Student Newspaper’s First Amendment Lawsuit Against University of Kansas Administrators Is Important Reminder about Need to Check Student Government Power

On February 5, the University Daily Kansan filed a lawsuit against two administrators of the University of Kansas (KU), alleging that the administrators failed to intervene when the student government slashed funding to the Kansan over an editorial criticizing the results of a student government election.

The Kansan story begins in April 2014, when a slate of candidates for student government positions were declared ineligible the night before the election, resulting in two students who received a minority of votes—Morgan Said and Miranda Wagner—being elected to office. In response, the Kansan published an editorial by attorney and professor Mark Johnson that sharply criticized a process by which a slate of candidates receiving less than 30 percent of the vote could assume office, despite having “lost by a landslide.”

As one student senator allegedly told the Kansan news editor, the Kansan had “bit the hand that fed” it.

The result, according to the Kansan’s lawsuit? The following February, the student government—to which KU delegates authority to distribute mandatory student fees—conducted an annual budget review of the student fees allocated to the Kansan, ultimately cutting the paper’s allocated fees in half. The Kansan editors allege that during this process, the student government—including Morgan Said—repeatedly used meetings concerning the Kansan’s budget to criticize the Kansan for its editorial content, with a keen focus on the editorial criticizing the election. Said, according to the Kansan, read part of the editorial to fellow committee members, later stating that she wanted to use the fee review process to discuss the editorial (published some nine months earlier) with Kansan editors “face to face.”

One committee member indicated that Said viewed the reduced funding as an opportunity for the Kansan to “fix their content” before returning the following year to seek a restoration of their funding. Another committee member indicated that the funding cut was motivated because some coverage “had been really problematic” and complained that the student government was not asked for comment in connection with the editorial.

When the student government cut the Kansan’s funding, leaders of the Kansan—armed with support from the Student Press Law Center—sought intervention by the KU administration. After soliciting a promise from Said that the student government would look into revisiting the funding issue (a promise the Kansan alleges was not kept), administrators at KU, aware that there were First Amendment concerns, rubber-stamped the reduced budget.

As the Kansan noted in a front-page editorial announcing the lawsuit, the damages have been substantial:

By using our content as reasoning for reducing our funding, Student Senate is violating the Kansan’s First Amendment rights. By not stopping this funding cut, the chancellor and the University are endorsing these violations, despite the editorial freedom the U.S. Constitution guarantees the Kansan.

Our responsibility to our readers and all people with any interest in the University is to hold those in power accountable. By doing that, the Kansan has been punished with a budget cut that required us to eliminate 13 paid student staff positions. The Kansan has been without a full-time news adviser since the fall, and we are financially unable to hire one as a direct impact of the reduced funding.

One might expect that KU would be keen to intervene when its student government, using powers delegated to it by KU, crossed into impermissible policing of student speech. After all, as the complaint in the Kansan’s lawsuit points out, when the student government voted to eliminate particular fees supporting the KU Athletics Department, KU Chancellor Bernadette Gray-Little—who failed to intervene in the Kansan decision—levied a new fee upon students to make up for the cut, undermining the student government’s action. KU and Chancellor Gray-Little have priorities, but the First Amendment is somewhere further down the list than athletics funding.

We’re Not in Kansas Anymore, But It Still Looks the Same

Unfortunately, the Kansan’s unenviable position is not uncommon. Too often, funding decisions by student governments negatively affect their constituents’ rights. When student leaders make the wrong decision—intentionally or not—they must reverse course and correct their mistakes. Failing that, university administrations are obligated to intervene to halt deprivations of student rights.

But how often do either of these reversals happen? Too rarely.

As the Kansan situation demonstrates, particularly perilous to student liberties are situations in which the student government provides “oversight” of funding to student media, which, in turn, uses those same funds to provide oversight of the student government. This is too often an invitation for student governments to tighten the budgets of student newspapers that criticize them, or to assume the role of censor on behalf of students upset by controversial articles or editorials.

This was the case in November 2015 at the University of California, San Diego (UCSD), where the student government and university administrators condemned a student humor publication, The Koala, shortly after it published an article satirizing campus “safe spaces.” This isn’t the first time The Koala has found itself in hot water, having been charged with “disruption” in 2002 until FIRE reminded UCSD of its First Amendment obligations. It’s not even the second time: In 2010, the student government froze funding for all student media until it could try to figure out a way to prevent funding from going to The Koala, later backing down from its position under pressure from FIRE.

Five years later, the student government is trying a similar course. After astutely observing that the First Amendment wouldn’t permit it to selectively de-fund The Koala, the student government decided that it would be preferable to instead defund every publication. This action is no more constitutional than targeting The Koala alone, however, and it has been condemned by FIRE, the Student Press Law Center, and the ACLU of San Diego, among others. As with the Kansan, the UCSD administration has not heeded warnings that its student government has overstepped its bounds.

Meanwhile, at Wesleyan University, outraged students called for defunding of the university’s student newspaper, The Wesleyan Argus, after it printed an opinion piece criticizing the Black Lives Matter movement. The student government quickly obliged, proposing a new funding system which, coincidentally, could see the Argus subjected to a substantial—if not debilitating—cuts to its budget. The change was, its proponents insist, not motivated by opposition to the Argus’s content, but its timing raises the appearance of a motive to avoid uncomfortable dialogue. While Wesleyan, as a private institution, is not bound by the First Amendment, its administration’s failure to seek out a solution that prevents the student government from policing the content of student media speaks volumes of its commitment to free speech.

And at the University of Oregon (UO) this past November, the student government denied funding to a Young Americans for Liberty event because its pro-gun message and prizes “would make students feel uncomfortable.” While the group sought funding only for the cost of renting a ballroom for the event and ordering pizza, the student government concerned itself with the message that the group wanted to convey, questioning its leaders as to their stance on gun control, surveying those present at the meeting as to their stance on gun control, and expressing displeasure that the event would not be in the form of a “panel” to discuss the issue. Despite these strong indicia that its student government was denying funding based on the viewpoint expressed by the event, UO refused to intervene.

Abandon All Hope, Ye Who Have Been Censored? Not Necessarily.

There is yet time for these student governments to reverse course, lest they invite administrative intervention. Occasionally, administrators can successfully intervene by urging student government leaders to take corrective action on their own, but, failing that, institutions must (and have) taken more substantive steps to address the situation.

At the University of Massachusetts Amherst (UMass) in 2009, for example, the administration vetoed a Student Government Association resolution that would have required a student newspaper to either apologize for criticizing a member of the SGA over funding concerns or lose its funding. Institutions in such a position might have a number of reasons motivating them to intervene, ranging from public pressure to fear of legal liability (or, preferably, genuine concern for student rights).

Members of student governments are adults who have chosen to take on responsibilities to their peers, including the responsibility to ensure that student rights are protected. They are not immune from criticism and should be criticized when their actions infringe upon the rights of their peers. So, too, do they deserve credit when they listen to their critics and stand up for the rights of their constituents, even belatedly. But when student governments fail to live up to that responsibility, college administrations must intervene to protect student rights.

In any event, it is far preferable that student leaders reach morally and legally defensible positions on their own, without administrative intervention. Doing so avoids the perception that student leaders cannot make meaningful decisions, while meaningfully resolving disputes in favor of preserving their constituents’ rights.

For example, at the State University of New York – Buffalo State College in 2015, the United Students Government (USG) attempted to freeze the budget of a student newspaper and suggested that it would be necessary to remove all copies of the paper’s April Fool’s Day issue from campus. College administrators indicated that they were powerless to act, as the USG “provides oversight of the paper, not the college administration,” but they promised to reach out to the USG, which quickly backed down in a conciliatory Facebook post. And at UCSD, previous attempts to censor The Koala were reversed by the student government after calls by FIRE, the Student Press Law Center, and the ACLU of San Diego.

Likewise, in 2012 the University of Memphis took FIRE’s advice and restored funding to The Daily Helmsman after the student body president criticized the paper as insufficiently “promoting student activities” and a committee composed of students, faculty, and administrators slashed its funding. Chelsea Boozer, who served as the editor-in-chief of The Daily Helmsman, described the chain of events to FIRE, noting that the student body president was particularly aggrieved that the Helmsman had chosen to cover an on-campus rape instead of a student government meeting:

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Or, for a particularly strange example, see Western Kentucky University (WKU), where in November 2015 the student government’s Judicial Council launched an “investigation” into a Facebook post by a member of the student government. The alleged offenses: that the senator had (1) held a sign at a football game calling for the resignation of WKU’s president and (2) posted a photo to Facebook showing WKU’s president with a speech bubble over his head reading: “Josef Stalin was a good Christian who did nothing wrong.” According to an email sent to the student by the Chief Justice of the Judicial Council, a “majority of the Judicial Council ... agreed to conduct an investigation”; the council later clarified that its goal was to determine whether the Facebook post was “protected by the student’s freedom of speech.”

Thankfully, following criticism from fellow students and the media, the WKU Judicial Council unanimously found that there had not been any “activities that are not protected by his First Amendment right to a freedom of speech” and declined to censure the student. The Judicial Council, although it previously asserted that it had voted to conduct an investigation, subsequently claimed that it would not have conducted an investigation but was forced to do so because its policies required an investigation whenever 10 students filed a complaint. While an investigation based solely on protected speech is punitive in itself, the students wisely reversed course.

FIRE will be watching the Kansan lawsuit closely. So, too, should administrators at institutions where student governments are unwilling to abide by the First Amendment, and too stubborn to correct their mistakes.