Student newspapers at our nation’s colleges and universities often walk a precarious tightrope. They are tasked with objectively reporting on campus happenings—including issues involving students, faculty, and administrators—when those very same people may approve funding allocation for the newspaper. Unfortunately, this often leads to retaliation against student newspapers by administrators and student governments who feel slighted by their work or simply disagree with what the paper writes.
But First Amendment protection for student press at public colleges and universities is well-established, and administrators ought to be aware that they cannot get away with retaliation—neither in their own right, nor allowing it to occur. The University of Kansas (KU) recently learned this lesson when it settled a lawsuit from the University Daily Kansan alleging that the university permitted the Student Senate to cut the paper’s funding because it published an editorial critical of that body.
As we reported in February, in the spring of 2014 the Kansan published an editorial by an adjunct professor criticizing the Student Senate election process and calling for reforms. In response, the Student Senate used the next round of budget allocation meetings to express its displeasure with the editorial and question why the Kansan “allowed it to be published.”
Ultimately, the Student Senate slashed the Kansan’s funding in half and told the paper that it could re-apply for full funding the following year after taking the opportunity to “fix their content.” After the KU administration failed to substantively address concerns raised by the Student Press Law Center, KU Chancellor Bernadette Gray-Little approved the Student Senate’s budget, including the 50 percent reduction in funding for the Kansan. As a result, the Kansan filed a lawsuit against KU for its complicity in the Student Senate’s retaliation.
As FIRE has pointed out in similar cases, at public universities such funding cuts are both a violation of the First Amendment and a betrayal of the ideals of higher education. The law has been settled for decades that when a college or university creates a forum for diverse student expression, it may not exclude some speech due to viewpoint. Rosenberger v. Rector and Visitors of the University of Virginia (1995). The Supreme Court similarly made clear, in Board of Regents of the University of Wisconsin System v. Southworth (2000), that student fees must be distributed in a viewpoint-neutral manner:
When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others. There is symmetry then in our holding here and in Rosenberger: Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected.
Fortunately, KU and the Kansan have settled the lawsuit after the Kansas Board of Regents approved a student fee allocation to the newspaper that exceeds the funding it received before its budget was slashed by the Student Senate. Now, the newspaper is free to carry out its journalistic mission without fear of retaliation or unwarranted intrusion into editorial decisions.
While this was far from the first lawsuit to be filed over retaliation against student press, it is notable in that it is one of the few lawsuits that have sought to hold a university administration responsible for the unconstitutional actions of its student government. FIRE has consistently maintained that a university cannot evade responsibility for the constitutional violations of its agents—including student government—simply because it delegated its authority to them. When the administration knows that its student government has violated the principles of viewpoint neutrality in student fee allocations, it is obligated to intervene and correct the First Amendment violation, and to educate the student government of its responsibility to adhere to First Amendment standards.
But even though the Kansan’s case has settled, at least one court will soon have the opportunity to rule on administrators’ responsibility to ensure that fees are distributed in a constitutional manner. As FIRE has previously reported, the University of California, San Diego (UCSD) currently faces a similar lawsuit after its student government, encouraged by the administration, defunded all student media in order to avoid funding the controversial satirical magazine The Koala. FIRE wrote to UCSD demanding that the administration reverse the student government’s unconstitutional actions, but after UCSD failed to respond, The Koala, aided by the American Civil Liberties Union of San Diego, decided to hold both the student government and the administration responsible for their roles in the controversy. A hearing on The Koala’s motion for a preliminary injunction is currently scheduled for July 18.
FIRE is confident that courts will refuse to let universities shirk their constitutional obligations by outsourcing or delegating functions to other entities, like student governments.