American Indian university pays student newspaper $40,000 to drop First Amendment lawsuit

More than 30 years ago, a federally run university for American Indian students resolved the student newspaper's First Amendment lawsuit by promising not to dictate its coverage or suspend publication through bad-faith administrative hurdles.

This week, Haskell Indian Nations University (HINU) agreed to another settlement with The Indian Leader, paying the newspaper and former editor-in-chief Jared Nally $40,000 in attorney's fees, for allegedly ignoring the first settlement.

The legal battle might not end there, because the Supreme Court agreed to hear a case seeking to hold a U.S. border patrol agent personally liable for First Amendment retaliation. 

Its ruling may enable Nally to obtain monetary damages from ex-HINU President Ronald Graham, who was fired two months after the student sued the university and the Bureau of Indian Education, which oversees NIHU. The Board of Regents said Graham ignored shared governance and trampled student and faculty speech.

The Kansas university's status exposes a gap in protection for students at federal versus state educational institutions. 

A federal judge threw out Nally's First Amendment retaliation claim against Graham on the grounds that such claims are "rarely, if ever" available against federal officials, according to the student's lawyers at the Foundation for Individual Rights in Education.

The civil liberties group filed a friend-of-the-court brief with SCOTUS in the border agent case, asking it to treat federal the same as state officials. 

"Jared's predicament is particularly infuriating because damages would be available to virtually all other public college and university students who experience this kind of First Amendment retaliation through run-of-the-mill suits under federal civil rights statutes," FIRE said.

Right after Nally sued the university last year, the high court gave a boost to plaintiffs who have difficulty demonstrating measurable economic harm from constitutional violations. It ruled a censored student evangelist could sue a Georgia public college for "nominal damages."

Nally can demonstrate economic harm from months of retaliation even after FIRE warned the university, lawyer Katlyn Patton told Just the News. Under the Georgia precedent, if it can't convince the judge to award compensatory or punitive damages, Nally would still have legal standing to seek nominal damages, she said.

HINU referred Just the News to the Bureau of Indian Education (BIE) for comment. The agency did not immediately respond.

'Unwanted attention'

HINU has a reputation for cracking down on student speech, whether crude or substantive. It allegedly kicked a student out of campus housing without a hearing early in the COVID-19 pandemic for calling a campus employee ticketing his car an "asshole."

The conflict with The Indian Leader escalated in 2020. HINU unilaterally replaced its adviser while allegedly withholding its bank account and ignoring its renewal application.

Nally ran into problems for asking public officials for interviews and surreptitiously recording an interview, which is legal in Kansas. He was also investigating the data HINU reported to the U.S. Census Bureau about the "racial identities" of students.

FIRE, the Student Press Law Center and Native American Journalists Association got involved when President Graham issued Nally a "directive" against engaging in common newsgathering practices. 

Graham said Nally brought the university "and me unwarranted attention." When he rescinded the directive, Graham only informed BIE, not the student or the press freedom groups.

Without accepting liability in the new consent decree, approved Tuesday, the university agreed not to enforce the "CIRCLE values" as a speech code against The Indian Leader, impose another such "directive," or retaliate against student journalists.

HINU agreed to approve the newspaper's operations plan for this academic year, "affirmatively" give it monthly account statements, and disclose how many students are enrolled each term and the annual total of student activity fees.

Other litigation around alleged viewpoint discrimination and censorship of students isn't getting as far before schools relent.

Indiana's Noblesville School District agreed to recognize a pro-life club a month after its student leader sued for violations of speech, association, due process and equal protection rights, as well as infringing a federal law that ties funding to nondiscrimination against student groups.

The school revoked recognition last fall after objecting to the student's club flyer, which read "Defund Planned Parenthood," and claiming the club wasn't student-run because the student's mother joined a meeting about the flyer with a school official, the suit claims.

The parties dispute why the club was recognized, however. Students for Life of America, which is assisting the club, said it reached a "partial agreement" with the district to recognize the club while the lawsuit proceeds.

District spokesperson Marnie Cooke told Just the News there was no "partial settlement" and the club complied with "school policy" following its original failure to "follow school protocols." She didn't answer a followup request to provide those protocols.

The club's attorney Zac Kester called that explanation "demonstrably false." Noblesville Students for Life followed even the "unwritten and uncommunicated protocols" that caused the "unconstitutional conditions," he wrote in an email.

Its recognition was revoked hours after the club demanded the "student flyer criteria in writing," and months later the school adopted " new, updated and different policies" for all student groups, which the club followed, Kester said.

The Stanford College Republicans, by contrast, went to their university's Constitutional Council when the student government denied a funding request for former Vice President Mike Pence to speak on campus.

The council ruled last month that the abstentions on the funding vote, more than half of the total, could not be counted as "no" votes, Campus Reform reported. Pence is scheduled to speak on campus Feb. 17.