OSU Student Alliance v. Ray

Under 42 U.S.C. §1983, a plaintiff adequately alleges First and Fourteenth Amendment violations by claiming that a supervisor knowingly acquiesced to violations of students' free speech rights by an immediate subordinate.

OSU Student Alliance filed suit, under 42 U.S.C. §1983, against the OSU Facilities Department and officials for violation of students' First and Fourteenth Amendment rights. Bins for a conservative newspaper, The Liberty, were confiscated from campus locations and put in storage pursuant to an unwritten and previously unenforced policy. No other newspapers located on campus were confiscated. The district court dismissed the charges and denied leave to amend the complaint, and plaintiff appealed. The Ninth Circuit held that the complaint “adequately pleads a First Amendment violation on two grounds by applying a standardless policy to draw a distinction between the Liberty and the Barometer and by engaging in viewpoint discrimination.” The Court also held that the complaint adequately alleged an Equal Protection violation by the Facilities Department director, by claiming that he directly discriminated against plaintiffs and applied the unwritten policy after the confiscations. Additionally, since notice would only have imposed minimal burdens, plaintiffs made an adequate due process claim. The Court also held, "specific intent requirements into certain other constitutional tort claims do not apply in the free speech context — . . . allegations of facts that demonstrate an immediate supervisor knew about the subordinate violating another’s federal constitutional right to free speech, and acquiescence in that violation, suffice to state free speech violations under the First and Fourteenth Amendments.” Finally, the court held that the claims against Ray and McCambridge for Due Process violations failed because they did not know about or take part in the initial news-bin confiscations. REVERSED and REMANDED.