Stanley v. Magrath, 83-1058

Citation719 F.2d 279
Decision Date11 October 1983
Docket NumberNo. 83-1058,83-1058
Parties14 Ed. Law Rep. 75, 9 Media L. Rep. 2352 Catherine M. STANLEY, Jeffrey A. Goldberg, Michael Douglas, and Christopher Ison, each individually and as Editors of The Minnesota Daily, The Minnesota Daily, and The Board of Student Publications, Appellants, v. C. Peter MAGRATH, individually and as President of the University of Minnesota, and Charles H. Casey, William B. Dosland, Erwin L. Goldfine, Lauris D. Krenik, Robert Latz, David M. Lebedoff, Charles F. McGuiggan, Wenda Moore, Lloyd H. Peterson, Mary T. Schertler, Neil C. Sherburne, Michael W. Unger, Verne Long, Willis Drake, and David Roe, each individually and as a member of the Board of Regents of the University of Minnesota, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Tanick & Heins, Marshall H. Tanick, Samuel D. Heins, Minneapolis, Minn., for appellants.

Amy Silberberg, Legal Counsel, Minnesota Civil Liberties Union, Minneapolis, Minn., amicus curiae brief of The Minnesota Civil Liberties Union and The Associated Collegiate Press; Owen Gleason, Eden Prairie, Minn., of counsel; Steven Daily and Chris Kobin, MCLU Volunteer Law Students.

Leonard J. Keyes, Terence N. Doyle, Bruce W. Mooty, St. Paul, Minn., for appellees; Stephen S. Dunham, R. Joel Tierney, Minneapolis, Minn., of counsel.

Before LAY, Chief Judge, SWYGERT, * Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

At the end of the 1978-79 school year, the Minnesota Daily, the student newspaper of the Twin Cities campuses of the University of Minnesota, published an especially controversial issue. The Board of Regents, the governing body of the University, later changed the method of funding the newspaper. In the past, a compulsory fee had been exacted from every student to support the Daily. The Board voted to allow students to obtain a refund of this fee. Its stated reason was solicitude for students who objected to buying a newspaper they did not want. Our study of the record, however, leaves us with the definite and firm conviction that this change in funding would not have occurred absent the public hue and cry that the Daily's offensive contents provoked. Reducing the revenues available to the newspaper is therefore forbidden by the First Amendment, as made applicable to the states by the Fourteenth, and the Daily is entitled to an injunction restoring the former system of funding. 1

I.

In June 1979 the "Finals Week" edition or "Humor Issue" of the Minnesota Daily, styled in the format of sensationalist newspapers, contained articles, advertisements, and cartoons satirizing Christ, the Roman Catholic Church, evangelical religion, public figures, numerous social, political, and ethnic groups, social customs, popular trends, and liberal ideas. In addressing these subjects, the paper frequently used scatological language and explicit and implicit references to sexual acts. There was, for example, a blasphemous "interview" with Jesus on the Cross that would offend anyone of good taste, whether with or without religion. No contention is made, however, that the newspaper met the legal definition of obscenity.

This issue generated vehement criticism. Members of the Board of Regents and University administrators received numerous letters deploring the content of the "Humor Issue" from church leaders, members of churches, interested citizens, students, and legislators, who in many cases were responding to the complaints of constituents. On June 8, 1979, the Regents unanimously passed a resolution stating that they were "compelled to deplore the content of the June 4-9, 1979 issue of the Minnesota Daily." University President C. Peter Magrath sent this resolution to the acting president of the Board of Student Publications, stating that "the Regents will want some accounting as to what corrective action is contemplated in response to their resolution."

In another resolution passed unanimously on July 13, 1979, the Regents stated that the issue in question was "flagrantly offensive" and established an ad hoc committee "to review with the President the concerns expressed and the recommendations of the President regarding the Minnesota Daily." Among other things, the Regents directed the special committee to consider the "appropriate mechanism for circulation and financial support for the Minnesota Daily."

At a meeting of the Regents in August 1979, the ad hoc committee made its report. The committee recommended that the Regents not take any action at that time to change the funding of the paper. In support of its recommendation, committee members stated that the fees issue should be left to the normal funding procedure, under which student committees and the administration would make recommendations on which the Board would vote in May 1980. 2 They also offered the opinion of the University attorney that changing the fees immediately following the "Humor Issue" could be viewed as punitive action in violation of the First Amendment. The committee's resolution was passed, although several Regents expressed their unhappiness with waiting until May of the next year to take action on changing the funding.

Meanwhile, both houses of the Minnesota Legislature held committee hearings regarding the "Humor Issue." The Senate Committee on Education met on June 25, 1979, and the House Education Committee, Higher Education Division met on November 14, 1979. In December, the House committee chairman wrote the chairman of the Board of Regents stating that the vast majority of the Division recommended that the "Regents allow students a means to withdraw their individual financial support from the Daily."

In March of 1980, the Student Services Fees Committee, composed of elected students, faculty members, and administrators, recommended by a 6-5 vote that a refund system not be instituted and in addition that the Board of Publications Fees be increased by 11.6%. In April, the President sent the Regents his recommendation in favor of a refundable fee. Following the release of this recommendation, the Twin Cities Campus Assembly voted 99-7 against changing to a refundable fee.

On May 9, 1980, the Board of Regents passed, by an 8-3 3 vote, a resolution that instituted a refundable fee system for a one-year trial period, allowing objecting students to obtain a refund of that part of the service fee allotted to the Board of Student Publications. The resolution also increased the Board of Student Publications fee from $1.80 to $2.00 for the 1980-81 school year. In May of 1981 and again in May of 1982, the Board voted in favor of retaining the refund system and on both occasions also raised the Board of Student Publications fee, from $2.00 to $2.12 in 1981 and from $2.12 to $2.56 in 1982.

Catherine M. Stanley, Jeffrey A. Goldberg, Michael Douglas, and Christopher Isom, former editors of the Daily, the Daily itself, and the Board of Student Publications then brought this suit against the President of the University and the Members of the Board of Regents in their individual and official capacities. They claimed, among other things, that the Regents' change of policy affected the Daily adversely and that it was motivated by public opposition to the contents of the "Humor Issue." After trial to the court, the complaint was dismissed. The District Court's key finding was that "[o]ne of the motivations for establishment of the refundable fee system was to respond to the concerns of those students who objected to being coerced into giving financial support to the Daily," Catherine M. Stanley v. C. Peter Magrath, No. 3-80-452, slip op. at 8 (D.Minn. December 28, 1982). It added that the Regents' action was "rational," id., and held that the First Amendment had not been violated. This appeal followed.

II.

Plaintiffs claim that the Regents' decision to institute the refundable fee system for the Board of Student Publications was in response to the content of the "Humor Issue" and hence violates the First Amendment. A public university may not constitutionally take adverse action against a student newspaper, such as withdrawing or reducing the paper's funding, because it disapproves of the content of the paper. Joyner v. Whiting, 477 F.2d 456, 460 (4th Cir.1973); Antonelli v. Hammond, 308 F.Supp. 1329, 1337-38 (D.Mass.1970); cf. Papish v. University of Missouri Curators, 410 U.S. 667, 670-71, 93 S.Ct. 1197, 1199-1200, 35 L.Ed.2d 618 (1973) (invalidating student's expulsion that was motivated by disapproval of contents of newspaper that student distributed on campus). Thus, to prevail on their First Amendment claim, the plaintiffs must show that the Regents' decision was adverse and that the decision was substantially motivated by the content of the newspaper. See Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 416, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Mt. Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).

The District Court emphasized at several points that the refund system, when considered in the context of the simultaneous increases in the amount of the publications fee, did not reduce the total amount of the Daily's fee support. Slip op. at 7, 8, 18. The Court reached this conclusion by comparing the amount received from student fees in the year prior to the funding change (1979-80) to the amount received in the year following the funding change (1980-81). Despite the money lost due to refunds, the amount received in 1980-81 was $15,826.22 greater than the amount received in 1979-80, because the Regents had raised the Board of Student Publications fee from $1.85 to $2.00. In addition, the amount received in 1981-82 was $14,914.57 greater than that received in 1980-81, because of a further increase in the fee.

We conclude nevertheless that the Daily has suffered an injury in fact. Although the total amount of fee support...

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