Appeals court finalizes legal victory for conservative newspaper at Oregon State

A federal appeals court has declined a request from Oregon State University administrators to reconsider an October 2012 ruling that kept alive a First Amendment challenge brought by publishers of a conservative newspaper whose distribution racks were seized.

In a brief order issued Friday, the Ninth Circuit U.S. Court of Appeals declared that neither the three-judge panel that issued the opinion nor the entire (“en banc“) Ninth Circuit will rehear the case.

Unless OSU attorneys convince the U.S. Supreme Court to take the case, and there is no indication whether the university will even try, Friday’s decision means that the case can proceed toward trial. Supreme Court review is highly unlikely, as the case, although more than three years old, is still at the preliminary motions phase.

A conservative student organization, the OSU Students Alliance, sued OSU President Edward J. Ray and three other administrators in September 2009. The students claim their First Amendment rights were violated when — acting under an unwritten policy that was enforced only against their newspaper, The Liberty — maintenance workers removed all seven of the paper’s distribution bins and threw them in a trash dump.

Attorneys for the administrators sought to have the case dismissed, arguing that none of the administrators could be held liable because the Students Alliance had no concrete evidence that any of them personally gave the order to remove the boxes.

A federal district court agreed and threw out the students’ case. But in a 2-1 ruling issued Oct. 23, the Ninth Circuit reinstated the case, saying that the students should have a chance during the discovery phase to gather evidence identifying the source of the unlawful directive.

Although only at a preliminary stage of the case, the ruling is significant because it establishes that government policymakers — even as high up as a university president — can be subject to suit for unconstitutional policies that they supervise and fail to correct, regardless of whether there is proof of personal involvement. The ruling makes the legal path easier for those victimized by unconstitutional policy decisions, who often will lack the inside knowledge to prove who was in the room when the decision was made.

The case is OSU Students Alliance v. Ray.