October 24, 2012
Complaint Sufficiently Alleges Constitutional Violations Against University Officials
A three-judge panel of the Ninth Circuit ruled in OSU Student Alliance v. Ray that a conservative student newspaper at Oregon State sufficiently alleged constitutional claims against university officials after they removed the newspaper's distribution bins from around campus and limited the locations where the newspaper could replace the bins. The ruling reverses a lower court ruling dismissing the case, allows the plaintiffs to amend their complaint as to certain defendants, and means that the case will move forward on the merits.
The case arose when Oregon State officials removed distribution bins of the conservative Liberty newspaper, published by the Student Alliance. Officials did not similarly remove distribution bins of the official student newspaper, the Daily Barometer, or outside newspapers (like USAToday). Officials claimed that they were enforcing an unwritten policy prescribing the acceptable campus locations for outside newspaper distribution bins. Officials treated the Liberty as an outside newspaper, even though it has a student editorial staff, because its funding came almost exclusively from outside sources--donations and advertising. In contrast, the Daily Barometer received university funding through the student government. Officials said that this distinction explained why they treated Liberty bins differently than Daily Barometer bins, but it obviously didn't explain why it treated Liberty bins differently than USAToday bins.
The newspaper sued under 42 U.S.C. Sec. 1983, arguing that four university officials--the president, a vice-president, the vice-provost for student affairs, and the director of facilities services--violated their rights to free speech, due process, and equal protection. The district court dismissed the claims for injunctive and declaratory relief after the school changed its policy; and it dismissed the claims for damages because the plaintiffs didn't plead that any of the four defendants participated in the confiscation of the newsbins.
The Ninth Circuit reversed. It ruled that the plaintiffs sufficiently pleaded that the certain defendants "caused" a "deprivation of federal right" and remanded to allow the plaintiffs to replead as to others.
As to the deprivation, the court said that the OSU campus is "at least a designated public forum," that the unwritten "policy" left university officials with unbridled discretion (alone enough to doom the policy), and that any standard (identified only post hoc) that distinguished between on-campus and outside publications bore no relationship to the school's interest in reducing clutter around campus. "OSU's standardless policy cannot qualify as a valid time, place, and manner restriction." Op. at 12778. And the plaintiffs correctly pleaded that it was viewpoint discrimination.
The court also said that the plaintiffs sufficiently pleaded an equal protection violation, because they pleaded that the university treated them differently than a similarly situated newspaper in a way that trenched on a fundamental right (free speech). It also said that the plaintiffs adequately pleaded that the defendants removed their bins without prior notice in violation of due process.
As to causation, the court recognized that "[s]ome of the plaintiffs' claims raise thorny questions under Iqbal." Claims against the director of facilities management were easiest, because that official was directly involved in the confiscation and relocation policy. But the court said that claims against the president and vice-president (the director's supervisors) had to show the requisite intent under Iqbal. The court said that the plaintiffs sufficiently pleaded that the president and vice-president knew of the director's violations of free speech--that knowledge (and not specific intent) is the relevant state of mind required for a free speech violation. (Recall that the Supreme Court required the plaintiffs to plead specific intent for equal protection and free exercise violations in Iqbal.)
The court wrote that the complaint sufficiently tied the director of facilities to the due process violation--that he was responsible for the unwritten bin policy, and that the confiscation happened pursuant to the policy--but that it didn't sufficiently tie the president and vice-president to the policy.
As to the vice-provost, the court said that the complaint didn't sufficiently allege that he knew of the free speech violations and that he wasn't sufficiently tied to the due process violation.
The court remanded the case to allow the plaintiffs to amend their complaint to bring in the president and the vice-president on the due process claims and the vice-provost on any claims.
Judge Ikuta dissented in part, arguing that the majority's approach as to the president and vice-president "resurrects the very kind of supervisory liability that Iqbal interred."
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