CUNY President May Be Liable for Student Election Brouhaha
Friday, July 13th by Robert LoblawHusain v. Springer, 04-5250 (2nd Cir., July 13, 2007)
Student government may be a joke on many colleges campuses, but cases like this one show that it is no laughing matter. Defendant Marlene Springer, the president of the City University of New York, canceled a student election after one of the college papers devoted a portion of its pre-election issue to endorsing a slate of candidates and reprinting their platforms. Springer concluded that this particular issue of the College Voice was “a thinly veiled student activity fee funded piece of campaign literature” for the endorsed candidates.
Although the endorsed candidates won a subsequent election, the College Voice reduced its coverage of students elections in order to avoid angering the administration and hurting its preferred candidates. Meanwhile, several editorial board members sued President Springer (along with the student government and various administrators), seeking an injunction that would allow the College Voice to endorse candidates for future elections without reprisal, along with damages.
The district court granted summary judgment to all defendants, and the key issue for this Second Circuit appeal is whether President Springer is entitled to qualified immunity on the plaintiffs’ First Amendment claims. Surveying the law from other circuits, the Second explains that the courts are split as to how much First Amendment protection to give college newspapers. The Fourth, Fifth, and Eighth Circuits have held that college newspapers are limited public forums for which content restrictions are only valid if the content “threatens the maintenance of order at the university.” Meanwhile, the Sixth and Seventh Circuits take a narrower view, looking at the context to determine whether the university has made its newspaper a limited public forum or simply a student activity that can be regulated along with other student activities. But all of the circuits to consider the issue are in agreement that student newspapers have certain basic protections:
[W]hen a public university creates or subsidizes a student newspaper and imposes no ex ante restrictions on the content that the newspaper may contain, neither the school nor its officials may interfere with the viewpoints expressed in the publication without running afoul of the First Amendment.
Using this rule as a baseline, the Second holds that Springer violated the newspaper’s First Amendment rights by cancelling the election, and that this cancellation had a chilling effect on the paper’s exercise of its free speech rights. Moreover, the Court concludes that Springer cannot avail herself of qualified immunity, since it would have been clear to a reasonable person that her actions violated clearly established law. Although Springer may have viable defenses, these defenses are for the jury to consider, not for the district court to resolve at the summary judgment stage. Accordingly, the matter will proceed to trial.
Update: Thanks to uber-commenter Kip Esquire for pointing out the best part about this opinion: a dissent from Chief Judge Jacobs, which explains that he did not even read the majority opinion because this case is such a waste of time. Maybe the Chief has a point: the judiciary could save a lot of Lexis and Westlaw money if more judges decided cases based on their gut impressions of the parties.
July 13th, 2007 at 11:48 am
Be sure to check out the dissent, which dismisses the whole affair as “piffle” and “a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit.” I also like the reference to “Pol Pot-ism on Staten Island.”
July 13th, 2007 at 11:54 am
Also, the dissenter openly acknowledges that he didn’t even bother to read the majority opinion!
July 13th, 2007 at 8:06 pm
Judge Jacobs: I will not read judicial opinions …
In his dissent in Husain v. Springer, 04-5250 (2nd Cir., July 13, 2007) (covered at DotD here), Judge Dennis Jacobs of the Second Circuit explains why the majority should not have taken the free speech claims of a student newspaper…
July 14th, 2007 at 1:37 pm
Heck, why even bother with impressions. They could just use sex/race ? I mean, the road to bigotry passes right by anti-intellectualism.
I wonder if Jacobs would decide a criminal appeal in favor of the defendant that way? Or does this only apply when the state arguably impedes someone’s 1st amendment rights?
July 15th, 2007 at 12:13 am
[…] the merits, check out these posts at Decision of the Day and The Volokh Conspiracy. For commentary on Judge Jacobs’s disdain for the dispute before […]
July 16th, 2007 at 6:31 am
Chief Judge Jacobs wrote that he did not read the proposed majority opinion by Judge Calabresi. However, he says (with italics) that he did read the careful opinion of the district judge. The case was on the Second Circuit’s oral argument calendar, and there’s no notation to show that he was not present for that argument. We may fairly presume, then — and I challenge you to produce any basis other than speculation for disputing — that he read the record from the trial court and the parties’ briefs, and participated in the post-argument conference. It’s not uncommon for judges to prepare, or have their clerks prepare, pre-argument bench memos, so it’s likely that he had that from his own chambers, and he may have exchanged bench memos with other judges on the panel as well. But in any event, it’s very likely that by the time of the conference, when he (as senior active-status judge) would have made the opinion-writing assignment if he’d been in the majority, that he also knew in a fair amount of detail not only Judge Calabresi’s and Judge Walker’s ruling, but also the intended rationale for it (i.e., what was intended for the majority opinion).
It’s hugely amusing to me that you can paint him as sloppy when you clearly didn’t read his dissent to begin with, and had to have a commenter point out to you his genuinely extraordinary and provocative statement that he’d deliberately chosen not to read the majority opinion. But that’s a far, far cry from your conclusion that he decided the case based on his “gut impressions of the parties.”
July 16th, 2007 at 7:53 am
Beldar,
I haven’t read your comment but I wholeheartedly disagree with you. I’m not going to bother telling you why; suffice to say that you are crusty and long-winded and not worth my time.
October 26th, 2007 at 6:38 am
[…] Amendment curmudgeon, the one that Chief Judge Jacobs of the Second Circuit performed so ably back in July, and even quotes his line, “This is a case about nothing.” To her credit, she leaves […]
April 23rd, 2008 at 7:44 pm
[…] why speech in schools is so important. It is a breath of fresh air after decisions like this and this, in which judges have openly disdained students who pursue First Amendment crusades. The […]