The Daily Barometer. OSU's lawyer also explained during the months of negotiations that the bins were removed for "logistical reasons (including clutter and ADA accessibility issues)." He wrote that all periodicals other than the Daily Barometer were limited to placing bins near the campus' student center. However, OSU officials admitted that they had no written policy to support their decisions.
After failing to persuade administrators they had a right to equal access on campus, the OSU Student Alliance, the registered student organization that publishes The Liberty, and Executive Editor William Rogers filed suit. Lawyers from Alliance Defending Freedom represented Rogers and the organization.
"Students with viewpoints that don't happen to be favored by university officials shouldn't be silenced for their beliefs," ADF Litigation Staff Counsel Heather Gebelin Hacker said in a news release issued last week.
In response to the lawsuit, school officials immediately replaced the unwritten, discriminatory policy with a written policy that gave the student paper equal access to campus. They also filed a motion to dismiss the case. A district judge ruled that the students had suffered no constitutional harm, dismissing the case and the newspaper's claims for injunctive relief and damages.
But the 9th Circuit ruled the school's actions violated the students' constitutional rights and held administrators personally liable, sending the case back to the district court to assess damages.
In its opinion, the court declared any university policies that restrict student free speech are open to constitutional examination. OSU administrators' actions violated the First Amendment and strongly suggested "viewpoint discrimination" because their policy was unwritten, unannounced, had no history of enforcement, and had no fixed standard for distinction between The Daily Barometer and The Liberty.
"It materialized like a bolt out of the blue to smite The Liberty's, but not The Daily Barometer's, newsbins onto the trash heap," the opinion states.
The court also ruled OSU violated The Liberty's right to due process by confiscating the bins without prior notice: "Providing notice would have been as simple as flipping a page and making a phone call or sending an email. The Facilities Department's decision to forego this procedure in favor of summarily confiscating the newsbins - more like a 'thief in the night' than a 'conscientious public servant' - violated due process."
OSU has until the end of November to file a petition for rehearing at the appeals court. Otherwise, the case will go back to the district court for a summary judgment or trial. Hacker believes The Liberty has a good chance of ultimately winning the case: "OSU violated these students' rights by taking their bins out of nowhere, singling them out for discriminatory treatment, and keeping their papers off the majority of campus for several months until we filed the lawsuit. Based on the 9th Circuit's opinion, I am optimistic that the district court will come to the same conclusion."