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HUSAIN v. SPRINGER

March 28, 2002

SARAH HUSAIN, DEVON BLINTH, COLLEEN MCGRAHAM, JEFF MCGRAHAM, KATHLEEN MCHUGH, MARC J. PESEAU, KASADORE RAMKISSON, NEIL SCHULDINER, WILLIAM WHARTON, AND MANJULA WIJERAMA, PLAINTIFFS,
V.
MARLENE SPRINGER, CAROL JACKSON, KATHLEEN GALVEZ, MARIA BRINSON, MICHAEL SILVA, WINSOME ALSTON, SIBI GEEVARGHESE, JOSEPH CANALE, JUERGEN SCHNETZER, ANDRE WOODS, CHARLO ALMEDA, CHRISTOPHER ALVAREZ, KELLYANNE BIESTY, MARY ANNE CHRISTENSEN, LUIS CRUZATTE, W. ANN REYNOLDS, ROBERT E. DIAZ, ROY MOSKOWITZ, MICHAEL SOLOMON, THE CITY UNIVERSITY OF NEW YORK, THE COLLEGE OF STATEN ISLAND, THE STUDENT ELECTION REVIEW COMMITTEE OF THE COLLEGE OF STATEN ISLAND, THE BOARD OF TRUSTEES OF THE CITY UNIVERSITY OF NEW YORK, AND MATTHEW GOLDSTEIN, DEFENDANTS.



The opinion of the court was delivered by: Gershon, District Judge.

  ORDER

Before the court are three motions, two of which were referred to Magistrate Judge Cheryl Pollak, and one of which was heard directly by this court.

I. OBJECTIONS TO JUDGE POLLAK'S REPORT AND RECOMMENDATION

Defendants City University of New York ("CUNY"), the College of Staten Island ("CSI"), the Board of Trustees of CUNY, The Student Election Review Committee ("SERC"), and the individually named members of the CSI and CUNY administrations*fn1 (collectively, the "CUNY defendants") move for an order pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) dismissing plaintiffs' claims. Plaintiffs, in turn, move for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment as to CSI President Marlene Springer. These motions were referred to Judge Pollak, who issued a Report and Recommendation ("RR") on May 1, 2001, to which both plaintiffs and defendants have filed objections. I have therefore reviewed their objections under the de novo standard of review. Fed.R.Civ.P. 72(b).

Judge Pollak provides a detailed description of the facts of this case in her Report and Recommendation on these motions dated May 1, 2001. The heart of this case is the decision to postpone a student government election at CSI in the spring of 1997. The Student Election Review Committee ("SERC") made the initial decision to postpone the election on May 1, 1997, after receiving a complaint that the College Voice, a student newspaper that was funded in part by mandatory student fees, had run an issue that contained two pages of platform statements by candidates running on the opposition Student Union slate and an endorsement on the front page encouraging readers to "Vote Student Union!"

Following the SERC's decision, the polls were closed while plaintiffs and other Student Union candidates appealed the decision to CSI President Marlene Springer, who reopened the polls later that day, but reserved the final decision on the validity of the election until after the completion of voting. On May 6, 1997, President Springer affirmed the SERC's decision nullifying the election and scheduled a new election. She explained her decision as follows:

The College Voice inappropriately used student activity fee funds to publish and distribute approximately five thousand copies of a twenty-eight page issue of the College Voice with a cover boldly encouraging a vote for a particular slate of candidates, some of whom are also staff members of the College Voice. Moreover, much of the issue was substantially devoted to supporting the endorsed slate of candidates. I find that this issue amounted to a thinly veiled student activity fee funded piece of campaign literature for the Student Union slate. As a result, the electoral process was compromised beyond its ability to be fair to all candidates, as argued by other candidates who requested nullification of the election.
The April 30th to May 3rd election is therefore declared null and void, and a new election shall be scheduled for the period Thursday May 8th, 1997 through Friday, May 16, 1997.

The Student Union candidates won all 37 races at both the canceled election and the rescheduled election.

First Amendment Claim

In her Report and Recommendation Judge Pollak correctly defines the issue as whether President Springer's decision was a constitutionally permissible content-based determination designed to confine the speech in the student newspaper within the scope of a limited public forum or whether it was a decision based on impermissible viewpoint discrimination. Judge Pollak found that there is a genuine issue as to "whether President Springer's decision was a legitimate exercise of the right of the university to regulate speech within the limited public forum, or whether her decision was based on the views expressed by the College Voice." RR 27. I agree with Judge Pollak.

I further agree with Judge Pollak's analysis as to why plaintiffs' motion for summary judgment against President Springer on this claim should be denied. Plaintiffs, in that motion, limit their argument to a claim that the mere review by President Springer of the College Voice issue in question violated their First Amendment rights. For the reasons stated by Judge Pollak, this argument does not entitle plaintiffs to relief. As Judge Pollak stated:

the fact that President Springer had to review the content of the newspaper in order to determine that it constituted campaign literature is not the controlling question presented here. Rosenberger v. Rector and Visitors of the University of Virginia made it clear that, in the context of a limited public forum, the State may engage in content discrimination in order to preserve the purposes of the limited public forum, and in doing so, may not only exclude certain groups from participating in the forum, but may also exclude the discussion of certain topics. 515 U.S. 819, 829-30, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). By necessity, the State must review the content of the speech to determine whether it is the type of speech that fits within the topics or categories of speech for which the limited public forum was established. Cf. Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 2492, 147 L.Ed.2d 597 (2000) (noting that the Court has "never held, or suggested, that it is improper" to review the content of speech to determine whether it is prohibited by a particular rule or regulation).

RR 26-27.

Given that the First Amendment claim is viable, that summary judgment cannot be granted to the plaintiffs, and that resolution of the claim must await further discovery, there is no need to further address certain disputes which plaintiffs have with Judge Pollak's particular analysis of First Amendment law in the Report and Recommendation. Similarly, disputes between the parties and with the conclusions of the Report and Recommendation regarding the significance of the 1997 SERC Rule relating to elections need not be resolved at this time. Suffice to say that plaintiffs state a claim and that the limited ground upon which plaintiffs seek summary judgment is insufficient to warrant relief.


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