Lawsuit settled between former Indian Leader editor-in-chief and Haskell Indian Nations University – The University Daily Kansan

A lawsuit over First Amendment rights was settled by Haskell Indian Nations University after Jared Nally, former editor-in-chief of The Indian Leader, sued the school and previous university President Robert Graham. Haskell is required to pay $40,000 in legal fees, but Nally awaits a Supreme Court decision which may alter the cases outcome.

In October 2020, Nally was issued a directive that impeded his rights as a student journalist at Haskells The Indian Leader. The directive instructed Nally to comply with various practices, including not recording anyone at Haskell without notifying them first. Kansas is a one-party consent state.

This directive was issued by Graham, and although it was supposed to be repealed after six weeks, it was active for around 90 days, according to this FIRE article. FIRE, or the Foundation for Individual Rights in Education, is a nonprofit organization that helps students fight for their rights without a financial burden.

Nally was issued the directive after he sent an email to the Lawrence Police Department, asking them for a statement on a staff members death.

Receiving the directive that I got in October was a clear abridgment of free speech on our campus, and it was an example of our student newspapers relationship with the administration, Nally said. If that went unchecked, then we would endanger the future of free press at our university.

According to Haskells Code of Student Conduct, students free speech was only allowed if they were abiding by the universitys Circle Values, which stands for community, integrity and respect, among other standards.

And so, my case was one where the critical coverage on our university wasnt considered respectful, Nally said.

Nally and FIRE officially filed a lawsuit against Graham and Haskell in March 2021, but before that, they started with forms of advocacy, such as writing letters to the university. They first wrote about the directive that Nally received, as well as writing about some of the universitys policies that needed change.

Graham was removed from his position as president after the lawsuit was filed, according to FIRE.

Since Haskell is a federally operated university, they were represented by federal attorneys. This added some challenges to the case.

For Haskell, it was the Department of Justice who was representing the university, so federal attorneys, which adds a couple of interesting procedural wrinkles to the case, said Patton. Otherwise, for FIRE, it was a standard case of trying to come in and defend the rights of this student and these student journalists to keep doing what they need to do to be a voice on campus.

According to Katlyn Patton, who is a staff attorney for FIRE and worked on Nallys case, if the Supreme Court were to say that a First Amendment retaliation under Bivens is appropriate and rules in favor of Boule, FIRE would be able to go back to the district court with the claim against Graham.

Nally and The Indian Leader made a claim against Graham in his individual capacity for damages as the directive he made interfered with the papers operation and harmed them. This claim was initially dismissed because its harder to make that claim with the challenge of it being a federal defendant, according to Patton.

Jared was subjected to the directive for months, really kind of recklessly because Graham said he intended to resend it and just forgot to for several months, Patton said. To recover from that lengthy harm, we were seeking damages. The claim against Graham sought damages against him in his individual capacity for the retaliation he engaged in and that is the only claim that would be subject to an appeal and impacted by the Supreme Court case.

As of now, all of the claims that Nally and The Indian Leader made against the University and other federal officials in their official capacities have been settled through a consent decree.

This could change, though, after the Supreme Court makes their ruling on the Egbert v. Boule case, which should be decided by the first week of July.

This upcoming Supreme Court case could challenge the 1971 case of Bivens v. Six Unknown Named Agents ruling, and this would be ideal for Nallys claim against Graham for damages.

In the Bivens case, the ruling was that federal officials cant be sued for damages regarding the deprivation of a constitutional right.

So, for now, most of the legal work is done until that decision is made.

Our position is, it kind of doesnt make sense to continue arguing it at this stage when that case is pending and should be decided by the end of the term, Patton said.

The outcome so far has been in favor of Nally and The Indian Leader. Haskell Indian Nations University was required to pay $40,000 to FIRE for attorneys fees. Some changes have been made to increase transparency about the funding the paper is getting and when they are supposed to get it, and this was established in a consent decree.

Further, some changes were made to The Indian Leaders Plan of Operations to give students more of a say on who their advisor is. The language was also changed in the Code of Student Conduct.

The university agreed to change the Code of Student Conduct so we dont have any language that would allow for the abridgment of free speech rights, Nally said.

Because of the award settlement for attorneys fees, Nally is under no legal expense for this case.

I think thats the amazing part of nonprofits and being able to help students or other entities out in a situation where we already have the financial burden of education, that we might not have the resources to advocate for our rights, and just because we dont have resources doesnt make that an opportunity for schools to take advantage of that, Nally said.

Nallys path ahead

Nally graduated in December with his bachelors degree in Indigenous and American Indian Studies, but he knew it was important to fix the issue at hand rather than just push through to graduation.

We matriculate through our college careers, and I think its really hard for every instance to go checked, where I think a lot of students who had that experience or may have been censored or retaliated against, kind of just think that its just one more year. If I just get through it, Im done, Nally said. They might not necessarily think about what their actions could do for the next generations of students from kind of stopping that kind of mentality or treatment that might be fostered at the university.

Nally has received immense support throughout the process of this lawsuit and legal situation. He mentioned that one of his greatest supporters was Rhonda LeValdo, who was their newspaper faculty advisor.

I think Rhonda LeValdo, who was our newspaper faculty advisor, played a huge part in supporting the students and the paper throughout this whole process, Nally said. I think she did a great job when we were doing critical coverage about understanding what free press rights were, and the importance of the work that we were doing.

He also mentioned that he has received support from the Native American Journalist Association, the Student Press Law Center and other journalism organizations.

Patton said that its important for student journalists to have their constitutional rights for two main reasons: the benefit of the campus community and society, and the benefit of student journalists themselves.

Even in the recent Mahanoy case from the Supreme Court, Justice [Stephen] Breyer talked about how campuses are incubators for democracy, and students should be learning how to be a journalist, Patton said. Student journalists are on campus, theres a lot of times where theres big campus stories that are important, and local media maybe isnt interested or national media wouldnt be interested, but those stories really need to be told. Campus administrators, like Graham, really need to be held accountable for their actions.

Since graduation, Nally took on a freelance job as a guest editor for Kansas! Magazine and has plans to continue going to school.

I have plans to continue on to grad school, and hopefully gain some skills that are important for our tribal community and government and future sovereignty, Nally said. So, it might not necessarily be graduate school for journalism, but its still going to be a skill set that allows me to work within our community.

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Lawsuit settled between former Indian Leader editor-in-chief and Haskell Indian Nations University - The University Daily Kansan