(CN) – The 9th Circuit seems likely to affirm dismissal of an action that claims Oregon State University administrators violated free speech by trying to eliminate a conservative student newspaper. Judges noted in oral arguments that the newspaper’s executives could not pinpoint any particular administrator who engineered the alleged “unwritten policy.”
During the 2008-09 winter term at OSU, “university officials surreptitiously confiscated the few distribution bins belonging to The Liberty, and threw them in a heap in a storage yard near a dumpster,” according to the complaint by Liberty executive editor William Rogers and the newspaper’s publisher, OSU Students Alliance. They say school officials “arbitrarily classified” the paper as an off-campus publication, though it was run by students on campus.”
Rogers and the alliance sued OSU President Ed Ray, Vice President Mark McCambridge, Vice Provost Larry Roper and Facilities Director Vincent Martorello for First Amendment violations.
Heather Gebelin Hacker, who represents The Liberty’s publisher and editor, is an attorney with the Alliance Defense Fund, a conservative nonprofit that says it “fights to defend religious freedom, the sanctity of life, marriage, and the family.”
A federal judge in Eugene found for school administrators and dismissed the case last February after OSU adopted a written policy allowing equal access for all campus newspapers
“Ninth Circuit precedent establishes that a statutory or policy change by a defendant government entity is usually enough to render a claim moot,” U.S. District Judge Ann Aiken wrote in the order dismissing the lawsuit.
The alliance appealed for “past nominal and compensatory damages” against the individual defendants, leading it to the Portland-based federal appeals court on Monday.
Hacker argued before a three-judge circuit panel that university administrators authorized an “unwritten policy” at OSU to remove Liberty newspaper bins.
“Who was responsible for that unwritten policy?” Judge A. Wallace Tashima asked Hacker.
“I doubt it’s good enough to say ‘Well, they’re all responsible,” he added, noting that in Ashcroft v. Iqbal, the Supreme Court ruled that government officials could not be held individually liable unless there was evidence that they ordered a discriminatory policy.
Judge Sandra Ikuta told Hacker the court would need more specific evidence that OSU administrators created the unwritten policy.
“We’re looking for something that goes beyond mere factual allegations,” Judge Ikuta said.
Hacker countered that his clients were denied leave to further investigate the administrators, but that students’ rights were clearly violated by the unwritten policy that relegated Liberty bins to one area of campus.
“Because the policy is unwritten, it’s standardless,” Hacker said. “That’s unconstitutional in and of itself.”
While Hacker acknowledged that OSU changed its policy, she said it would be difficult to plead more specific allegations since administrators control all that information.
An attorney for the university administrators, Karla Ferrall, spoke next, arguing that there was no evidence that the administrators took any sort of action to institute the alleged unwritten policy.
Judge Carlos Bea was concerned about the lack of knowledge regarding who instituted the unwritten policy.
“What do you think somebody in the position of the OSU Students Alliance should do?” Judge Bea asked. “How are they supposed to know what to plead?”
Ferrall said because the complaint does not say who created the unwritten policy, it is deficient, but would not answer who created the policy.
“It was made by some god in Olympus?” Judge Bea asked, suggesting that plaintiffs should have the opportunity to discover who made it.
Ferrall admitted she did not know who created the unwritten policy, but reiterated that there was not enough evidence to prove that the administrators gave preferential treatment to The Daily Barometer, a more mainstream student publication.
“You’ve taken the position that you don’t really know who promulgated this unwritten rule,” Judge Bea said to Ferrall.
“Go to the depositions … and find out who wrote that policy,” Judge Bea suggested. “Then [plaintiffs] will be able to allege it in an amended complaint. Isn’t that the solution here?”
In her three-minute rebuttal, Hacker said the administrators were relying on information outside of the original complaint for their argument.
“It’s pretty hard to draw the causation inference with regard to the individual defendants,” Judge Tashima told Hacker.
At the very least, Hacker said, there is a reasonable inference that facilities head Vincent Martorello “had something to do with the policy” because he was in charge of the people who removed the bins.
“This was not an action of a rogue groundskeeper that just decided one day to go and remove all these bins,” Hacker said.
Judge Bea thanked the attorneys for their arguments.