Independent student publication's lawsuit against Oregon State officials can proceed, court rules

OREGON — A student organization is entitled to a trial to determine if Oregon State University officials violated their rights by removing their newspaper boxes from campus.

In a split decision from the Ninth Circuit Court of Appeals, the court reversed a lower court’s 2010 dismissal of the case, saying the student organization that publishes conservative student newspaper The Liberty has validly stated a claim of First Amendment and due process violations against school officials.

The claim arose in early 2009 after university staff removed all seven of the monthly publication’s newspaper boxes and later limited the publication’s distribution.

When editors first noticed the missing boxes, they contacted police. After an investigation, the boxes were found at a storage yard on campus and their removal was traced back to university employees. When Will Rogers, The Liberty’s editor, contacted the university, he was told by a Facilities Department manager that the boxes were violating a unwritten 2006 campus policy that prevented boxes from being placed outside two specific areas on campus.

According to the complaint, university officials told Rogers they were finally enforcing the policy by removing the boxes, even though boxes belonging to other publications were not touched and one removed box was in an area designated for newspaper boxes.

Rogers appealed to several university employees to have the boxes reinstated, including Director of Facility Services Vincent Martorello, Oregon State President Ed Ray and Vice President of Finance and Administration Mark McCambridge, but was denied.

The district court dismissed the case, saying the paper didn’t have a claim because it could not sufficiently connect the removal of the boxes to the specific administrators named in the suit. The appeals court disagreed, saying three of the four administrators named in the suit had enough knowledge of the situation to have intervened and that it was not necessary to identify which specific individuals took action before the discovery process.

Given that, the appeals court said the district court erred in not allowing the paper to amend its complaint. Tuesday’s decision means the case could go to trial.

Heather Hacker, an Alliance Defending Freedom attorney who is representing The Liberty, said in a statement that the court made the right decision and that universities should not censor a paper just because officials don’t like it.

“The argument that the independent student paper’s bins were confiscated to ‘clean up’ the campus under an unwritten policy was simply not believable,” Hacker said. “No notice was given, and none of the bins belonging to the primary campus student newspaper were taken.”

Though the majority ruled in favor of the students, Judge Sandra Ikuta dissented from part of the ruling. Ikuta wrote that, in her view, the allegation that Ray and McCambridge knew about the removal but failed to prevent it did not rise to the level of a civil rights violation.

Steve Clark, vice president for university relations and marketing for Oregon State, said Tuesday evening that the school’s attorneys were reviewing the court’s ruling.

By Jordan Bradley, SPLC staff writer. Contact Bradley by email or at (703) 807-1904 ext. 124.