Follow-up: “A Victory for Student Journalism at the City University of New York”

Activist Attorney Ronald B. McGuire follows up an earlier email to his “Community List” regarding a federal court ruling against a former President of City College found guilty of violating the First Amendment rights of a student editor.

December 1 — Youngbloods, Elders and Friends:

Today’s edition of the New York Law Journal (NYLJ) features a front page article reporting a federal judge’s decision to hold former City College President Yolanda Moses liable in a civil rights lawsuit brought by three former City College student activists who worked at the Guillermo Morales/Assata Shakur Community and Student Center at City College.

Excerpts from today’s NYLJ article on the Sigal v. Moses decision are reprinted below.

Please note that the NYLJ article below incorrectly states that the former president of the College of Staten Island, Marlene Springer, was granted qualified immunity by the Second Circuit Court of Appeals in Husain v. Springer, 494 F.3d 108 (2d Cir. 2007).  Actually, the Second Circuit reversed the district court’s decision granting President Springer qualified immunity and remanded the case back to the district court for a trial on the same issue that former President Moses was tried on, namely whether it was objectively reasonable for a college president to nullify a student government election in response to articles published in a college newspaper that the former college president believed was biased in favor of a slate of candidates.

Hopefully this court victory will help take some of the pressure off of the students and community members who are struggling to maintain the Morales/Shakur Center at City College.

Ronald B. McGuire




Page printed from:

©2008 New York Law Journal Online

Judge Finds College Head Violated Speech Rights
Mark Hamblett


Former City College of New York President Yolanda Moses won the sympathy of a federal judge for trying to ensure a fair student election over 10 years ago, but the law was not on her side.

Southern District Judge Thomas Griesa ruled that precedent compelled him to find that Ms. Moses violated the First Amendment and was not entitled to qualified immunity when she canceled an election she felt had been influenced by a student newspaper in violation of college rules.

The ruling in Sigal v. Moses, 98 Civ. 3940, resulted in only minimal damages and was made reluctantly, as Judge Griesa said Ms. Moses had acted in good faith when she found that a newspaper supported by student fees had essentially become a “piece of campaign literature.”

The decision will be published Wednesday. 

The newspaper was the CCNY Messenger, founded by then-student Bradley Sigal. It was published three times before Mr. Sigal issued a special edition leading up to the April election of candidates for the Graduate Student Council.

The problem for Mr. Sigal and Ms. Moses was that page three of the four-page newspaper gave more than favorable coverage to a slate of candidates running for office under the banner of The New Millennium. One of those candidates was Mr. Sigal.

The newspaper, funded by mandatory student fees, was also distributed with election flyers supporting New Millennium candidates.

While a student election review committee found that The New Millennium did not run afoul of student election rules, Ms. Moses disagreed.

She deemed that the slate violated three rules – it used student activity fees for a newspaper to influence the election, the slate spent more than $500 on the campaign (by using the newspaper) and the slate used student government offices in the campaign.

Ms. Moses canceled the results of the election in which The New Millennium slate ended up winning nine, and possibly 10 of the 12 open seats on the council. In the rescheduled election, in September 1998, The New Millennium slate won only five of 15 seats.

Judge Griesa said he was hamstrung by the lack of evidence in the record that Ms. Moses considered the First Amendment in deciding to cancel the election.

Ms. Moses testified that, before deciding to nullify the election, she consulted with both Diane Irvine, City College counsel, and Michael Solomon, the general counsel for the City University of New York.

“Surprisingly, when asked by the court if she discussed the First Amendment with either attorney, she replied in the negative, stating ‘that was not part of our conversations,'” Judge Griesa said. “When asked if she gave any consideration to the First Amendment implications of the problem, she replied in the negative.”

Ms. Moses also said she had read a 1995 memorandum from then-CUNY General Counsel Robert E. Diaz called “Regulation of Speech by an Institution of Higher Learning.” The memo warns that a public university cannot impose a content-based prohibition absent a compelling state interest.

Ms. Moses testified that she considered the memo but ultimately “set it aside because it wasn’t relevant” since she “wasn’t focused at all on the content” of the newspaper.

Judge Griesa said the trial record on the degree of consideration of the First Amendment was “most unsatisfactory” and he felt Ms. Moses had done herself a “disservice” by her testimony, something he said may be the result of the fact that the incidents occurred more than 10 years ago. He also noted that neither Ms. Irvine nor Mr. Solomon were ever deposed in the case.

The U.S. Court of Appeals for the Second Circuit decided a similar case last year concerning an election at the College of Staten Island, also part of the CUNY system.

In Husain v. Springer, 04-CV-5250,the circuit found a First Amendment violation but granted summary judgment for the college president on the ground of qualified immunity (NYLJ, July 17, 2007).

“In the present case, it must be held (and it was ultimately conceded by the defense) that there was a violation of plaintiffs First Amendment rights in light of Husain,” Judge Griesa said.

The judge went on to say that he did not doubt the sincerity of Ms. Moses’ belief that the Messenger had been the equivalent of a piece of campaign literature.

“But, 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,” Judge Griesa said. “Viewing the Messenger in its entirety . . . it was indeed a newspaper, and was entitled to First Amendment protection as such.”

The judge then said that he was bound by the decision in Husain to the effect that the law was “plainly apparent at the time of the events in question.”

Judge Griesa said Ms. Moses was trying to have “a valid and fair election process” amid campus rumors that the election had been unfair. But given Second Circuit precedent, he said, that was not enough.

“One might reasonably say that this is sufficient to provide her with immunity from being sued for her actions,” he said. “But, according to the law as forcefully articulated in Husain, it is not.”

The judge awarded Mr. Sigal compensatory damages of $337 – the cost of publishing the special election edition of the Messenger. He awarded nominal damages to Mr. Sigal’s two co-plaintiffs.

But the judge ruled against the plaintiffs on their retaliation claim.

Ronald McGuire represented the plaintiffs pro bono. He said The New Millennium candidates were involved in protests against the administration for ending the college’s open admissions policy, raising tuition and reducing student aid and ending some remedial programs.

“The [Sigal] case established that colleges and universities cannot simply escape liability for First Amendment violations by saying they relied on college regulations or relied on advice of counsel,” Mr. McGuire said.

Assistant Attorney General Steven L. Banks represented the college defendants.

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