Ousted student newspaper adviser cannot stay in her position as she sues board of directors, judge rules

MICHIGAN — A federal district court judge has denied Northern Michigan University’s ousted newspaper adviser’s request for a preliminary injunction that would allow her to remain as adviser during the legal process of suing five current and former members of the newspaper’s Board of Directors.

The board will now have to hire another adviser — something Cheryl Reed, ousted adviser of The North Wind, said will present a challenge. The judge also addressed the issue of editorial control — he said the newspaper’s bylaws gave the board control over editorial content.

“When, again, you have an outside board that’s been given editorial oversight by a federal judge, that’s nothing that any journalist is going to want to do with,” Reed said. “You’d be constantly worried whether or not the board would overrule you and whether or not they would yank your position.”

Robert T. Zielinski, an attorney for the defendants, said he and his clients are pleased with the decision.

“We think the judge showed a real understanding of the facts and the law,” he said.

In April, Reed, along with Michael Williams, managing editor of the North Wind, filed suit in U.S. District Court for the Western District of Michigan, alleging that Reed’s termination violated her free-speech rights and was part of a “campaign of intimidation” motivated by a desire to punish and chill students’ investigative reporting about campus issues.

“To me, it seems pretty blatant what was going on,” said Reed. “I felt that the students were being harassed, intimidated, and discouraged from practicing investigative journalism.”

During Reed’s tenure in 2014-15, The North Wind published investigative stories on sexual assault on campus, travel expenses incurred by university Board of Trustee members, and a contract NMU entered into with Starbucks.

On April 3, the board voted 5-3 against retaining Reed as the newspaper adviser for the coming year, with Reed disqualified from voting.

The defendants claimed in their affidavit that their vote was motivated by Reed being “abusive, needlessly confrontational, and unbearably egotistical in her interactions” with board members.

The defendants in the case consist of four current or former student members of the board and Steven Neiheisel, a member of the board and vice president for enrollment management and student services at NMU.

Reed and Williams requested that the court issue a preliminary injunction to retain Reed in the position of adviser. They also requested that the court produce an order forbidding the defendants from considering editorial content in its decisions affecting the paper’s governance and using their authority to retaliate against the assertion of constitutionally-protected rights.

In his opinion, released on Monday, Judge R. Allan Edgar determined that Reed and Williams likely could not prove their claim that the five board members violated their First Amendment rights.

Edgar said this was because the actors, with the exception of Neiheisel, were not state actors as required under the law.

“It does not appear that NMU regulates these students, or the Board on which they serve,” Edgar said in his opinion. “The board is essentially an independent entity controlled by students who are not selected or removable by NMU.”

The board consists of nine members, five of which are required to be students. Three are appointed by the board itself and two are designated by student government subject to board approval.

“The judge is not convinced that this board is a government agency,” said Frank LoMonte, executive director of the Student Press Law Center, which provided Reed with a referral to volunteer legal counsel. “Obviously, that can’t be right, because the board exercises supervisory authority over a state employee, and you wouldn’t just let a group of private citizens form a committee that exercises hiring and firing authority over state employees.”

Edgar ruled that neither Reed nor Williams engaged in protected speech under the First Amendment. Williams was not affiliated with the paper in the fall of 2014 when the article regarding the Starbucks contract was published, and did not write any of the other investigative articles. Reed did not write anything in the North Wind that was protected speech, according to the opinion.

Still, LoMonte said it shouldn’t matter if Williams did not personally write the investigative articles.

“He now knows that the board is permitted to use its punitive authority if it’s displeased by the newspaper’s content,” he said. “So he will be publishing in fear of future acts of retaliation by the board.”

The editor is responsible to the board for editorial content according to the North Wind’s bylaws — meaning, even if the board’s actions were motivated by the editorial content of the newspaper, the board members were only doing their job, Edgar wrote in his opinion.

Reed said this is more of a troubling issue than her removal as adviser.

That opinion is based on a “poorly worded” segment of the paper’s bylaws, which states that the editor is responsible to the board for tone and content, said Reed.

LoMonte believes that judge “completely missed the boat” in that statement. The bylaw that gives editorial control to the board is unconstitutional, he said.

“The whole provision in the board bylaws that gives the board responsibility for tone is one of the underlying issues in this case,” he said. “There’s no question that you can’t have a government-appointed board controlling the content of the student media. That is completely foreclosed by the Kincaid decision.”

In Kincaid v. Gibson, the Sixth Circuit U.S. Court of Appeals ruled that student editors have full control over the editorial content of student media, he said. Michigan is part of the Sixth Circuit, where Kincaid is binding as legal precedent.

The defendants have now filed a motion to dismiss the case, which is still in the briefing stages, LoMonte said.

“I think it’s a really sad day for student journalism,” Reed said.

Contact staff writer Trisha LeBoeuf by email or at 202-974-6318.