IN THE

No. 01-4155

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MARGARET HOSTY, JENI PORCHE, and STEVEN P. BARON, individually and d/b/a INNOVATOR,

Plaintiffs-Appellees,

PATRICIA CARTER,

Defendant-Appellant,

and

GOVERNORS STATE UNIVERSITY; BOARD OF TRUSTEES OF GOVERNORS STATE UNIVERSITY; DONALD BELL; TOMMY DASCENZO; STUART FAGAN; PAUL KEYS; JANE WELLS; DEBRA CONWAY; PEGGY WOODARD; FRANCIS BRADLEY; PETER GUNTHER; ED KAMMER; DOROTHY FERGUSON; JUDY YOUNG; CLAUDE HILL IV; and PAUL SCHWELLENBACH,

Defendants.

)

) )

)

))

)

On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 01 C 0500

The Honorable

SUZANNE B. CONLON,

Judge Presiding.

BRIEF OF DEFENDANT-APPELLANT PATRICIA CARTER

JAMES E. RYAN

Attorney General

State of Illinois

JOEL D. BERTOCCHI

Solicitor General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3312

Attorneys for Defendant-Appellant.

MARY E. WELSH

Assistant Attorney General

100 West Randolph St., 12th Floor

Chicago, Illinois 60601

(312) 814-2106

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................................................................................ iii

JURISDICTIONAL STATEMENT.................................................................................................. 1

ISSUES PRESENTED..................................................................................................................... 2

STATEMENT OF THE CASE......................................................................................................... 3

STATEMENT OF FACTS............................................................................................................... 4

Background........................................................................................................................... 4

Plaintiffs’ Tenure at the Innovator........................................................................................... 6

The Complaint..................................................................................................................... 10

Defendants’ Summary Judgment Motion.............................................................................. 12

SUMMARY OF ARGUMENT...................................................................................................... 15

ARGUMENT................................................................................................................................. 16

A. Plaintiffs Failed to Demonstrate That Every Reasonable University Administrator Would Be Compelled to Conclude that It Was Unlawfu

to Require Content-Neutral Review and Approval of the Student

Paper Before It Was Printed.................................................................................... 31

B. Plaintiffs’ Authorities Are Unpersuasive........................................................ 33

CONCLUSION............................................................................................................................. 34

TABLE OF AUTHORITIES

Cases Page(s)

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)............................................................................................................. 4

Anderson v. Romero,

72 F.3d 518 (7th Cir. 1995)................................................................................................ 29

Antonelli v. Hammond,

308 F. Supp. 1329 (D. Mass. 1970)................................................................................... 33

Baxter by Baxter v. Vigo County School Corp.,

26 F.3d 728 (7th Cir. 1994)................................................................................................ 20

Bd. of Regents of Univ. of Wisc. v. Southworth,

529 U.S. 217 (2000)..................................................................................................... 22, 31

Bellaver v. Quanex Corp.,

200 F.3d 485 (7th Cir. 2000).............................................................................................. 16

Bethel School Dist. No. 403 v. Fraser,

478 U.S. 675 (1986)........................................................................................................... 20

Celotex Corp. v. Catrett,

477 U.S. 317 (1986)........................................................................................................... 17

Chan v. Wodnicki,

123 F.3d 1005 (7th Cir. 1997)............................................................................................ 28

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,

473 U.S. 788 (1985)............................................................................................... 19, 20, 23

Fujishima v. Bd. of Educ.,

460 F.2d 1355 (7th Cir. 1972)............................................................................................ 33

Gernetzke v. Kenosha School Dist. No. 1,

274 F.3d 464 (7th Cir. 2001),

cert. denied, 2002 U.S. LEXIS 2849 (April 22, 2002)......................................................... 20

Gitlow v. New York,

268 U.S. 652 (1925)........................................................................................................... 18

Gossmeyer v. McDonald,

128 F.3d 481 (7th Cir. 1997)................................................................................................ 1

Hazelwood School District v. Kuhlmeier,

484 U.S. 260 (1988).................................................................................................... passim

Hill v. Colorado,

530 U.S. 703 (2000)..................................................................................................... 19, 23

Johnson v. University of Wisconsin-Eau Claire,

70 F.3d 469 (7th Cir. 1995)................................................................................................ 18

Joyner v. Whiting,

477 F.2d 456(4th Cir. 1973)............................................................................................... 33

Kernats v. O’Sullivan,

35 F.3d 1171 (7th Cir. 1994).............................................................................................. 29

Khuans v. School Dist. 110,

123 F.3d 1010 (7th Cir. 1997)............................................................................................ 29

Kincaid v. Gibson,

191 F.3d 719 (6th Cir. 1999)........................................................................................ 31-32

Mills v. First Fed. Sav. & Loan Ass’n,

83 F.3d 833 (7th Cir. 1996)................................................................................................ 17

Mitchell v. Forsyth,

472 U.S. 511, 105 S. Ct. 2806 (1985).................................................................................. 1

Muller by Muller v. Jefferson Lighthouse School,

98 F.3d 1530 (7th Cir. 1996).............................................................................................. 20

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n.,

460 U.S. 37 (1983)............................................................................................................. 19

Schiff v. Williams,

519 F.2d 257 (5th Cir. 1975).............................................................................................. 33

Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975)........................................................................................................... 19

Stanley v. Magrath,

719 F.2d 279 (8th Cir. 1983).............................................................................................. 34

Tinker v. Des Moines Independent Community School Dist.,

393 U.S. 503 (1969)..................................................................................................... 20, 21

Widmar v. Vincent,

454 U.S. 263 (1981)..................................................................................................... 18-19

Wilson v. Layne,

526 U.S. 603 (1999)............................................................................................... 28-30, 32

Constitutional Provisons, Statutes, Rules, Regulations

U.S. Const. amend. I................................................................................................................. passim

28 U.S.C. § 1291............................................................................................................................. 1

28 U.S.C. § 1331............................................................................................................................. 1

28 U.S.C. §1343.............................................................................................................................. 1

28 U.S.C. § 2202............................................................................................................................. 1

42 U.S.C. § 1983............................................................................................................................. 1

Fed. R. Civ. P. 4(m).......................................................................................................................... 1

Fed. R. Civ. P. 56..................................................................................................................... passim

JURISDICTIONAL STATEMENT

Plaintiffs filed a complaint pursuant to 42 U.S.C. § 1983, alleging that Defendants had violated their First and Fourteenth Amendment rights and seeking declaratory, injunctive, and monetary relief. Doc. 1. Because of the Eleventh Amendment, the district court lacked jurisdiction over all claims against Defendants Governors State University and its Board of Trustees, and over the monetary claims against the individual defendants in their official capacities. Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th Cir. 1997). The court had jurisdiction only over Plaintiffs’ compensatory damages claims against the individual Defendants who were served and only in their individual capacities under 28 U.S.C. §§ 1331, 1343, 2202.

On April 30, 2001, an order was entered dismissing with prejudice all of Plaintiffs’ claims against Defendants Governors State University and the Board of Trustees, and Plaintiffs’ claims for monetary relief against the individual Defendants in their official capacities, for lack of jurisdiction under the Eleventh Amendment. Doc. 15 at 3-4. On November 16, 2001, pursuant to Fed. R. Civ. P. 4(m), an order was entered dismissing Defendants Ferguson and Hill because they had not been served. Doc. 57. In that same order, the court also granted summary judgment in favor of all the other individual Defendants except Patricia Carter, finding that she was not entitled to qualified immunity. Id. Defendant Carter filed a notice of appeal from that order on December 3, 2001. Doc. 58. This Court has jurisdiction over Defendant Carter’s appeal pursuant to 28 U.S.C. § 1291 under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985).

ISSUES PRESENTED

1. Whether Plaintiffs failed to provide sufficient evidence from which a reasonable jury could find that Dean Carter violated their First Amendment rights by requesting that the University’s student newspaper be reviewed and approved prior to printing.

2. Whether Plaintiffs failed to demonstrate that Dean Carter was not entitled to qualified immunity for requesting that the University’s student newspaper be reviewed and approved prior to printing.

STATEMENT OF THE CASE

Plaintiffs Margaret Hosty and Jeni Porche were editors and writers, and Steven Baron was a writer, for Defendant Governors State University’s student newspaper, the Innovator. They filed a complaint alleging among other things that Defendant Patricia Carter, the University Dean responsible for student activities such as the Innovator, had violated their First Amendment rights by requesting that the paper be submitted for review and approval prior to printing. They sought declaratory and injunctive relief as well as compensatory and punitive damages. All claims against Defendants Governors State University and the Board of Trustees were dismissed with prejudice on Eleventh Amendment grounds, as were Plaintiffs’ claims for monetary relief against the individual Defendants in their official capacities. Defendants Ferguson and Hill, who had not been served, were dismissed as parties. The court also granted summary judgment in favor of all the other individual Defendants except Patricia Carter, finding that there was a question of fact as to whether her conduct had violated Plaintiffs’ clearly established First Amendment rights. Dean Carter filed an interlocutory appeal from that order.

STATEMENT OF FACTS

Background¹

Plaintiffs Margaret Hosty and Jeni Porche are students at Defendant Governors State University (the University); Plaintiff Steven Baron is a University alumnus. Docs. 36, 43 at ¶¶ 1-3. Ms. Porche and Ms. Hosty were appointed the Editor-in-Chief and Managing Editor, respectively, of the University’s student newspaper, the Innovator, from May 2000 until the end of the Spring 2001 trimester (April 30, 2001). Docs. 36, 43 at ¶¶ 17-19. In the Fall 2000 trimester, Mr. Baron was a staff reporter. Docs. 36, 43 at ¶ 20. The Student Communications and Media Board (SCMB) publishes the Innovator and approves its budget and expenditures. Docs. 36, 43 at ¶¶ 35, 36. The SCMB has seven members, of which four are students, two are faculty members, and one is from the support staff. Docs. 36, 43 at ¶ 37.

The Innovator has a faculty advisor, whose role is to counsel and advise students on journalistic issues, including libel, and who normally signed off on the paper before it went to the printer. Docs. 36, 43 at ¶¶ 45-46. Although Geoffrey de Laforcade was not on the University faculty after August 2000, he remained the paper’s advisor until his contract expired in December 2000. Docs. 36, 43 at ¶ 44; Doc. 44 at Carter dep. at 20. Plaintiffs did not like his successor, who was appointed by Dean Carter and approved by the SCMB. Doc. 44 at Hosty dep. at 150, 152-53. Decisions as to subject matter and content of the paper were made by the editorial board, not the advisor. Doc. 44 at Hosty dep at 24-25. The University’s written media policy states that the student staff determines the content and format of each publication without censorship or advance approval. Docs. 36, 43 at ¶ 38; Doc. 44 at Bell dep. at ex. 1 (policy). The paper was supposed to be printed twice a month, but no Plaintiff remembers that this occurred while they were students at the University. Docs. 36, 43 at ¶ 21.

Defendants are or were employees or students (or both) at the University. Defendant Stuart Fagan, the University President since April 1, 2000, delegated student media issues to Defendant Paul Keys, the University Provost and Vice-President since October 23, 2000,² who reports to him. Docs. 36, 43 at ¶¶ 7, 8. Provost Keys, in turn, delegated these issues to Defendant Patricia Carter, the Dean of Student Affairs and Services. Docs. 36, 43 at ¶ 6, Doc. 43 at ¶ 7. Dean Carter is responsible for the Division of Student Life, which is responsible for student organizations including the SCMB. Docs. 36, 43 at ¶¶ 42, 43. Donald Bell, the Program Director in the Student Life Division of Student Affairs and Services, was administrative liaison to the SCMB before mid-July 2000 and after mid-November 2000. Docs. 36, 43 at ¶ 4. Tommy Dascenzo, his predecessor, retired on April 1, 2001. Docs. 36, 43 at ¶ 5. In 1999, he had recommended that Dr. Laforcade be appointed the paper’s advisor, and Dean Carter had approved the appointment. Doc. 44 at Carter dep. at 21. Defendant Debra Conway is a secretary in the Student Life Division. Docs. 36, 43 at ¶ 10. Defendant Paul Schwellenbach is the University’s Mailing Service Supervisor. Docs. 36, 43 at ¶ 16. Other Defendants are members of the SCMB: Frances Bradley, the Coordinator of the Academic Computer Services Lab; Peter Gunther, a faculty member; and Judy Young, a student and employee. Docs. 36, 43 at ¶¶ 12, 13, 15. Ed Kammer, a student, is the SCMB chair. Docs. 36, 43 at 14.

Plaintiffs’ Tenure at the Innovator

Plaintiffs Hosty and Porche published their first issue of the Innovator on July 10, 2000 and their fourth issue on October 31, 2000. Docs. 36, 43 at ¶ 27; see Doc. 44 at Fagan dep. at ex. 3 (the paper). Shortly thereafter, based on letters to Dean Carter from Defendants Bell, Conway, and Ceska, charges were filed against Plaintiff Hosty for violating the student code of conduct on October 25, 2000 by entering the Student Life office and removing files without authorization and for refusing to be interviewed about the incident by the University police. Doc. 44 at Carter dep. at 37-41 & Ex. 1. After a hearing, Ms. Hosty was disciplined, and the discipline was upheld on appeal. Id. at 41-46.

On or around October 31, 2000, Dean Carter called Charles Richards, the president and owner of Regional Publishing, which had the contract to print the Innovator. Docs. 36, 43 at ¶¶ 21, 41; Doc. 43 at Richards Affidavit and attached exhibits. Dean Carter had not read the current issue, and she did not know if the paper had an advisor at that time, so her intention was to ascertain that the paper was being reviewed by a staff person for compliance with the University’s standards for grammar, punctuation, and composition as well as with journalistic standards. Doc. 44 at Carter dep. at 9, 4-5. Dean Carter told Richards that under her authority, she was ordering him not to print any more issues of the paper without first calling her so that she or someone else from the administration could come to the plant, read the paper, and approve it for printing. Doc. 43 at Richards aff. When Richards expressed concerns about violating the First Amendment, she “made it very clear that that was not [her] intention” but she wanted to make certain that the paper would be reviewed prior to printing. Doc. 44 at Carter dep. at 6. Dean Carter told him he had to follow her instructions and reminded him that the University paid his company. Doc. 43 at Richards aff. When she instructed him to call her when the next issue arrived at the plant, he replied that he could not promise to do so. Doc. 43 at Richards aff. Richards later learned that the October 31, 2000 issue had already been printed and delivered. Doc. 44 at Richards aff.

Dean Carter raised her concern about the lack of an advisor with Mr. Dascenzo, who told her one had been appointed. Doc. 44 at Carter dep. at 16-17. She did not discuss these concerns with Plaintiffs Hosty or Porche. Id. at 18.

Sometime later, Dean Carter called Richards again with the same request. Doc. 42 at Richards aff. She asked him to call her when the paper arrived so that the University would know that it had been reviewed by an advisor before being printed. Doc. 44 at Carter dep. at 10-11. She did not have any concerns about the material in the October 31 issue, but having recently learned that Dr. de Laforcade was four hours away at another school, she was concerned that the students might submit the paper to the printer without having the advisor review it beforehand. Id. at 10, 14-15. She discussed those concerns with Plaintiffs Hosty and Porche, who objected to a faculty member reviewing the paper without their advisor’s approval. Id. at 18-19.

Plaintiff Hosty spoke on the telephone with Richards, who told her he “quote, did not want to be in a hissing contest between the paper and the administration because [it was] a business and not a charity [and] the university administration released the funds . . . .” Doc. 44 at Hosty dep. at 21, 42. In November 2000, Richards recorded his summary of his phone calls with Dean Carter and sent a copy to her. Doc. 43 at Richards Aff. at ex. 2. The letter does not state that he would not print the paper, and he never indicated to her that the University had cancelled the printing contract. Id.; Doc. 44 at Hosty dep. at 33-34. Richards received no communication thereafter from any student or administrator at the University. Doc. 43 at Richards aff.

Dr. Fagan asked Dr. Keys to investigate Dean Carter’s phone calls to the printer. Docs. 36, 43 at ¶ 53. Dr. Keys then spoke to Dean Carter, who reported that she had told the printer that an advisor needed to review the paper. Doc. 44 at Keys dep. at 9. He then reported back to Dr. Fagan that Dean Carter had called the printer to have the advisor look over the paper to avoid grammatical errors and to make suggestions but not to censor it. Docs. 36, 43 at ¶ 54. Dr. Keys later saw Richards’s letter, which he felt was inaccurate. Doc. 44 at Keys dep. at 15.-17. Subsequently, Dr. Fagan issued a memo to the University community, stating his concerns abou