Olson v. State Board for Community Colleges & Occupational Education

652 P.2d 1087, 1982 Colo. App. LEXIS 857, 7 Educ. L. Rep. 419
CourtColorado Court of Appeals
DecidedMay 6, 1982
DocketNo. 81CA0372
StatusPublished
Cited by3 cases

This text of 652 P.2d 1087 (Olson v. State Board for Community Colleges & Occupational Education) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olson v. State Board for Community Colleges & Occupational Education, 652 P.2d 1087, 1982 Colo. App. LEXIS 857, 7 Educ. L. Rep. 419 (Colo. Ct. App. 1982).

Opinions

TURSI, Judge.

The issue presented on this appeal is whether the faculty advisor of a student-run college newspaper has standing to raise First Amendment challenges to the termination of funding for the newspaper. The trial court, on a motion for summary judgment, ruled there was no standing. We reverse.

On June 1, 1979, the student senate of Pikes Peak Community College in Colorado Springs voted to remove the entire appropriation of $12,400 for the Pikes Peak News from the proposed 1979-1980 student activities budget. The Pikes Peak News was the student newspaper and had been funded by student activity fees since its inception.

The student activities budget is funded by mandatory student fees, and is disbursed by the student senate with the permission and approval of defendants State Board, the College Council, and the college administrators.

The News has not been published since the date of the funding cutoff. However, the students have distributed a magazine-type publication entitled the Pikes Peak Fuse, Supplement to the Pikes Peak News. The Fuse has received no funds from the student activity fees. It is funded entirely from advertising revenue and some funds from the instructional budget of the college.

In August 1979, a suit predicated upon 42 U.S.C. § 1983 was filed by four individuals on behalf of themselves and others similarly situated. The complaint alleged that “funding for the Pikes Peak News was cut off because of defendants’ disapproval of its content and desire to suppress or control its editorial policies.” All of the defendants were identified in their official and individual capacities and were charged with so acting under color of state law with the purpose of depriving the plaintiffs of their constitutionally protected rights and privileges.

The named plaintiffs and their capacities were as follows: Marti Dyer-Allison, 1978-1979 news editor of the News; Vicki Evans, 1979-1980 editor of the News; Marie Moon, general manager of the News; and Judith Olson, faculty advisor to the News and the journalism instructor at the college. The class action aspects of the complaint were neither alleged nor pursued. Plaintiffs prayed for an injunction enjoining defendants from ceasing to fund the News adequately because of disapproval of its content and editorial policy. They also sought attorneys’ fees pursuant to 42 U.S.C. § 1988.

The trial court denied plaintiffs’ motion for a preliminary injunction and, in March 1981, granted defendants’ motion for summary judgment concluding that none of the named plaintiffs had standing to pursue the claims for relief.

The court’s conclusion that Dyer-Allison and Moon lacked standing was based on its finding that they had graduated prior to the school year for which the funding was cut. Evans, the court concluded, suffered no injury in fact to her constitutionally protected interests of freedom of speech, press, and association because she exercised her First Amendment rights through the “substitute forum” of the Fuse.

As to Olson, the court concluded that her First Amendment rights were not injured by the funding cut off because 1) the News was a student newspaper over which she could not exercise editorial control, 2) she had no constitutional right to use a newspaper as a teaching tool, and 3) she could not assert the rights of third-parties, the students in this ease. Only Olson has appealed the court’s ruling.

I

Olson’s Standing To Assert Her Own Rights

College officials cannot censor a student newspaper which serves as a forum of student expression in the absence of an overriding state interest. Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973).

[1090]*1090“It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment. This rule is but a simple extension of the precept that freedom of expression may not be infringed by denying a privilege.” Joyner v. Whiting, supra (citations omitted).

There is no doubt that proper student plaintiffs could bring an action challenging the discontinuation of funding of the newspaper for constitutionally impermissible purposes. However, the question before us is whether the newspaper’s faculty advisor has standing to bring such an action.

In Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977) the court stated: “When standing is in issue, the broad question is whether the plaintiff has stated a claim for relief which should be entertained in the context of a trial on the merits.” The basic test of standing set forth in Wim-berly v. Ettenberg, supra, is “whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions.” Thus, the allegation of the injury in fact necessary for standing is not to be measured by the probability of Olson’s prevailing on the merits at trial, but rather by whether she has alleged an injury to a legally protected interest as contemplated by the First Amendment.

Olson asserts that she has suffered injury in fact to her right of academic freedom because she is unable to teach First Amendment values through the practical experience of their exercise in the publication of a newspaper free from censorship. It is undisputed that Olson used the paper as a co-eurricular activity and as an adjunct tool in her courses on newspaper journalism. She further claims that as a participant in the publication of a newspaper, she enjoys First Amendment protection.

Defendants contend that Olson has suffered no injury because she has not been fired, demoted, or suffered any pecuniary loss, and that her academic freedom has not suffered because she retains her position as a journalism instructor and advisor to the Fuse, the alternative to the News. We reject both of defendants’ arguments.

A. Injury In Fact

Contrary to defendants’ contention, injury in fact may be found in the absence of direct economic injury. Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979). This is especially true where, as here, “[t]he rights involved extend beyond self-interest of individual litigants and are of ‘great public concern’.” Colorado State Civil Service Employees Ass’n v. Love, 167 Colo. 436, 448 P.2d 624 (1968); Howard v. City of Boulder, 132 Colo. 401, 290 P.2d 237 (1955).

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Related

State Board for Community Colleges & Occupational Education v. Olson
687 P.2d 429 (Supreme Court of Colorado, 1984)
Olson v. STATE BD. FOR COM. COLLEGES & OCCUP. EDUC.
652 P.2d 1087 (Colorado Court of Appeals, 1982)

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Bluebook (online)
652 P.2d 1087, 1982 Colo. App. LEXIS 857, 7 Educ. L. Rep. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-v-state-board-for-community-colleges-occupational-education-coloctapp-1982.