Student activists may be getting the attention now for their hostile turn toward journalists trying to cover their eye-rolling protests, but they learned from administrators how to throw a fit.
And administrators have a weapon that protesters generally don’t: the ability to illegally punish the student media, with long-delayed consequences, and to continue threatening them to keep them in line.
The First Amendment would be dead letter if committed lawyers didn’t go to court to defend those whom can’t afford to secure their constitutional rights, which is why a technical ruling on appeal in the 2nd U.S. Circuit Court of Appeals in New York is so important for students’ freedom of expression.
We’ve covered this case before: The president of the College of Staten Island, part of the City University of New York, canceled a special election for the sole reason that its student paper published an endorsement issue. The case has dragged on 18 years.
The lawyer for the students, Ronald McGuire, told the court he spent 3,500 hours and $832,000 in labor and costs to deliver them victory – the school president was found personally responsible for violating their rights. Yet the 2nd Circuit slashed that to $56,000 last year, a full seven years after ruling in favor of McGuire’s clients, because McGuire didn’t win most of his claims.
Now the Student Press Law Center has filed a friend-of-the-court brief asking the full 2nd Circuit – all 22 judges – to rebuke and overturn the earlier three-judge panel that decided the rights of students weren’t worth enough for their lawyer to be appropriately compensated.
SPLC’s own writeup of its brief emphasizes the disastrous impact this fee-stiffing will have on student journalists who can’t pay for their own defense, and the huge incentive it gives administrators to suppress their rights:
“While it so happens that counsel in this case agreed (at great personal sacrifice) to represent the plaintiffs pro-bono, consider the disastrous result if that were not the case,” attorneys wrote in the brief. “Only 5.2% of Mr. McGuire’s fees would be covered due to the actions by the at-fault defendant, the former president of a large public university, and 94.8% would be absorbed by the eight blameless plaintiffs who were, at the time, college students. This result is, simply put, intolerable in a civilized society.”
The brief faults the three-judge panel for ignoring Supreme Court precedent that tells lower courts to award fees not based on a “mathematical approach comparing the total number of issues in the case with those actually prevailed upon,” but the “degree of success” for the prevailing party.
The 2nd Circuit’s landmark 2007 ruling enshrined “the principle that retaliation for student speech need not be directed at the student speaker to create a chilling effect,” the brief states. In theory, it should preclude the possibility that schools could simply withdraw an “unconstitutional policy” when challenged in court and then reinstate it later when the coast is clear.
If you stiff their attorneys on fees, that principle will be useless, because no one competent will take students’ cases, the brief argues:
Students seeking to vindicate their legal rights against their institutions already face formidable obstacles. The decision below, if not reversed, will worsen the burden from “formidable” to “practically impossible.” The State will always have a “get-out-of-fees-free” card by following a simple process: (1) do whatever you want no matter what rights you violate; (2) stop violating rights after the lawsuit starts; (3) repeat, forever.
There is no “sting of deterrence” when the Leviathan of CUNY pays a paltry $56,000 for its blatant violation of constitutional rights.
And there’s every reason for student activists to ramp up their campaign against society’s watchdogs when they see administrators rewarded for their lawlessness.
RELATED: Here’s a great way to threaten student journalism: Stiff their lawyers on fees
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