[Updated (10/25/2012, 5:31 p.m.) to include details from the university's statement on the ruling.]
A federal appeals court has revived a lawsuit filed by the creators of a conservative student publication at Oregon State University who accused university officials of unfairly limiting their paper’s distribution on the Corvallis campus. Supporters of The Liberty, a newspaper staffed by students and financed by private donations, filed a lawsuit in 2009 after university employees gathered up the paper’s outdoor distribution bins and dumped them in a storage yard. Officials cited an unwritten policy governing where “off campus” publications could be placed—a rule that the plaintiffs said drew an arbitrary distinction between The Liberty and the university’s official student paper, since both publications are written by students.
In a 2-to-1 opinion issued on Tuesday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court’s 2010 decision to dismiss the case. Writing for the majority, Judge A. Wallace Tashima said that the court had “little trouble finding constitutional violations” in campus officials’ actions. The rule university officials used to justify removing the paper’s bins “was really no standard at all,” Judge Tashima wrote. “Its application to The Liberty’s newsbins therefore violated the First Amendment.” The decision sends the case back to the trial court for further proceedings.
The defendants in the case include the university’s president, its vice president for finance and administration, and its facilities-services director. A vice provost for student affairs was dismissed as a defendant. In a partial dissent, Judge Sandra S. Ikuta wrote that the majority had erred in failing to dismiss the president and vice president as defendants too, because the complaint does not accuse either of them of acting in a way that deprived the plaintiffs of their constitutional rights.
A spokesman for Oregon State said the university is “dedicated to free speech” and added that campus officials were “surprised” by the court’s decision. “OSU disagrees with many of the plaintiffs’ factual characterizations, which were accepted as true by the court at this stage of the case,” said Steve Clark, Oregon State’s vice president for university relations, in a written statement. “We are pleased that the appeals court held that senior university leaders did not engage in any misconduct. But the judges unexpectedly went on to find that the senior OSU leaders’ knowledge of the previous newspaper-distribution-box policy was sufficient for them to remain named as defendants in the lawsuit.”