Originally published by Kansas Reflector on March 6, 2021
LAWRENCE — Haskell Indian Nations University is facing a First Amendment lawsuit from its student newspaper after the school allegedly cut the paper’s funding and sought to prevent the newspaper’s editor from conducting newsgathering after critical coverage of the university.
The lawsuit stems from a directive that was issued by the school’s president in October 2020, giving student editor Jared Nally a list of rules outlining what he could and could not do while newsgathering, after the publication of articles that were critical of the school and its administration.
“You may NOT: Attack any student, faculty or staff member with letters or in public, or any public forum, thus bringing unjustified liability to this campus or anyone on this campus,” the directive said, in part.
The directive also said Nally was not allowed to make demands of governmental agencies while representing the Indian Leader or record anyone at Haskell for interviews unless they grant permission, despite Kansas’ one-party recording consent laws.
“Haskell is a learning institution,” Nally said. “It’s a place where we’re supposed to be able, as a student newspaper, we’re supposed to learn how to have a voice. And this is not the way to learn the value of free speech, by having to fight for it through a lawsuit.”
The student paper is also seeking the restoration of about $10,000 in annual student group funds that were not allocated for the paper after the coverage in question.
The Foundation for Individual Rights in Education, known as FIRE, filed the suit on Nally’s behalf against the school, which is a public tribal university owned by the federal government and funded through the Bureau of Indian Education, a subset of the U.S. Department of the Interior. The lawsuit was filed in conjunction with Kansas attorney Doug Bonney.
Klarissa Jensen, a Communications official for the Bureau of Indian Education, said the department would not comment on active litigation.
Katlyn Patton, a staff attorney at FIRE, said in talking to Nally, the organization became extremely alarmed by the directive and the school’s disregard for the student’s right to ask questions and conduct newsgathering. FIRE had previously been in contact with Nally regarding prior reporting.
“This was such an egregious example of violating a student journalist’s First Amendment rights and Haskell and president Graham need to be held to account for that,” she said.
Patton said that beyond the directive, the funding portion is key, given that while schools are not required to fund student newspapers, revoking funding in certain situations can be considered a First Amendment violation.
She said FIRE and the newspaper are hoping the court will determine the directive was in violation of the First Amendment and the funding cut will be restored. She said they are also seeking damages for Nally, after being unable to report during the directive.
The lawsuit said the school’s administrators ignored Nally’s requests that the administration recognize the student newspaper as an official student organization. Without this recognition, the paper cannot receive funding. Haskell withheld more than $10,000 in funds from the paper without any notice or explanation, the lawsuit said.
The lawsuit also takes issue with the university’s “CIRCLE” values, which, it says, limits the freedom of speech for all Haskell students, not just the newspaper.
Ron Keefover, former president of the Kansas Sunshine Coalition for Open Government, noted that prior restraint, or a governmental body preventing a news organization from publishing materials, was at the heart of the case.
“The issue of prior restraint raised in the lawsuit has been a hot topic under the First Amendment forever,” Keefover said. “The facts of this matter as related in the lawsuit clearly demonstrate an insensitivity of, or in fact a violation of, that fundamental principle in our constitution.”
Keefover and the lawsuit noted the school had previously resolved a similar case in 1989, and agreed not to impose future prior restraints on its student newspaper.
“At the end of the day, Haskell’s university administrator is doing whatever he can to avoid transparency in his administration and the use of public federal funding,” Keefover said. “I thank the student editor at Haskell and all other student journalists in their pursuit of transparency. Put simply, people fear and mistrust the unknown. Sunshine is the strongest antiseptic: Its rays penetrate areas previously unknown.”
Max Kautsch, the hotline attorney for the Kansas Press Association, said the First Amendment applies to student journalists as it would to any other journalist.
“The university made a funding decision that was adverse to the student paper after the paper reported factually about the administration in a way it did not appreciate,” Kautsch said. “The First Amendment protects journalists reporting on matters of public concern free from interference by the government.”
Nally said that he never anticipated becoming this invested in student journalism, and hadn’t been examining it as a career path before the lawsuit. He had never had his right to free speech challenged before, and didn’t realize how valuable it was until now, he said.
Additionally, he said, the student newspaper will be turning 124 years old shortly, and it’s the longest running Native American student newspaper in the country.
“The whole intent of this thing is to make sure that the student press is able to continue on with its legacy,” he said. “That history is something we want to continue and in order to do that we need to establish these precedents.”
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