Why student journalists at University of Kansas filed a federal lawsuit

Here’s an unfortunate fact of life: On college campuses, it’s not uncommon for the people who control university funds to be accused of using that power to punish or coerce their journalistic critics in some way. At the Student Press Law Center, a leading advocacy organization, “that’s a call we probably take a dozen times a year,” says Frank LoMonte, the group’s executive director.

It’s less common, however, for student journalists to respond to such alleged power plays by filing a federal lawsuit. But that’s exactly what has happened at the University of Kansas, in what is shaping up as a notable First Amendment fight.

Last Friday, the University Daily Kansan, along with current and former editors of the student paper, filed a suit against top KU administrators. The complaint accuses the student senate of slashing support for the paper because of an editorial that certain student senators didn’t like, and alleges that the university failed to intervene, violating the student journalists’ First Amendment rights. Named as defendants are the university’s chancellor, Bernadette Gray-Little, and the vice provost for student affairs, Tammara Durham.

Daily Kansan editor Vicky Diaz-Camacho said in a written statement that the suit “was a last resort,” adding, “Our constitutional freedoms are at the crux of what we do and help provide transparency to our readers, but those rights were infringed upon by the university and student senate.”

KU spokesman Joe Monaco did not respond to a request for comment.

As the suit proceeds, the university will have the opportunity to present its own account of the facts, and it’s possible our understanding of events will change. But in the meantime, it’s worthwhile to consider the allegations here—and their First Amendment implications.

Lawsuit follows a cut in fee allocation

The Daily Kansan is a nonprofit, editorially independent student news organization that has operated since 1904. Like many student publications, its budget includes both ad-sales revenue and university funds, in the form of student activity fees. Those funds are allocated by the student senate, under authority delegated by the university, but the chancellor and vice provost for student affairs must approve the allocations.

(A disclosure: I teach media law at KU, and some of the people mentioned in the complaint are my current or former students, from both the Daily Kansan and the student senate. Also, a few of my faculty colleagues serve on the paper’s board of directors, and the chancellor, of course, runs the institution that cuts my paychecks. But I’ve had no involvement in the case.)

According to the complaint, the Daily Kansan published an editorial in May 2014 criticizing the student-senate election system, after an election in which the lead vote-getters were disqualified. In the next review of the paper’s fee allocation, the student senate cut the paper’s allocation by 50 percent for the 2015-2016 academic year—a $45,000 annual reduction.

The official reason for the reduction was the paper’s changing publication schedule; the Daily Kansan was transitioning from its custom of publishing a print edition four times per week to a digital-focused strategy of publishing twice per week and reallocating the rest of its resources to the web. But the complaint cites multiple instances in which senate members tied the cut to criticisms of the paper’s coverage. The student-senate president read aloud an excerpt of the editorial during a budget hearing, and one student senator reportedly told the Daily Kansan in an interview that the cut was made, in part, “because some of the coverage had been really problematic in the past.” Another, the complaint alleges, said the Daily Kansan got what it deserved, because it “bit the hand that fed” it.

The Daily Kansan and its legal counsel, according to the complaint, met with the KU chancellor, Gray-Little, and the vice provost for student affairs, Durham, to talk about the fee reduction and to ask them to intervene. LoMonte of the SPLC also sent a letter to Gray-Little outlining the reduction’s First Amendment implications. In the end, though, Gray-Little approved the allocations without changes, and since then the paper’s lost funding has not been restored.

The free-press precedent for student publications

Gray-Little and Durham are being sued in their official and personal capacities under the US constitution, the Kansas constitution, and 42 USC § 1983, a federal law authorizing individuals to file civil suits for deprivations of their rights. And if we take the facts as they’re given, the complaint does raise a number of free-speech issues.

First, the US Supreme Court ruled in the 1995 case Rosenberger v. Rector and Visitors of the University of Virginia that a public university may not discriminate based on the viewpoints of the people whose speech it subsidizes, if it chooses to subsidize speech at all. In that case, a student newspaper’s religious content could not be considered when the university made decisions regarding its funding. That kind of viewpoint discrimination is unconstitutional, the Court said, no matter how scarce the university’s funding may be.

Second, student news organizations like the Daily Kansan, produced extracurricularly, are often seen by the courts as public forums in which student journalists are generally free to express their views. That is the case because the First Amendment, in a public forum, does not look kindly upon government restrictions that are based on the content or viewpoint of a speaker’s message. Indeed, such restrictions are presumptively unconstitutional, and they will be upheld only where the government proves that the restriction serves a compelling interest and that the restriction is necessary to serve that interest.

The bottom line is that while a public university has no general obligation to subsidize student publications, decisions about whether or how much to subsidize one publication or the other, once the decision has been made to subsidize at all, can’t depend on a publication’s content or perspective.

With those principles in mind, I can’t imagine how the university could argue successfully that the senators had a compelling interest in reducing the newspaper’s allocation because of its coverage. The university could argue that the student senators’ viewpoint-based comments were not really connected to the decision to reduce funding—that the real issue was the publication schedule. But, as noted earlier, according to the complaint the senators’ comments about the paper’s coverage were highly consistent and made in the context of the fee-allocation process. Some even drew a straight line between the reduction and the coverage.

However the case is resolved, the effect of the funding decision is to make it more difficult for the Daily Kansan to do journalism. And the perceived connection between fee allocations and viewpoints that the student senate deems acceptable could discourage accountability journalism. Either way, the public interest suffers.

Just how strong that connection is may be disputed as the case proceeds. But for LoMonte, of the SPLC, the takeaway is already clear.

“The lesson from this case is that college administrators can’t and shouldn’t sit on the sidelines as spectators when the First Amendment is being violated under their authority,” he said. “This was a $45,000 expense to the [university] that is going to end up costing exponentially more both in legal fees and reputational harm, all because the university failed to recognize and remedy a clear wrong.”

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.