Appeals court finds OSU at fault
U.S. Circuit Court of Appeals overturns the dismissal of 2009 lawsuit against OSU
Published: Thursday, October 25, 2012
Updated: Thursday, October 25, 2012 02:10
Three years after the U.S. District Court dismissed a case against Oregon State University officials for allegedly violating the protected speech of a conservative student newspaper, this week a Federal Appellate Court overturned the decision.
William Rogers, then executive director of the publication The Liberty, filed the original lawsuit in 2009 after seven news bins containing all copies of the monthly newspaper were removed and disposed of by university officials. OSU had previously granted The Liberty permission to place news-bins at specific campus locations. Rogers initially believed the copies had been stolen and contacted the Corvallis Police Department. The cracked bins and soggy newspapers were then discovered in a university storage yard where they had been “heaped on the ground,” according to the ruling.
OSU Director of Facilities Services, Vincent Martorello, later told Rogers, “the university’s news-bin policy prohibited The Liberty from placing bins anywhere but in the two designated locations,” according to an email included in court filings.
Martorello said the 2006 policy was intended to keep campus clean by supervising the placement of off-campus publications.
Charles Fletcher, a lawyer representing OSU, subsequently told Rogers, however, the school did not have a written policy regarding news-bin placement. In filing the original lawsuit, Rogers also took into consideration that the school had not removed copies of other publications, such as the Corvallis Gazette-Times and USA Today. The lawsuit named Martorello, President Ed Ray, Vice President Mark McCambridge and Vice Provost for Student Affairs Larry Roper.
After the lawsuit, the university then adopted a written policy regarding the placement of news bins, however the new policy did not differentiate between on- and off-campus publications. Essentially, the policy states any individual can submit a request to place news bins on campus, and can do so as long as the request regains approval and the bins are placed in designated areas.
In dismissing the claims, Judge Ann Aiken cited the new policy and said the complaint had failed to adequately tie the named defendants to the confiscation of the bins.
In its Tuesday ruling, the ninth U.S. Circuit Court of Appeals ruled that Aiken had erroneously dismissed the 2009 lawsuit and Appeals Court Judge A. Wallace Tashima overturned Aiken’s decision.
“Clearly there was no urgency and no reason to junk the bins instead of directing plaintiffs to remove them,” said appellate court Judge Tashima. “The facilities department’s decision to forego this procedure in favor of summarily confiscating the news bins [was] more like a thief in the night than a conscientious public servant violated due process.”
“We have little trouble finding constitutional violations,” Tashima wrote, in overturning the decision. “The real issue is whether the complaint properly ties the violations to the four individual defendants, who are senior university officials.”
University officials declined to comment.
Steve Clark, vice president of university relations, told the Barometer in an email that university officials were surprised by the decision.
“OSU disagrees with many of the plaintiffs’ factual characterizations, which were accepted as true by the court at this stage of the case,” Clark said.
Gabriella Morrongiello, news reporter