State Bd. for Community Colleges and Occupational Educ. v. Olson

• Decision Date: 20 August 1984
• Docket Number: No. 82SC271,82SC271
• Citation: 687 P.2d 429
• Parties: 20 Ed. Law Rep. 300 The STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION and Ellin Mrachek, Angelo M. Daurio, Stephen J. DeJong, Ross Forney, Thomas T. Grimshaw, Richard O. Jones, Gwendolyn A. Thomas, Fred W. Valdez, Jr., Kirk Wagner, Members of The State Board for Community Colleges and Occupational Education; The Pikes Peak Community College Council and Norman Pledger, Betty Diatt, Mildred Guy, Jerry Jones, James Lunghofer, Members of the Pikes Peak Community College Council; The Pikes Peak Community College Student Senate and Jeff Johnson, Carl Davis, Jane Wertz, Pam Shaver, Cheryl Shaver, Cathy Shaver, Fred Skinner, Alvin Wilson, Dee Steinbaugh, Members of the Pikes Peak Community College Senate; and Donald W. McInnis, John Rodwick and Robert Henry, Members of the Administration of Pikes Peak Community College, Petitioners, v. Judith OLSON, Respondent.
• Court: Colorado Supreme Court

Page 429

687 P.2d 429

20 Ed. Law Rep. 300

The STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION and Ellin Mrachek, Angelo M. Daurio, Stephen J DeJong, Ross Forney, Thomas T. Grimshaw, Richard O. Jones Gwendolyn A. Thomas, Fred W. Valdez, Jr., Kirk Wagner Members of The State Board for Community Colleges and Occupational Education; The Pikes Peak Community College Council and Norman Pledger, Betty Diatt, Mildred Guy, Jerry Jones, James Lunghofer, Members of the Pikes Peak Community College Council; The Pikes Peak Community College Student Senate and Jeff Johnson, Carl Davis, Jane Wertz, Pam Shaver Cheryl Shaver, Cathy Shaver, Fred Skinner, Alvin Wilson, Dee Steinbaugh, Members of the Pikes Peak Community College Senate; and Donald W. McInnis, John Rodwick and Robert Henry, Members of the Administration of Pikes Peak Community College, Petitioners, v. Judith OLSON, Respondent.

No. 82SC271.

Supreme Court of Colorado.

Aug. 20, 1984.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Jo Ann Soker, First Asst. Atty. Gen., Bruce Pech, Asst. Atty. Gen., Denver, for petitioners.

Hobbs/Bethke & Associates, Larry F. Hobbs, P.C., William P. Bethke, Denver, for respondent.

QUINN, Justice.

We granted certiorari to review the decision of the court of appeals in Olson v. State Board for Community Colleges and Occupational Education, 652 P.2d 1087 (Colo.App.1982), in order to consider whether a journalism teacher who also served as faculty advisor to a student newspaper at a community college has standing to raise First Amendment challenges to the termination of funding for the newspaper. The plaintiff-respondent, Judith Olson, along with three student members of the newspaper staff, sought injunctive relief under 42 U.S.C. § 1983 against various defendants in their individual and official capacities. The district court entered a summary judgment in favor of the defendants because, in its view, Olson failed to establish injury to her First Amendment interests and was not entitled to assert the constitutional interests of nonparty students. The district court also ruled that the three student plaintiffs lacked standing because they failed to establish any injury in fact to their First Amendment interests. Olson appealed the summary judgment to the court of appeals. Addressing only Olson's individual First Amendment claims and declining to resolve the issue of third party standing, the court of appeals reversed the summary judgment and held that Olson had established an injury to her First Amendment interests and thus had the requisite standing to seek injunctive relief against the defendants with respect to the termination of funding for the student newspaper. We reverse the judgment of the court of appeals as to those issues relating to Olson's First Amendment claims. We conclude, however, that Olson should be permitted to assert the students' First Amendment interests and, therefore, reverse that part of the summary judgment denying her third party standing and remand the case for further proceedings.

I.

During the events in question, which occurred in 1979 and 1980, Judith Olson was a journalism instructor in various courses at Pikes Peak Community College, a two-year college offering unrestricted admissions for high school graduates and students with comparable qualifications. ¹ In addition to her teaching functions, Olson served as faculty advisor to the student newspaper, the Pikes Peak News (News). Publication of the News was, according to Olson's deposition testimony, a cocurricular activity that provided her with a "motivational device" for her newspaper design classes and offered student staff members an outlet for student expression and an opportunity for practical application of classroom theory. The articles published in the News included those submitted by both journalism students and other student and nonstudent sources. Olson's role as faculty advisor consisted of monitoring printing costs and advertising revenue resulting from publication, and of reviewing articles for possible libel and obscenity. Exclusive of these functions, Olson exercised no control over the content of the student newspaper.

The budget for student activities was funded from mandatory student activity fees. The category of "student activities" included such functions as the student government, the student newspaper, and several student clubs. Funds were allocated for these student activities by the student senate, which acted with the approval of the college administrators. On June 1, 1979, the student senate met to consider proposed budget allocations for the 1979-80 school year. Although $12,456 had been tentatively allocated to the News by the student senate budget committee, the senate at the June 1 meeting voted to cut off all funding for the News. The funding cutoff was apparently prompted by a feeling that the content of the News was not representative of the views of the student body as a whole. ²

During the summer of 1979 the student senate offered the News a $5,000 subsidy for the 1979-80 school year. The subsidy was conditioned on $1,000 free advertising for student government, the publication of a limited number of issues, and the drafting of a constitution for the News. The newspaper staff, determining that the proposed subsidy was inadequate to cover operational costs, refused the offer.

Publication of the News ceased with the student senate's funding decision of June 1, 1979. However, throughout the 1979-80 academic year students published an alternative publication, the Pikes Peak Fuse (Fuse). The Fuse, a lower cost publication than the News, had a magazine-type format rather than the typeset newspaper format of the News. The Fuse was funded entirely from advertising revenues and $950 from the college's operational budget. Olson, who continued in the role as faculty advisor, modified her design class from one of newspaper design to one of magazine design in order to take advantage of the opportunities for practical experience presented by the Fuse. ³

In August 1979 Olson and three student members of the 1978-79 News staff, Marti Dyer-Allison, Marie Moon, and Vicki Evans, filed a complaint against the State Board for Community Colleges and Occupational Education, the Pikes Peak Community College Council, the Student Senate, the individual members of these bodies, and three college administrators. ⁴ The complaint, which was based on an alleged violation of the federal civil rights statute, 42 U.S.C. § 1983, alleged that the student senate, acting pursuant to the authority which the other defendants had granted it, terminated funding for the News because of the senate's disapproval of the content and editorial policies of the News. Asserting that the publication of the News provided a practical training vehicle for students in the journalism department and served "as a forum and outlet for student expression," the plaintiffs claimed that the funding cutoff violated their rights to freedom of the press, speech, and association in the academic community, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Olson and the student plaintiffs sought injunctive relief to prohibit the funding cutoff and to restore funding at $12,400.

Although Olson's complaint was not precisely cast in terms of third party standing, her deposition testimony leaves no doubt that she was asserting the First Amendment rights of students at Pikes Peak Community College. She testified, for example, as follows: that the funding cutoff "had rather severe implications for students as well as the program;" that "if your students are not allowed to have the experience of successfully incorporating their skills development with practical experience simply because of the disagreement of content, that certainly speaks to the First Amendment;" that "I don't think I can separate myself and what was done from the students because the program and the publication [were] interrelated [and] I don't think they are two separate things;" and that "I am also Plaintiff in this case because I believe in the First Amendment and I believe that cutting off funds is the final act of censorship on the student publication or any publication." Indeed, the defendants and the district court treated Olson's complaint as including not only claims on her own behalf but also a third party claim on behalf of the First Amendment interests of students. ⁵

The district court granted the defendants' motion for summary judgment on the ground that Olson and the other plaintiffs lacked standing to challenge the funding cut. The court ruled that Olson, as faculty advisor, had no constitutional right to exercise control over the content of the News and no constitutional right to use the News as a teaching tool and, hence, the funding cut did not cause injury to any legally protected interest. Because the funding cut did not abridge Olson's constitutional rights, the court also ruled that she was not entitled to assert the First Amendment rights of students at Pikes Peak Community College. The district court further ruled that two of the student plaintiffs, Marti Dyer-Allison and Marie Moon, lacked standing because, having graduated in June of 1979, their First Amendment rights could not have been curtailed by the student senate action, which related solely to the 1979-80 academic year. With respect to the third student plaintiff, Vicki Evans, who did attend Pikes Peak Community College during the 1979-80 academic year, the court ruled that she lacked standing because she suffered no injury in fact, having exercised her First Amendment rights through the "substitute forum" of the Fuse.

Olson appealed, but the student plaintiffs did not. The court of appeals reversed the summary judgment against Olson and remanded the case for further proceedings. It held that Olson had standing to...