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Yesterday afternoon, FIREjoined the (SPLC) in filing an amicus brief on behalf of appellants Katie Lane and Sarah Rice, requesting that the Tenth Circuit Court of Appeals grant a panel rehearing or rehearing en banc in the case of , Nos. 05-3266 & 05-3284 (10th Cir. 2007). In the brief, FIREand the SPLC urge the Tenth Circuit to revisit last month’s decision that the First Amendment claims made by Lane and Rice, former editors of , were moot because the students had graduated while their case was under review.

Lane and Rice argue that violated their First Amendment rights because the adviser’s removal was motivated by the school’s criticism of the paper’s content. Their claim was initially dismissed by the reviewing district court, which ruled that Lane and Rice had failed to present a claim upon which relief could be granted, before being dismissed on appeal by the Tenth Circuit last month. The Tenth Circuit’s ruling is particularly troubling because instead of reaching the merits (or lack thereof) of Lane and Rice’s First Amendment claim, the court instead rested its decision on the fact that because Lane and Rice had graduated by the time of the hearing, defendant Kansas State could no longer encroach upon their First Amendment rights. Besides conveniently sidestepping the crux of the former editors’ claims, the Tenth Circuit’s ruling, if allowed to stand, would create a dangerous incentive for schools to time punishments for student speech until prior to the student’s graduation (or expulsion), as the conclusion of the student’s enrollment would thus preclude any judicial redress based on the First Amendment. As I wrote last month, the Tenth Circuit’s ruling would therefore “point administrators towards an inviting loophole to the First Amendment that we fear they will be all too eager to exploit.”

FIRE would like to thank Mark Goodman, the SPLC’s Executive Director, and Adam J. Biegel of Alston & Bird LLP for authoring the brief. Also joining are the , the , , , the , the , and the . We’ll keep you posted.