When does a Collegiate Newspaper Adviser have First Amendment Rights?

Freedom of the press rights of student publications were established in the late 1960’s and early 1970’s. For example, the Courts have made clear that the editorial content of student newspapers is protected by the First Amendment.Dickey v. Alabama (1967) established that the editor of the school newspaper could not be suspended for the content of an editorial criticizing the Governor of the State (Henrickson, 1999). Joyner v. Whiting (1973) set the precedent that that school official could not control the content of school newspapers unless the content falls under the narrow guidelines defining obscenity. Other decisions found that while an institution is not obligated to fund student publications, the school cannot withdraw funds because it objects to the editorial content of the student newspaper (Henrickson). As a result of these cases, public colleges and universities and some private institutions formed a separate and independent corporation for the campus newspaper and many of these student newspapers became financially self supporting entities. Usually these student publishing companies had an employee of the institution who served as the adviser to the editors of the student newspaper.

Since the establishment of incorporated student newspapers, there has been a paucity of case law on freedom of the press issues. The exception was a 1990’s case involving student fees and separation of church and state issues based on the Christian editorial content of a student publication. The Court ruled that if student fees were used to fund student publications, a publication with a content orientation as a Christian publication could not be denied funding (Henrickson; Rosenburger v. Rector and Visitors of the University of Virginia, 1992/1994).

In 2005 a new issue involving freedom of press and content emerged. This new case Lane v. Simon et al. (2005) concerns the issue of what rights under freedom of press an adviser to a student newspaper possess. The Kansas State University (KSU) had established a corporation, Student Publications Inc. (SPI), to finance and govern its student newspaper the Collegian. For the past 15 years Professor Rolland Johnson held a joint appointment as a tenured professor in the School of Journalism and a yearly renewable contract as Treasurer and Director of SPI. In his capacity as Director he served as the advisor to the editors of the Collegian. However, the student editors had complete and ultimate authority over the editorial content of the newspaper.

During the spring of 2004 some students became dissatisfied with the selection of news items covered by the Collegian. Specifically, some students claimed that the newspaper failed to adequately cover diversity and other campus issues. Meetings were held among administrators, faculty and students and a student protest demanded that Professor Johnson be removed from his position at SPI. The Chairman of the Board of SPI, without consulting the SPI Board members, sent a recommendation to the Dean of the College of Arts and Science that Mr. Johnson not be reappointed to his position at SPI. He based his recommendation on a “content analysis,” a research methodology used in the social sciences, to compare the breadth and quality of news coverage in the Collegian to six other institutions’ campus newspapers. He found that news content had fallen below standards set by both professional and campus newspapers; that sub par scope and quality of news coverage had been the case consistently over the past four years; the Collegian’s content was more like a general interest newspaper than a campus publication; and news story content had developed a culture of mediocrity when compared to other campus newspapers where the standards where much higher. He also noted that Johnson’s behavior when working with others was detrimental to SPI. The Dean by letter in May of 2004 notified Johnson that he would not be reappointed. The 2003-2004 Co-Editors of the Collegian and Johnson filed suit in the Federal District Court of Kansas claiming their First Amendment freedom of press rights had been violated. KSU filed a motion with the court asking that the case be dismissed.

The Lane court noted that “content analysis” is a social science technique typically used in mass communications with precision that “measures specific aspects and characteristics of media content.” The court noted:

In this instance, Simon compared the total bylined items, the number of news stories, the number of feature stories, the percentage of campus stories, the number of sources per story, the number of sports stories, the number of bylined opinion items, and the number of diversity items in six campus newspapers comparable to the Collegian (Lane v. Simon et al., 2005, p. 12).

The Court also noted that Johnson was dismissed because of his failure to be a role model and by fostering conflict among the newspaper staff.

The Court agreed with the University’s motion to dismiss the claim, reasoning that Professor Johnson had no control over the editorial content of the paper. Judge Robinson argued that the “content analysis” findings were a measure of the quality of the campus newspaper and not the content of specific articles in the paper. The removal of the Director of SPI did not violate the freedom of press rights of the editors of the Collegian since the editors maintained control over the editorial content of the paper. The court noted that the failure to consult the Board of SPI as outlined in its by-laws could yield a state claim by the editors. In addition, Johnson’s contract may have been breached. The court noted that such state claims were not under its jurisdiction.

Some legal scholars have raised serious questions about this decision, noting that the court’s “content analysis” position of the Collegian “had nothing to do with particular stories appearing” in the newspaper and was an error (Hoover, 2005). This could serve as the basis for an appeal of this decision. Such an argument would hinge on whether the analysis conformed to the appropriate procedure required in a content analysis. Normally this technique does not consider and comment on the content of specific stories but rather is a comparative measure of the quality and overall coverage of news item across several newspapers. If “content analysis”, as a research methodology, was conducted appropriately it is difficult to determine how such an analysis would affect the content of individual stories and editorials.

While some may argue that this case will not withstand the scrutiny of an appeal, there are some things that student affairs administrators can learn from this case:

• Institutions and their administrators should not challenge the editorial content of student publications unless this content violates a narrowly prescribed definition of obscenity.
• Where control of editorial content is specifically designated to the student publication editor(s), the faculty/staff adviser may not have access to claims under freedom of press.
• Administrators need to strictly follow the proscribed procedures involved in the employment or removal of a director or adviser to a student group.
• When student groups complain about the editorial content of student newspapers, administrators should facilitate dialogue between the parties rather than taking sides or commenting on the issue.
• There is an attitude within the public both from the left and the right that universities are being taken over by ideologies that are intolerant of others’ views. Institutional officials need to continue to work toward a campus environment where there is a free exchange of ideas and where diversity of thought and intellectual debate is fostered, not stifled.

Issues such as this one get at the very crux of the purpose of higher education institutions, where students, faculty and staff have the freedom to inquire and investigate in search of understanding. In order to insure the freedom of inquiry, student affairs administrators need to achieve a balance between what is considered politically correct and the rights of the individual to inquire and debate freely. Promoting an environment that embraces First Amendment Rights and Academic Freedom should guide administrators in policy development and behavior.

References

• Dickey v. Alabama, 273F. Sup. 613 (M.D. Ala. 1967).
• Hendrickson, R. M. (1999) The Colleges, Their Constituencies and the Court (2nd Ed), Education Law Association, Dayton, OH, p. 189.
• Hoover Eric, (2005) Federal Judge Dismisses Lawsuit by Former Newspaper Adviser at Kansas State University. The Chronicle of Higher Education: Today’s News, http://chronicle.com/daily/2005/06/2005061507n.htm
• Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973).
• Lane v. Simon et al., 2005 U.S. Dist. Lexus 11330 (D. Kan. 2005).
• Rosenburger v. Rector and Visitors of the University of Virginia., 795 F. Supp. 176 (W.D. Va. 1992) aff’d. 18 F.3d 269(4th Cir. 1994).

Acknowledgement

As Annette Gibbs retires from the University of Virginia, and as a co-author of this column in Developments, I wanted to publicly thank her for her contributions to the column, ACPA, and the field of student affairs. Dr. Gibbs has mentored a significant number of professionals in the field including me. Like others, I have benefited from her knowledge, scholarship, intellectual capacity and integrity. I am sure those who have had the opportunity to work with her join me in wishing Annette the best as she moves to a new phase in her journey.