A Victory for Student Journalism at the City University of New York

The following comes via the “Community List” of Activist Attorney Ronald B. McGuire regarding a federal court ruling against a former President of City College who had the temerity to violate First Amendment rights of a student editor.

Tuesday, November 25, 11:42:27 EST 2008
Youngbloods, Elders and Friends:

After nearly eleven years of litigation, a federal judge has finally held that former City College President Yolanda T. Moses violated the First Amendment rights of the editor of a student newspaper and candidates for positions on a college student government when President Moses nullified the result sof a student government election because she concluded that a special election edition of a student newspaper was a student activity fee funded piece of campaign literature that unfairly favored a slate of candidates running in the student government election.

In June, 1998, the three student plaintiffs were organizers at the Guillermo Morales/Assata Shakur Community and Student Center at City College when a campus worker disclosed that City College security had place a hidden video surveillance camera insiode a fake smoke detector to monitor people entering and leaving the Morales/Shakur Center [YouTube].

The students filed a federal lawsuit against Moses and other CUNY and City College officials after they found the hidden camera.

Before the lawsuit was filed all three plaintiffs had been elected to the City College Graduate Student Council (GSC). However, several weeks after the students sued, President Moses nullified the results of the student government election on the ground that a special election edition of the CCNY Messenger, a student newspaper edited by one of the plaintiffs, unfairly favored a slate of ten candidates that included the three plaintiffs. As a result of President Moses’ decision, the Graduate Student Council was shut down for four months until a new election could be held.

The court dismissed the claim about the illegal surveillance onthe ground that the students could not show that the surveillance was used for any improper purpose to their detriment. However, the court held that President Moses had violated the students’ First Amendment rights by nullifying the student government election in response to material published in the student newspaper.

President Moses claimed that she was relying on content neutral student election rules and did not realize that she was violating the students’ First Amendment rights. She alslo claimed that she should not be held liable because she relied onthe avice of college and university attorneys.

Last month the court held a nonjury trial to determine whether President Moses’ reliance on the election rules was reasonable.

On November 21, 2008 U.S. District Court Judge Thomas P. Griesa issued his judgment in the bench trial of Sigal v. Moses, 98-CV-3940 (SDNY). Judge Griesa held that former City College President Yolanda Moses was liable for violating the First Amendment rights of three former students when she nullified the results of a student government election in response to opinions published in a student newspaper. Judge Griesa rejected the defense that President Moses was entitled to qualified immunity because she allegedly relied on content-neutral election rules when she concluded that the special election edition of the student newspaper was “campaign literature.”

The judge wrote “in applying the ‘objectively reasonable’ standard the court is of the opinion that the presentation of the New Millennium slate in the Messenger did not rob the paper of its character as a newspaper. Viewing the Messenger in its entirety … it was indeed a newspaper, and was entitled to First Amendment protection as such.” Decision at 15.

In response to President Moses’ testimony that she did not believe that the First Amendment was implicated because she concluded that the newspaper had become a piece of campaign literature, Judge Griesa wrote: “This consideration surely had First Amendment implications. The court believes that a reasonable consideration of the First Amendment was necessary for President Moses to be ‘objectively reasonable.'” Decision at 17.

The case establishes that college and university officials may not unreasonably rely on college or university rules to justify actions that violate students’ constitutional rights. Judge Griesa also held that by claiming she relied on the advice of college and university counsel in making her deciison, President Moses waived the attorney-client privilege and her communications with her attorneys were disclosable.

For many years, CUNY student activists have complained that University attorneys have been aiding and abetting college administrators in violating the students’ constitutional rights. Unfortunately, it often takes many years and thousands of dollars to bring a case to a point of decision in a federal court. Finally, a federal judge has now held that a college administrator cannot escape liability for violation of clearly established First Amendment rights by merely saying that she relied on advice of her attorneys.

I am extremely grateful to the plaintiffs, Bradley Sigal, David Suker, Ydanis Rodriguez, Felipe Pichardo and Hank Williams for their perseverance, dedication and commitment to achieving this significant result. I am also grateful to the board, staff and volunteers at the Morales/Shakur Center for supporting this litigation for over a decade.

Hopefully, Judge Griesa’s decision will make college and university officials realize that there are consequences when students’ rights are violated.

Judge Griesa’s 20-page decision can be viewed here. Please note it may take a few minutes for the pdf file to come up. Be patient. If you have difficulty accessing the decision, I can email the pdf file on request.

Ronald B. McGuire

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