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STUDENT PRESS LAW CENTER November 18. 201 1 Heather Bryant Editor. The Sun Star P.O. Box 756640 Fairbanks. AK 99775-6640
Dear Ms. Bryant: Thank you for contacting us about the situation at University of Alaska Fairbanks. The facts as I understand them are below. At present, The Sun Star is funded primarily by student activities fees that are allocated through the Associated Students of the University of Alaska Fairbanks (ASUAF). The ASUAF receives approximately $500,000 per year of student activities funds and is charged with allocating those funds among student groups. ASUAF has no faculty adviser, but its allocations must be approved by the Board of Regents. It is also my understanding that, in the prior year. ASUAF senators have objected to criticism printed in The Sun Star. At times these objections have taken the form of senators “reminding” editors that ASUAF “owns” the newspaper and the equipment used to produce it. Because of this pressure and other management concerns. The Sun Star editors have sought to separate the paper from ASUAF. and to that end, have secured the signatures necessary to add a 1h ballot initiative to the ASUAF student government elections on Nov. 29 and 3O. In support of that initiative, you have written editorials encouraging students to vote in favor of the separation, some of which have already run. If successful, The Sun Star will receive funding directly from the University. After obtaining the signatures, members of ASUAF have told you and other editors that ASUAF election rules prevent The Sun Star from commenting on the initiative. Specifically, Section 10033 of the ASUAF elections manual prohibits “any and all use of ASU AF funds or property” to support a campaign or initiative, and ASUAF has the aforementioned belief that The Sun Star is owned by ASUAF. Based on these facts, the documentation you have provided, and our conversations, you have asked for our opinion regarding the legality of this censorship. The Student Press Law Center is the only legal assistance agency in the country devoted exclusively to educating high school and college journalists on the latest developments in the law affecting the student press. Having provided assistance to over 2,000 student journalists and educators last year alone, we are happy to help, with the understanding that we do not represent” you as legal counsel. If you require legal advice or representation. e would be pleased to refer you to volunteer counsel in your area,
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As I explain below. ASUAF’s assertion of ownership is misguided: therefore, its own election rules do not apply, Furthermore. ASUAF’s funding allocation is a governmental task and, therefore, ASUAF could not write any form of any rule that would prohibit students from advocating for a ballot initiative in this or any other student publication. 1) ASUAF is acting with governmental authority when it delegates funding and therefore must comply with restrictions placed upon governmental entities within that role.
It should come as no surprise to ASUAF senators that the authority they possess to divide student funds derives from the University of Alaska Fairbanks. Hopefully it will then come as no surprise that the delegation of governmental authority carries with it some measure of govermnental obligation. In Board ofRegents of University of Wisconsin System v. Sóuthworth, 529 U.S. 217 (2000), the Supreme Court ruled that a student government-administered system of allocating funding didn’t violate the rights of students required to pay into the system, provided the system was operated in a viewpoint neutral manner consistent with the educational goals of the institution. Inherent to the ruling in Soulhworth was the understanding that the student government was performing a governmental function: only the governmenl has an obligation of viewpoint-neutrality. Lower courts have agreed that the funding allocation decisions of a student government are state actions. In Gay and Lesbian Students Association v Gohn. 850 F.2d 361(8th Cir. 1988), the 8th Circuit U.S. Court of Appeals ruled that a student government had violated the constitutional rights of a student group that was denied funding because some senators disagreed with the group’s lifestyle views. The Court ruled that “state action was present in the [student government’s] funding decision” because the school had “delegated the function of appropriating money from student service funds to student organizations” while ultimately signing off on the student government’s decisions. Id. at 365-66. See also State Bd. ofCommunity Colleges v. Olson, 687 P.2d 429 (Cob. 1984), appeal after remand, 759 P.2d 829 (Cob. Ct. App. 1988) (finding that a student government’s content-motivated funding cuts to a student newspaper violated the First Amendment) and Sinn v. Daily Nebraskan, 638 F.Supp. 143, 148 (D. Neb. 1986), affd, 829 F.2d 662 (8th Cir. 1987) (finding a “publications committee” with university members could not direct an editor’s advertising decisions without offending the First Amendment).
The only case where a court exempted a student government actor from state obligations was Husain v. Springer. 494 F.3d 108 (2d Cir. 2007). Husain will receive further discussion below, but the rationale for dismissing, the student govermnent defendants was, in part, that their decision had been ratified by the university, which remained as a defendant. The university ultimately lost the case and was ordered to pay nominal damages and attorney’s fees for the student government’s decision. At best, Husain reflects that student governments don’t act as state actors when the authority is never really delegated because the decision has to be ratified by a higher state actor.
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(liven all of the above, it seems clear that ASUAF is a state actor when allocating funds or performing any other task which it has been given the authority to perform by the institution. 2) As a government actor, ASUAF is not the owner of the things it funds.
Student activities funds are government funds. When UAF directs ASUAF to allocate student funding, it does not hand ASUAF an unrestricted pile of money for ASUAF to enrich itself; it merely permits ASUAF to assist in the government’s funding decisions. To put it more bluntly. money only equals ownership when its your money. ASUAF owns nothing because an owner is someone who spends his own money to do something. The “owner” is the State of Alaska. The University of Alaska Fairbanks is a bit like the owner’s business manager, overseeing the use of the owner’s property in accordance with the owner’s wishes, In this analogy, the ASUAF is something like the owner’s business manager’s secretary, assigned authority to use a tiny bit of the owner’s property to fulfill a very narrow purpose stated by the owner.
ASUAF asserting ownership of The Sun Star is therefore the logical equivalent of the person who answers phones in the American Airlines Center asserting that they own the Dallas Mavericks. The funding of The Sun Star is a governmental expenditure. The University of Alaska Fairbanks has decided that it supports the educational mission of the institution to have a student newspaper, and having funded the existence of the opportunity, the governmental purpose is satisfied. That means that as long as students are receiving the educational opportunity of participation on The Sun Star, there is no legitimate governmental reason for the owner (Alaska), the business manager (UAF). or the business manager’s secretary (ASUAF) to demand, control, alter, limit, or otherwise influence content. Such demands therefore violate the First Amendment. This is not to say that ASUAF does not possess property. ASUAF no doubt has the authority to allocate funding to itse.f to fulfill its mission. When it does so, those purchases are within the charge of ASUAF and can be subject to ASUAF rules. Going back to our earlier analogy, while the person who answers phones at the American Airlines Center has no authorit over the Mavericks, he is no doubt master of the paper clips in his desk drawer, so long as their use advances the execution of his duties.
Perhaps the federal court in Antonelli v, Hammond. 308 F. Supp. 1329. 1 337 (D. Mass. 197(3) (striking dovn prior reiev ot a college ne4spaper) summarized the situation best in sa1ng [t]he state is not necessarily the unrestrained master of what it creates and fosters.” Note that student newspapers are not state actors because publishing a newspaper is not a governmental function. If a student newspaper ceased to exist, the government would not be obliged to resume its duties. On the other hand, the entire point of this ballot measure is to ask the institution to reassume the duties it has delegated to ASUAF to the extent those duties involve the student newspaper. The fact that ASUAF’s function cannot be eliminated without the government needing to perform it is itself proof of funding allocation as an essential governmental function.
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As The Sun Star is not ASUAF property, it is not subject to the restriction of the use of ASUAF property within the ASUAF’s election rules. 3) As a government actor, ASUAF cannot create or enforce a rule that restricts the ability of a student newspaper to editorialize on ballot issues without violating the Constitution.
This issue was most recently litigated in two cases in New York. In Husain v. Springer, 336 F. Supp.2d 207 (E.D.N.Y. 2004), vacated in part. 494 F.3d at 108. the student government at College of Staten Island nullified its student election after the student newspaper endorsed a slate of candidates within the student government’s “blackout period” prohibiting campaigning. A few days later, college president Marlene Springer said she would uphold the student government’s decision. In finding the college violated the rights of the editors, the district court wrote: It cannot be that University action taken as a direct result of the views printed in a student newspaper can escape First Amendment scrutiny simply because that action was directed toward the nullification of the goal that the students espoused rather than at the vehicle, the newspaper, in which that goal was promoted. The chill on expressive freedom is the same. Id.. 336 F.3d at 215, If nullification of an election for endorsing a candidate creates an expressive chill, so too does the nullification of an election (or any other retaliatory adverse action) for endorsing a ballot measure. In Sigal v. Moses. 98 Civ. 3940 (S.D.N.Y. Nov. 21, 2008), the president of City College of New York cancelled a student government election after a “special edition” of the student governmentfunded newspaper gave favorable coverage to one slate of candidates—including the newspaper’s founder, Bradley Sigal. In fact, the newspaper was distributed with flyers supporting Sigal’s candidacy and party. The president’s justification for cancelling the election was that the newspaper had become “campaign literature” in violation of three student government election rules. The court not only ruled against the college, but just as the Second Circuit had in Husain. decided the college was not entitled to qualified immunity. because college officials knew or should have known that permitting a student government to impose campaign limits on college newspapers was a content-based speech regulation in violation of the First and Fourteenth Amendments. Following 1-lusain, the judge in Sigal wrote that the election could not be altered after the endorsement because “the students had a right to so advocate, and this right could not be restricted because student activity fees were used to support the newspaper.” Id, slip op. at 15. A California case reached a similar outcome decades earlier. In Rathbone v. Day. No. 86-24205S (S.D. CaL Mar. 9, 1987). a federal judge in California struck down a policy of the California State University Board of Trustees that prohibited a newspaper receiving state funds. including student activities funds, from endorsing or opposing a candidate for public office. The school had punished a student editor after the student newspaper endorsed seven candidates and two ballot issues.
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The denial of qualified immunity in Husain and Sigal should not surprise either ASUAF or lawyers for the University system. Speaking generally, if a public university believes it has created a structure that permits university authority to be wielded without Constitutional implications, that university will come to discover it is wrong. The University of Alaska is no less liable for ASUAFs speech restrictions than it would be if ASUAF denied recognition to a religious group on the basis of its religious nature. Student governments are not capable of “laundering state money of its state nature in that way. 4) The fact that student newspaper content is not subject to the limitations placed on other parts of the institution is a well-recognized fact among federal agencies.
Although not directly on point, a brief review of how other agencies view a student newspaper’s obligations to the rules placed on its institutions it may help ASUAF and UAF officials to understand what the newspaper’s role is meant to be, For example, the Internal Revenue Service prohibits tax-exempt entities, including colleges, from attempting to influence legislation or participating in political campaigns. See 26 U.S.C. § 501(c)(3)-l(c)(3)(ii) and (iii), see also subsection (l)(d)(3) (definition of educational ) At first glance, one might rationalize that such a restriction would prohibit a student newspaper from endorsing a candidate for public office. But the IRS has long recognized that a student newspaper’s endorsement of a candidate is the fulfillment, not violation, of a tax-exempt educational institution’s mission. In Rev. Ruling 72-513, the IRS held: The expression of editorial opinion on political and legislative matters [...J [is] a commonly accepted feature of legitimate journalism, and would accordingly appear to be an accepted feature of legitimate student newspapers. The publication and dissemination of the editorial statements in question are acts and expressions of opinion by students occurring in the course of bona fide participation in academic programs and academic-related functions of the educational institution. In such circumstances, the fact that the university furnishes physical facilities and faculty advisors in connection with the operation of the student newspaper does not make the expression of political views by the students in the publishing of the newspaper the acts of the university within the intendment of section 501 (c)(3) of the Code. Similarly, the Department of Education imposes an obligation of privacy in education records on every institution receiving federal funding. See Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. FERPA defines an education record as a document that identifies a student and is maintained by an institution. Under that definition, one might reason that, if a student newspaper is “owned” by the student government, and the sflident government is “owned” by the institution that federal law requires the newspaper not to distnbute information about students
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That reasoning does not reflect legal reality, however. The Department of Education has held that “FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to ‘Education Records’ maintained by an educational agency faq’ or institution .Sce 1993 DoF Letter, cop on file aailable at ttj or
The principle to be extrapolated from these rulings is that the limitations placed on a state university in performing its state functions do not descend to the pages of the student newspaper. The content of a newspaper is not a ‘state function” and the rules that govern state actions and state property do not extend to its pages, 5) The Chancellor’s concern about the entanglement between The Sun Star and the institution it covers is legitimate, but indistinguishable from The Sun Star’s current circumstances. I wanted to briefly address a concern raised by your chancellor that you relayed to me. My understanding is that the chancellor worries that, if the ballot measure is successful, the chancellor’s office will be in the position of signing off on budget allocations. That means that The Sun Star will remain in a position where its funding is being approved by someone, and that a future chancellor could use that authority to eliminate or reduce The Sun Star’s funding. While these concerns are legitimate, someone within the state hierarchy does have to possess the authority to approve funding for The Sun Star. Whoever has that authority will be just as bound by Constitutional obligations. A Chancellor that attempts to eliminate funding due to a dislike of content in the student newspaper will trigger a First Amendment lawsuit indistinguishable from one triggered by student government censorship except for the list of defendants (though both suits would name the University). To be blunt, the desire to move funding authority away from ASUAF and to the Chancellor’s office is a gamble that, most of the time, whoever is the Chancellor will have a better understanding of his or her Constitutional obligations than the unsupervised students in ASUAF. While there will no doubt be exceptions, I expect your Chancellor would agree with the soundness of that gamble. 6) Conclusion. Given all of the above, I would suggest you share this information with ASUAF senators and UAF officials. I further suggest you immediately demand that ASUAF acknowledge that The Sun Star is not subject to ASUAF election rules. Failing that, I suggest you demand UAF direct ASUAF that attempts to dictate, punish, or influence content in The Sun Star under election rules will be overruled, as the ultimate obligation (and liability) under the Constitution fails on the University.
If it does not, and you would like to pursue a legal resolution to the problem, the Student Press Law Center maintains an Attorney Referral Network of attorneys who donate their time to take on cases like yours. We would be happy to contact the Network to assist you in finding pro bono representation. Additionally, we would he happy to assist you in publicizing ASI AF’ s attempted censorship.
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Please keep the Student Press Law Center updated on any developments in the situation and do not hesitate to contact us if we may be of further assistance. Yours. STUDENT PRESS LAW CENTER
Ain Attorney Advocate