Metropolitan News-Enterprise


Wednesday, October 24, 2012


Page 1


Court Allows Conservatives’ Rights Suit Against Campus Officials




A lawsuit charging Oregon State University with violating the civil rights of a conservative student group by confiscating their monthly newspaper and limiting its dissemination to two designated campus locations was reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.     

A divided panel said the OSU Student Alliance adequately alleged that President Ed Ray, Vice President For Finance and Administration Mark McCambridge, and Director of Facilities Services Vincent Martarello personally participated in the adoption of an illegal policy limiting the distribution of The Liberty, and that Martarello was also involved in illegal confiscation of copies of the paper.

The suit goes back to the 2008-2009 school year, when the alliance alleges the university removed seven outdoor newsbins from which they had distributed the paper and tossed them near a dumpster. The group said it initially thought the bins had been stolen, but eventually learned from campus police that the university had seized them because of the policy—of which the plaintiff was unaware and that had never before been enforced—limiting the locations from which “off-campus” publications could be distributed.  

Different Strokes

The policy did not apply to the official campus newspaper, The Daily Barometer, which was distributed throughout the campus. The alliance contended that as a student organization, it was not subject to the policy, but officials disagreed.

The alliance sued for damages and declaratory and injunctive relief, claiming free speech, due process, and equal protection violations. The declaratory and equitable claims were dismissed as moot after the university amended the policy, and the damages claim was dismissed for failure to state a claim against any of the named defendants, who also included Vice President for Student Affairs Larry Roper.

But Senior Judge A. Wallace Tashima, writing for the Ninth Circuit, said the alliance’s right to engage in “expressive conduct protected by the First Amendment” had clearly been violated, that they had been discriminated against, and that the complaint contained allegations that, if proven, would establish that Ray, McCambridge, and Martarello willfully violated their rights.

The panel upheld the dismissal of Roper from the suit.

Argument Rejected

Tashima rejected the defendants’ argument that as the university had provided a limited public forum that excluded non-compliant newsbins from the scope of permissible activities.

“This reasoning is circular: the contention is that the policy placed a limitation on the forum, and that the limitation on the forum in turn justified the policy,” Tashima wrote. “If speech restrictions in a designated public forum automatically constituted limitations on the scope of the forum itself, then the concept of the ‘designated public forum’  would merge entirely with that of the limited public forum: in either type of forum, the government would be able to exclude speech subject only to the limitations of reasonableness and viewpoint neutrality. To destroy the designation of a public forum, the government must do more. It must consistently apply a policy specifically designed to maintain a forum as non-public.”

The judge went on to say that the suddenly enforced policy was unconstitutional.

“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 policy created no standards to cabin discretion through content or history of enforcement, and it set no fixed standard for a distinction between the Barometer and the Liberty,” he wrote.

Judge Carlos T. Bea concurred, while Judge Sandra Ikuta dissented in part, arguing that Ray and McCambridge were properly dismissed from the suit because they were at worst guilty of knowing that Martarello had violated the plaintiff’s civil rights, which would not be enough to sustain a civil rights claim under 42 U.S.C. Sec. 1983.

The case is OSU Student Alliance v. Ray, 10-35555.l


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