Reed et al v. Neiheisel et al

Filing 20

MEMORANDUM OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CHERYL REED and MICHAEL WILLIAMS
Plaintiff,

Case No. 2:15-cv-57

v.

HON. R. ALLAN EDGAR

STEVEN NEIHEISEL et al
Defendant.
____________________________________/
MEMORANDUM OPINION
This case is before the Court on plaintiffs' request for a preliminary injunction
pursuant to Rule 65 of the Federal Rules of Civil Procedure. The plaintiffs are Michael
Williams (“Williams”), Managing Editor of the North Wind, a student newspaper at
Northern Michigan University (“NMU” or “The University”); and Cheryl Reed (“Reed”),
the faculty Journalistic Advisor to that publication. They bring their case pursuant to 42
U.S.C. § 1983 against four students who served on the newspaper's Board of Directors
(the “Board”), and Steven Neiheisel, who is employed by NMU as Vice President for
Enrollment Management and Student Services. Mr. Neiheisel also serves as a member
of the Board. Plaintiffs' claim is that these defendants have engaged in a pattern of
conduct designed to chill plaintiffs' First Amendment rights; and have retaliated against
them for the exercise of their First Amendment rights. Plaintiffs ask the Court to enter a
preliminary injunction “retaining Reed in the Journalistic Advisor Position”. This
memorandum is the Court's resolution of the preliminary injunction request. Plaintiffs
also ask the Court to enter an order enjoining defendants “from considering the

viewpoints expressed in The North Wind as a basis for decisions affecting the structure,
governance and functioning of the newspaper, including the selection and retention of
the Journalistic Advisor and editors”; and enjoining defendants “from using their
authority to retaliate in any way for plaintiffs' assertion of constitutionally protected
rights.” Plaintiffs do not seek to recover damages, but do request costs, attorney's fees
and expenses.

I.
The North Wind is governed by a Board of Directors. The purpose of the Board,
according to its by-laws, is to “publish and distribute a weekly newspaper which
provides an open forum for expression of ideas and opinions and contains news of
interest to students of Northern Michigan University.” At this juncture, it is not clear how
the Board came into existence. The Board is responsible for the general management
of the paper. It appoints the Editor and Business Manag er. The Editor is responsible to
the Board for “the editorial content and tone of the newspaper.” While the editor has
the authority “to establish editorial policy, he/she shall, nonetheless, be responsible f or
providing a balanced presentation of news and opinions, striving constantly for
completeness, timeliness, accuracy and objectivity.” The by-laws provide for a
“Journalistic Advisor” (Plaintiff Reed in this case) “to provide advice in matters
pertaining to journalistic style, quality, accuracy, content, objectivity, ethics, etc.” The
Journalistic Advisor does not determine the content of the newspaper. Students make
all content decisions.
The nine member Board consists of five students (three appointed by the Board
2

itself and two designated by student government subject to Board approval). Other
Board members are a member of the faculty selected by the Board; one person from
professional news media who is not employed by NMU, but is appointed by NMU's
president; NMU's Assistant Provost for Student Services and Enrollment or his or her
designee (Defendant Neiheisel in this case); and a the Journalistic Advisor. The
Journalistic Advisor is selected annually by the English faculty and department head
from faculty members, with their choice being subject to the approval of the Board as
well as the editorial staff. As the Provost's designee, Neiheisel also acts as Financial
Advisor.
Student Board members receive neither monetary compensation nor academic
credit for their service. Only the Board itself has the exclusive power to remove any
director. It only may do so by a two-thirds vote. However, the removal of the Associate
Provost for Student Services and Enrollment, (or his designee) as well as the news
media representative, requires the approval of NMU's President. The North Wind is
funded through the sale of advertising and a dedicated portion of a student activity fee.
Amendments to the by-laws can be made by a two-thirds vote of the Board, but must
be approved by student government and the NMU President.
In October and November of 2014, the North Wind published news stories
critical of a contract entered into between Starbucks and NMU. The author was
someone at the North Wind, who is not a participant in this litigation. The editorial staff
submitted several requests to NMU under Michigan's Freedom of Information Act
(FOIA) to obtain information. The University wanted $300 for expenses incurred in
connection with an FOIA request. The Board (including the defendant students) voted
3

to deny the request. The reasons for this vote are in dispute. However, the University
later waived the fee. In October 2014, the North W ind published a controversial story
about sexual assault on campus. It is evident that Plaintiff Williams was not associated
with the North Wind when these articles were published. In March 2015, the North
Wind published a piece critical of the travel expenses incurred by members of the
University Board of Trustees. This generated a University-wide e-mail from the chair of
the University's Board of Trustees critical of the North Wind article.
On April 3, 2015, the Board decided by a 5-4 vote to not approve Reed as the
Journalistic Advisor, for the next school year, even though she had been selected by
the English Department. The reasons for this action are hotly contested. The English
Department later selected someone else, which the Board approved, but not the
Editorial staff. So as of now, the Board is without a Journalistic Advisor for the 2015-16
school year. Reed remains as a member of NMU's faculty. Williams applied to the
Board for the Editor position, but after his interview, he was not selected. The reasons
for this non-selection are very much in dispute. He remains as Managing Editor.

II
When considering a motion for a preliminary injunction, this Court must consider
four factors: (1) the plaintiffs' likelihood of success on the merits; (2) whether the
plaintiffs may suffer irreparable harm absent the injunction; (3) whether granting the
injunction will cause substantial harm to others; and (4) the impact of an injunction upon
the public interest. Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson
Cnty., 274 F.3d 377, 400 (6th Cir. 2001).
4

A.

Likelihood of Winning on the Merits
1. State Action

Because plaintiffs are suing defendants under 42 U.S.C. § 1983 for violation of
their First Amendment rights, they must demonstrate that (1) there was a constitutional
violation and (2) the violation was committed by a state actor. West v. Atkins, 487 U.S.
42, 48 (1988); Mezibov v Allen, 411 F.3d 712, 716 (6th Cir 2005).
The Court turns first to the second of these requirements - whether the
defendants were state actors. The defendants in this case are four student Board
members who voted not to approve Reed as Journalistic Advisor. The fifth vote was
supplied by Mr. Neiheisel. As an employee of NMU, a public state university, he is
unquestionably a state actor. However, whether the four student defendants are state
actors presents an entirely different question. Private individuals may only be treated
as state actors if their actions are fairly attributed to the state. Lugar v. Edmondson Oil,
Co., 457 U.S. 922, 937 (1982); Street v Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.
1996). Although private actions may deprive an individual of a Constitutional right, they
are subject to liability under § 1983 only when done under color of state law because
rights secured by the Constitution are protected only against infringement by
governments. Flagg Bros., Inc. v Brooks, 436 U.S. 149, 156 (1978). The student
defendants are indeed private individuals.
Courts have devised various “tests” to determine whether particular conduct is
state action. The first of these tests is the “Public Function Test.” To show a person
has acted under the color of state law pursuant to the Public Function Test, a plaintiff
must show that the private entity exercised powers that are traditionally and exclusively
5

reserved to the state, such as holding elections or eminent domain. Flagg Bros., Inc.,
436 U.S. at 157; Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). T he Public
Function Test is interpreted narrowly and is rarely applied. Carl v Muskegon Cnty., 763
F.3d 592, 595 (6th Cir. 2014); Chapman v Higbee Co., 319 F.3d 825, 833 (6th Cir.
2003). Only such functions like holding elections, operating a company-owned town,
and eminent domain issues have been considered categories of state action under the
test. Chapman 319 F.3d at 833-34. Under the Public Function T est, a historical
analysis is used to determine whether the private action complained of is an action
traditionally exclusively reserved to the state, and the plaintiffs bear the burden of
advancing historical and factual allegations to support this assertion. Marie v American
Red Cross, 771 F.3d at 344, 362 (6th Cir. 2014); Wittstock v Mark A. Van Sile, Inc., 330
F.3d 899, 902 (6th Cir. 2003).
Contrary to the plaintiffs' assertion, the non-approval of Reed as Journalistic
Advisor was not the exercise of a power exclusively reserved to the state. The same
can be said about Williams' non-selection as Editor. All sorts of entities, public and
private, make personnel decisions. Moreover, it certainly cannot be said that publishing
a weekly newspaper is a power reserved exclusively to state government. It is
noteworthy that the defendants' acts had no impact on Reed's employment by the
University. Defendant students are not state actors by virtue of the “public function”
test.
A second state action test is the “Symbiotic Relationship or Nexus Test.” Here,
there would only be state action if there is shown to be a sufficiently close nexus

6

between the state (NMU) and the challenged action of the student defendants. Wilcher
v City of Akron, 458 F.3d at 516, 520 (6th Cir. 2007), Wolotsky, 960 F.2d at 1335. This
test is applied in situations where there is an entity that is to some extent regulated by
the state, like a cable operator, (Wilcher, supra). Community mental health centers
(Wolotsky, supra); “Memphis in May” festival (Lansing v City of Memphis, 202 F.3d 821
(6th 2000)). In this case, it does not appear that NMU reg ulates these students, or the
Board on which they serve. The Board is essentially an independent entity controlled
by students who are not selected or removable by NMU. Even if these defendants
were extensively regulated, this would not justify a state action finding. The Board (not
the students) does receive a portion of a student activity fee. However, public funding
is not enough to satisfy this test. Lansing, 202 F.3d at 830. Finally, the minority
presence of Mr. Neiheisel on the Board does not convert the Board (nor the students)
into state actors. Id. at 831. Whatever connections exist between NMU and the Board
fall far short of making either the Board or the defendant students state actors under
this test. See Husain v. Springer, 494 F.3d 108, 135 (2d Cir. 2007)
The “entwinement test” is a third state action test. In order to demonstrate state
action under the entwinement test, plaintiffs must show that the defendants were
entwined with governmental policies or that the government is entwined in the private
entity's management or control. Brentwood Acad. v Tenn Secondary Sch. Ath. Ass'n,
531 U.S. 288, 296 (2001); Marie, 771 F.3d at 363; Hughes v Region VII Area Agency
on Aging, 642 F.3d 169.178 (6th Cir. 2008). “The crucial inquiry under the
entwinement test is whether the 'nominally private character' of the private entity is

7

overborne by the pervasive entwinement of public institutions and public officials in its
composition and workings [such that] there is no substantial reason to claim unfairness
in applying constitutional standards to it.” Marie, 771 F.3d at 364.
There are some small tentacles connecting the Board and NMU, as related
above. However, clearly the Board is not entwined with NMU. The by-laws make this
very clear. The seminal case giving rise to the “entwinement” test is Brentwood Acad.,
531 U.S. 288 (2001), where state action was found on the part of a state athletic
association which was comprised mostly of state school officials. Mr. Neiheisel's
presence as one member of a nine-member board does not amount to entwinement.
Finally, the fourth state action test is the “State Compulsion” Test. Under the
State Compulsion Test, the actor(s) must “exercise such coercive power or provide
such significant encouragement, either overt or covert, that in law the choice of the
private actor is deemed to be that of the state.” Wolotsky, 960 F.2d at 1335 (citing
Blum v Yaretsky, 457 U.S. 991, 1004 (1982)). “More than mere approval or
acquiescence of the private party is necessary to hold the state responsible . . .” Id. at
1335 (citing Blum, 457 U.S. at 1004). While funding and personnel choices have been
deemed ways in which coercion may take place, these are not the only factors to
consider. See id. at 1336. There is a factual dispute about whether, and if so, to what
extent, defendant Neiheisel prevailed upon the four student defendants to disapprove
Reed as Journalistic Advisor. However, plaintiffs have not asserted that Neiheisel in
any way compelled the defendant students to vote to oust Reed. The most plaintiffs
have said is that Neiheisel “influenced” the students. Even if the students were so

8

influenced by a state actor, this would not be sufficient to establish state action. See
e.g., Lansing, 202 F.3d at 829 (noting that offering to assist or a request to consider did
not amount to “significant encouragement” under the state compulsion test); Wolotsky,
960 F.2d at 1335 (noting that more than mere approval is needed to constitute state
compulsion). If he did somehow put pressure on these students to remove Reed, he
could conceivably have been engaged in actionable state action. It's difficult to
imagine, however, how much pressure could be imposed on non-compensated student
Board members who could not even be removed from the Board except by a super
majority vote.
In summary, the Court cannot say that it is more likely than not that plaintiffs will
succeed in establishing that the defendants (with the exception of Neiheisel) were state
actors.
2. First Amendment
Even if plaintiffs have shown that defendants engaged in state action, the Court
is unable to conclude that they have demonstrated that a First Amendment
Constitutional violation occurred. The heart of their claim is that defendants retaliated
against Reed and Williams by “removing Reed from the position of Journalistic Advisor
as a part of a pattern of conduct to suppress the expression of content and viewpoints
critical of the University.” To succeed on this retaliation claim, plaintiffs must show
(1) that plaintiff was engaged in a constitutionally protected activity;
(2) that the defendants' adverse action caused the plaintiff to suffer
an injury that would likely chill a person of ordinary firmness from
continuing to engage in that activity; and (3) that the adverse action
was motivated at least in part as a response to the exercise of the
plaintiffs' constitutional rights.
9

Leary v Daeschner, 228 F.3d 729, 737 (6th Cir. 2000) (citing Bloch v Ribar, 156 F.3d
673, 678 (6th Cir. 1998). If a plaintiff makes this showing, the burden shifts to
defendants to show that they would have taken the same action even in the absence of
the First Amendment protected conduct. Id.
(1) First Amendment Protected Activity. The allegation here is that Reed was not
approved as Journalistic Advisor to punish her and her students, including Williams, for
the content of the North Wind and to deter Williams and his editorial staff from
engaging in investigative journalism unflattering to the University in the future.” The
problem with this assertion is that plaintiffs have failed to demonstrate that they
engaged in any protected conduct. It appears that W illiams was not even affiliated with
the paper in the Fall of 2014 when the Starbucks and sexual assault articles were
published. When asked during oral argument what articles Williams had written, the
Court learned that he did not have so much as a byline for anything published critical of
the University. It is not at all clear that Williams, as a late arriving Managing Editor, ever
engaged in protected speech.
As to Reed, there is substantial question whether she ever engaged in protected
speech. There is no allegation that she ever said or wrote anything in the North Wind
that was protected speech. In fact, in her role as advisor, she has no control over the
paper's content. She only advises the paper's editors; and at this point, there is nothing
in the record to reveal what advice, if any, she may have given them. Nor is there any
indication that the editors took whatever advice was offered. Plaintiffs rely on Coppola
v. Larson, 2006 WL 2129471 (2006), a U.S. District Court case, unreported in F.Supp.,
from New Jersey which does summarily conclude that removal of an advisor to a
10

student newspaper can be a “particularized actual injury” to the paper's editors. Id. at
*8 The Court finds this case unpersuasive here, where other than Williams' bare
assertion, there is no indication that W illiams' First Amendment rights will suffer from
Reed's absence. Moreover, there is no indication that another faculty member would
not be able to adequately fulfill the advisor function. In fact, Williams says in an
affidavit that “[he] intend[s] to remain active as a student journalist during the 20152016 school term and to submit articles for publication , , , as I have in the past.” It
should also be noted that the advisor in Coppola was terminated after 35 years of
service; received a salary for the advisor job; and was terminated directly by the
institution's administration, not a student-led board.
The only other “student advisor” case cited by plaintiffs is Moore v. Watson, 838
F. Supp. 2d 735, (N.D. Ill. 2012). The court in Moore relied heavily on an Illinois statute
(The College Campus Act, 110 ILCS 13/1) in concluding under the facts of that case
that student editors and a faculty advisor engaged in protected activity in connection
with a school paper. Plaintiffs have pointed to no similar Michigan statute. In Moore,
the court found that the university itself engaged in all sorts of egregious speech
inhibiting conduct directed at the Student Advisor (including direct termination) as well
as the newspaper. Noteworthy again, is that the advisor's termination was done by the
University's President, not a student-led Board. Moore is not analogous to this case.
Finally, Plaintiffs' cite Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056
(6th Cir. 2001) for the proposition that Reed's First Amendment rights were infringed
even though she may have never said anything. Here an elementary school English

11

teacher was terminated after she selected a speaker to come to her class to talk about
hemp, from which marijuana can be derived. She was terminated by the school
superintendent. The Sixth Circuit upheld her First Amendment retaliation claim even
though she was not the speaker. However, it was quite clear that the hemp message
was something that the teacher wanted to convey, albeit through a third party. Here it
is not at all clear that Reed intended to convey any message of public concern
regarding NMU. In fact, it was not her job to do so. She had no control ov er editorial
content of the North Wind.
To the extent that Reed may be claiming that she engaged in protected activity in
the course of her job duties by sending emails and complaining to the University about
FOIA requests, this would not be protected activity. “When public employees make
statements pursuant to their official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not insulate their
communication from employer discipline”. Garcetti v Ceballos, 547 U.S. 410, 421,
(2006).
In short, it is by no means likely that plaintiffs will be able to show that Reed was
engaged in protected activity.1

1

Plaintiffs do not seek damages. However, it is worth noting that assuming for the moment that
Reed was terminated by state actors for engaging in protected activity, they would likely be entitled to
qualified immunity for any damages (though not injunctive relief). Qualified immunity shields a state actor
from suit unless that actor violated clearly established federal law. Lane v Franks, 134 S.Ct. 2369, 2381
(2014). The right must be “sufficiently clear” so that every “reasonable official would have understood that
what he is doing violates that right.” Ashcroft v Al-Kidd, 131 S. Ct. 2074, 2083 (2011) Reed's claim that
she was engaged in protected activity when she advised the students is not clearly established by federal
law. Nor is Williams' claim that his rights were violated when Reed was terminated. The right must be
clearly established, and two decisions from District Courts outside this jurisdiction are not enough to
satisfy the first prong of qualified immunity. Wilson v Layne, 526 U.S. 603, 617 (1999).

12

Another problem for Reed is that she likely lacks standing to bring a section 1983
claim on behalf of Williams or the other student editors by alleging that their speech
was chilled when she was not renewed as student advisor. Section 1983 creates a
cause of action for deprivation of civil rights “to the party injured” by the alleged
constitutional violation. Barber v Overton, 496 F.3d 449, 457 (6th Cir. 2007); Claybrook
v Birchwell, 199 F.3d 350, 357 (6th Cir. 2000); Jaco v Bloechle, 739 F.2d 239, 241 (6th
Cir. 1984). Section 1983 is “entirely personal to the direct victim of the alleged
constitutional tort” and only applicable to the purported victim or that victim’s estate.
Barber, 496 F.3d at 457; Claybrook, 199 F.3d at 357. Reed does not claim to be the
direct victim of the alleged chilled speech and she certainly does not represent any
victim’s estate.
One wrinkle in the standing issue involves third-party retaliation claims in Title VII
actions. Courts have found that a third-party employee can maintain retaliation claim
against an employer if the third-party employee was fired in order to retaliate against
that third-party employee’s close family member for engaging in a protected activity.
Thompson v North American Stainless, LP, 562 U.S. 170, 174 (2011); Benison v Ross,
765 F.3d 649, 657–58 (6th Cir. 2014). In Thompson, the Court found that Thompson
could maintain his retaliation claim when he was fired because his fiancée engaged in a
protected activity, filing a gender discrimination charge with the EEOC. 562 U.S. at
172. The Court explained that the broad antiretaliation provision of Title VII, that
prohibits any employer action that “well might have dissuaded a reasonable worker
from making or supporting a [discrimination] charge,” includes reprisals for close family

13

members. Id. at 174 (quoting Burlington N. & S.F.R. Co. v White, 548 U.S. 53, 68
(2006)). Although the Supreme Court has not identified a “fixed class of relationships
for which third-party reprisals are unlawful,” it recognizes that firing a close family
member will almost always meet this standard, whereas firing a mere acquaintance “will
almost never do so.” Id. at 175.
Similarly, in Benison, an employee brought a Title VII retaliation claim, alleging
that she was fired by her employer (a university) because her spouse (a student) was
involved in passing a no-confidence resolution against the universities President and
Provost. 765 F.3d at 658. Because the university did not dispute the spouse’s
standing, the Sixth Circuit assumed standing and addressed the merits of the retaliation
claim. Id.
Here, Title VII, and its broad anti-retaliation provision, is not present. Neither the
Supreme Court nor the Sixth Circuit have extended third-party retaliation claims beyond
Title VII. This Court finds no analogous statutory authority with which to extend the
third-party reprisal principle to this case. Therefore, ordinary section 1983 standing
principles apply and Reed lacks standing to allege that speech of Williams and the
student editors is chilled. This also means that Coppola and Moore, supra are contrary
to the third party standing rule in the Sixth Circuit
Putting aside the second element of a First Amendment retaliation claim (that
Reed suffered an injury that would likely chill First Amendment expression), plaintiffs
are required to prove that the defendants were motivated, at least in part, by Reed's
exercise of her constitutional rights. Here we have a substantial dispute on the facts.
Plaintiffs claim that Reed's appointment was not approved because of her
14

advocacy for investigative journalism and journalist's rights. Plaintiffs contend that
defendants removed her to punish the North W ind for unflattering news coverage on
the University. On the other hand, defendants say in their affidavits that their vote was
motivated by Reed being “abusive, needlessly confrontational and unbearably
egotistical in her interactions” with Board members. They also say that she was acting
beyond her role as Advisor and impermissibly took on duties allocated to students. T his
is a factual dispute that the court is not now in a position to resolve, having not heard
any testimony. The Court therefore cannot conclude that plaintiffs would likely (or not
likely) be able to carry their burden of proof on this issue. For this reason, and for the
other reasons discussed above, it cannot be said that plaintiffs are likely to prevail on
the merits.
III
The remaining considerations for the Court's decision on injunctive relief do not
outweigh the above considerations. If plaintiffs' First Amendment rights were indeed
violated, they would have suffered irreparable harm, upon denial of the injunction. Elrod
v. Burns, 427 U.S 347, 373 (1976). Moreover, it cannot be said that the requested
injunction would result in great harm to Mr. Neiheisel, who is likely to remain the only
defendant in this case if the case is not dismissed in its entirety. However, the public
interest would not be served if the Court were to issue an injunction that would not be
legally sustainable.
IV
Finally, injunctive relief that the Court could grant may well be ineffectual.
Plaintiffs have sued four students and an NMU official. These are five members of the
15

nine member Board who voted not to approve Reed. Plaintiffs ask for a preliminary
injunction requiring them to retain Reed. Yet as set forth above, these students are not
state actors, and cannot be enjoined. In addition, one of the students is, according to
his affidavit, no longer a student, and presumably no longer a member of the Board.
Hence, even if the other students remain on the Board, they no longer command a
majority. Further, Reed's reinstatement is still subject to the re-submission of her name
by the English Department (not a party to this case) and approval by the editorial staff
(not parties to this case). The only defendant in this case who is a state actor is Mr.
Neiheisel. He is in no position, as one member of the nine member Board, to reinstate
Reed.
V
At this point it seems that this case is mostly sound and fury.

It really comes

down to who is the North Wind? The North Wind is the Board, along with the Editor it
appoints, and the Journalistic Advisor it approves. The Editor is responsible to the
Board for editorial content. The Journalistic Advisor is also responsible to the Board in
that he/she is subject to annual approval. The Board, and each of its members, have
First Amendment rights as well as the plaintiffs. If indeed the defendants were
motivated in the action they took by the editorial content of the North Wind, they were
only doing their job as required by the by-laws. This case seems to have been
spawned by what amounts to an editorial dispute between different people involved with
the newspaper. The dispute may well have been avoided if those involved, including
Reed, had talked to each other during the school year, and tried to reach a consensus.
Instead, we have the odd spectacle of a professor suing her students. Much of the
16

complaint is directed at events which did not in any way involve the defendants.
Plaintiffs seem to want this case framed as censorship of a student newspaper by a
university. That is simply not this case.
An order will enter denying the request for a preliminary injunction.

Dated:7/13/2015

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

17