Husain v. Springer

494 F.3d 108

Sarah HUSAIN, William Wharton, Devon Blinth, Colleen McGraham, Jeff McGraham, Kathleen McHugh, Marc J. Peseau, Neil Schuldiner, and Kasadore Ramkisson, Plaintiffs-Appellants Manjula Wijerama, Morgan Healy, Diane Issac, James Murphy, Michael J. Perrine, Joanne Gallo, Desmond Figueroa, and John Pae, Plaintiffs, Iman El-Sayed and Renee Marhong, Intervenors-Plaintiffs-Appellants, v. Marlene SPRINGER, Carol Jackson, Michael Silva, Winsome Alston, Sibi Geevarghese, Joseph Canale, Juergen Schnetzer, Andre Woods, Charlo Almeda, Christopher Alvarez, Kellyanne Biesty, Mary Anne Christensen, Luis Cruzatte, W. Ann Reynolds, Robert E. Diaz, Roy Moskowitz, Michael Solomon, City University of New York, College of Staten Island, Student Election Review Committee of the College of Staten Island, Board of Trustees of the City University of New York, Marla Brinson, Matthew Goldstein, and Kathleen Galvez, Defendants-Appellees Washington Hernandez and Tina Jefferson, Defendants.

Docket No. 04-5250-cv.

United States Court of Appeals, Second Circuit.

Argued: February 14, 2007.

Decided: July 13, 2007.

Ronald B. McGuire, New York, NY, for Plaintiffs-Appellants and Intervenors-Plaintiffs-Appellants.

Marion R. Buchbinder, Assistant Solicitor General (Michael S. Belohlavek, Senior Counsel, of counsel), for Eliot Spitzer, Attorney

General of the State of New York, for Defendants-Appellees Marlene Springer, Carol Jackson, Michael Silva, Winsome Alston, Sibi Geevarghese, W. Ann Reynolds, Robert E. Diaz, Roy Moskowitz, Michael Solomon, City University of New York, College of Staten Island, Student Election Review Committee of the College of Staten Island, Board of Trustees of the City University of New York, Marla Brinson, Matthew Goldstein, and Kathleen Galvez.

Joseph P. Esposito, Nicolas Jafarieh, Jonah E. McCarthy, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC; Rex Heinke, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA; S. Mark Goodman, Michael C. Hiestand, of counsel, Student Press Law Center, Arlington, VA, for Amicus Curiae Student Press Law Center.

Before: JACOBS, Chief Judge, WALKER and CALABRESI, Circuit Judges.

Chief Judge JACOBS concurs and dissents in part in a separate opinion.

CALABRESI, Circuit Judge:

In this appeal, we consider whether a public college president's decision to cancel a student government election because of content published in a school newspaper violates the First Amendment rights of the student journalists who produce that publication. We conclude that, in the circumstances presented in this case, the school administrator's actions did violate the First Amendment. Because factual issues exist with respect to the question of whether the college president is entitled to qualified immunity, we hold that it was inappropriate for the district court to grant summary judgment to the defendants. Accordingly, we vacate the district court's judgment with respect to the college president and remand the case for further proceedings.

BACKGROUND

I. Events Giving Rise to the Lawsuit

A. The School

The school newspaper at issue was produced by students at the College of Staten Island ("CSI" or the "College"), which is part of the City University of New York ("CUNY") system. Under state law, the CUNY Board of Trustees (the "CUNY Board") may impose mandatory student activity fees to support student activities and regulate the expenditure of those funds. At all times relevant to this lawsuit, CSI students, as a condition for registering for classes, were required to pay mandatory student activity fees in an amount set by the CUNY Board. At CSI, a portion of the student activity fees is earmarked for a general fund to be allocated by the CSI student government to several extracurricular activities, including student publications.

The CUNY Board of Trustees Bylaws ("CUNY Bylaws") mandate that CSI establish a Student Elections Review Committee ("SERC"), which, among other responsibilities, approves election procedures and certifies election results. CUNY By-law § 15.2[d]. During a student government election, the SERC meets when needed to consider alleged violations of election rules and other complaints regarding the election process. The student government nominates individuals, who may be students, faculty, or administrative staff, to serve on the SERC. From those nominees, the CSI president appoints the members of the SERC. The intent of Bylaw § 15.2[d] is to limit the role of college presidents to "receiving appeals from the Student Elections Review Committee where an individual student has received a negative determination on a request." On appeal, the CSI president may uphold, reverse, or modify the SERC's determination.

Each spring, CSI holds annual elections for the Student Senate, as well as for other student government positions. Once elected, the CSI Student Senate in turn names a president and eight commissioners from among its members. One of the commissioners chairs a "Committee on Publications" that is responsible for regulating student media outlets. In the 1996-1997 academic year, the allocation of student activity fees to student publications was made by the Student Senate based on the recommendation of the Committee on Publications.

B. Publications Funded by Student Activity Fees at CSI

CSI allocates student activity fees to fund a number of student publications, including the one at issue in this litigation, the College Voice. The College Voice is a student newspaper and political journal that is primarily paid for from student activity fees.¹ The College Voice publishes articles and editorials on a wide range of topics, including pieces on CSI, CUNY, local, national, and international affairs, reviews, and poetry. The editors of the College Voice choose the material that the newspaper publishes without any supervision or prior review by anyone other than the editors and staff of the newspaper. (The newspaper has a faculty advisor who does not review or approve articles prior to publication.) Participation in the College Voice is entirely extracurricular, and the editors and staff do not receive any academic credit for working on the newspaper.

In addition to the College Voice, CSI also funds a college radio station and other student media outlets using the student activity fees. The other outlets include the Banner, which the student government designated the official campus newspaper, a literary magazine named The Third Rail, and various other publications. CUNY and CSI have not placed any restrictions on the subjects that may be covered in the College Voice or the Banner.² These newspapers are not prohibited from publishing articles or editorials expressing opinions or endorsing candidates in student elections. There is no rule or regulation prohibiting or restricting the editors or staff members of the College Voice, or other publications, from running for student government positions or from endorsing themselves.

According to the plaintiffs' complaint, in the early 1990s the College Voice was designated the official college newspaper of CSI. Several years before the Spring 1997 election, the editors of the College Voice began publishing articles that reflected a generally "left-wing" perspective on campus, local, national, and international political issues. Many of the articles and editorials were critical of CUNY and CSI administration officials. These positions prompted some students, who disagreed with the College Voice's editorial policy, to form a second student newspaper at CSI called the Banner. The CSI Student Government subsequently revoked College Voice's designation as the "official" CSI student newspaper and gave that status to the Banner. In Spring 1997, the Banner was the official CSI student newspaper.

C. The Spring 1997 Election

i. The Student Union Slate

In the Fall 1996 term, some CSI students concerned about various student life issues at CSI and CUNY began meeting and formed an organization they called the "Student Union." During the student government elections in the Spring 1997 semester, the Student Union ran a slate of candidates for a total of 37 positions in the Student Senate and other governing organizations. Several editors and staff members of the College Voice, including some of the plaintiffs, were among the candidates running on the Student Union slate. The only opposing slate was "Students for Students" ("SFS"), which was composed mainly of incumbent members of the Student Senate seeking re-election. Almost all of the candidates in the Spring 1997 election were affiliated with either the Student Union or SFS slates.

The Spring 1997 student government election at CSI was scheduled to take place between April 30 and May 3, 1997. Before the election, CSI's SERC approved eight election rules. Two of those rules are at issue in this litigation. Rule 2 provided: "The campus newspaper may not be used as posters on walls, bulletin boards, etc. and may not be used as a means to distribute campaign flyers." Rule 5 stated: "The Student Government will be glad to make you 30 copies of your stamped and approved poster or flyer. All candidates must remove their election materials from the designated areas after the election is over."

ii. May 1997 Issue of the College Voice

Prior to the Spring 1997 election, the College Voice decided to endorse the Student Union slate.³ By agreement within the College Voice editorial board, the decision about whether or not to endorse candidates, which candidates to endorse if the newspaper decided to do so, and what content to run in the issue was to be made by the members of the board that were not candidates in the Spring 1997 election. The College Voice chose to publish a special election issue that the editors intended to have distributed on April 28, 1997, two days before the beginning of the voting period.⁴ The timing was a significant aspect of the College Voice's message. An editor of...