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Another Voice: Students’ legal ‘victory’ is a blow to free speech

By Frank D. LoMonte

On paper, Ron McGuire and his student clients won a significant First Amendment legal victory protecting college journalists at City University of New York, and everywhere else in America, against retaliation for what they write.

But the cost of that victory has been devastating to McGuire, who is 67 and in frail health, because of the cruel indifference of federal judges bent on closing the courthouse door to future student plaintiffs.

Unless a federal appeals court reconsiders its errant 2014 decision – as an extraordinary coalition of civil rights lawyers and decades of McGuire clients are asking – the unjust result of a landmark free-speech victory will be that the “losing” side absorbs just 5 percent of the legal costs and the “winning” side must eat the other 95 percent.

This is a case of enormous importance not just to McGuire and his clients, but to any person whose rights are violated by a government agency with unlimited taxpayer-funded legal defense. The Second Circuit U.S. Court of Appeals has ruled in a way that will make it far more challenging for wronged citizens to get their constitutional claims into court.

In briefs filed last month with the Manhattan-based Second Circuit, McGuire and his supporters are asking the circuit judges to overrule a three-judge panel that slashed McGuire’s initial request of $754,000 in attorney fees to just $38,892, a cut of nearly 95 percent.

In 1997, the College of Staten Island (part of the CUNY system), retaliated against editors of the student newspaper by canceling a campus election to punish them for a special endorsement edition. After years of delay – resulting in an extraordinary ruling penalizing CUNY’s lawyers for foot-dragging – the Second Circuit decided that the university violated the students’ rights, leaving only the issue of McGuire’s legal fees.

In 2013, the U.S. District Court arrived at a defensible compromise of $216,500 that recognized the significant time McGuire was forced to invest. But the Second Circuit threw the case back in a 2014 ruling that harrumphed at the significance of the students’ victory, forcing a reluctant Judge Nina Gershon to once again reduce the award – to $38,982 for McGuire’s time plus $17,186 in other costs.

Unless this injustice is corrected, the case will send an unmistakable message to schools and colleges: Violating students’ rights carries no meaningful penalty, and the longer you can prolong a case, the greater the chances of bankrupting your opponent into surrender. The stakes in McGuire’s case could scarcely be higher – for him and for the students who need lawyers like him.

Attorney Frank D. LoMonte is executive director of the Student Press Law Center, a nonprofit legal-services organization supporting the rights of student journalists nationwide.