Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
VICKY DIAZ-CAMACHO, individually and in
her capacity as Editor in Chief of the University
Daily Kansan;
KATIE KUTSKO, individually and in her
capacity as prior Editor in Chief of the
University Daily Kansan; and
THE UNIVERSITY DAILY KANSAN,

)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
BERNADETTE GRAY-LITTLE, in her capacity )
as the University of Kansas Chancellor and in )
her individual capacity; and
)
TAMMARA DURHAM, in her capacity as the )
University of Kansas Vice Provost for Student )
Affairs and in her individual capacity,
)
)
Defendants.
)

Case No. 16-cv-2085-CM

MEMORANDUM AND BRIEF IN OPPOSITION

TO DEFENDANTS MOTION TO DISMISS
COME NOW Plaintiffs, by and through counsel, and for their Memorandum and Brief in
Opposition to Defendants Motion to Dismiss (Doc. 4), state the following:
1. Statement of the Matter Before the Court
The defendants, administrators at a state university, consciously and voluntarily slashed
government-fee funding to the universitys student newspaper to punish the newspaper and its
editorial staff for their criticism of campus activities. As stated in the Complaint, the desire and
intent to chill the plaintiffs exercise of constitutional press freedoms were confirmed by
numerous sources. The defendants did not disavow this attack on First Amendment rights, and

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 2 of 32

instead cut funding to the student newspaper in half, incorporating the reduced funding into the
Fee Schedule for the official school budget for 2015-2016.
As a result, the newspaper cut back on staffing and the student editors struggled with how
to cover campus news, knowing that further retaliation could result. And as stated in the
Complaint, the threat of additional retaliation was in fact reported to a news editor. After the
Complaint was filed, this reduced funding was provisionally extended for an additional term in
the state universitys 2016-2017 budget; the student editors sought relief from the defendants, but
defendants have refused to even acknowledge this request. Unless defendants act or are forced to
act, this content-based reduced funding will continue into the foreseeable future.
Plaintiffs are the proper parties to bring this action and to seek redress for these
constitutional violations. The defendants funding cut to the student newspaper was based on its
content, violates the First Amendment and does not withstand the scrutiny required for such
retaliation.
The required fact-intensive analysis of the defendants decision making role in punishing
the exercise of constitutional press rights on campus confirms that defendants are state actors
who were fully aware of and actively involved in the decision to retaliate against plaintiffs.
Whether this Court views the students involved in initial budget discussions as state actors,
private citizens or (as defendants have theorized) members of a state legislature, the defendants
conduct which is the focus of these claims establishes liability for the constitutional violation that
is continuing in nature, both in the current budget cycle and in upcoming funding.
This Court should allow plaintiffs claims to proceed.
2

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 3 of 32

2. Statement of the Facts

While this Court should review and accept all facts presented by plaintiffs as true for
purposes of this motion, plaintiffs believe the following facts are of particular significance for a
ruling on defendants motion.
The first named plaintiffs are Vicky Diaz-Camacho and Katie Kutsko. Complaint, Doc. 1,
3. These two plaintiffs work at the Kansan, and during critical times in the history and this
litigation they have held the position of Editor-in-Chief of the Kansan. Doc. 1, 3; Ex. 1 and Ex.
2 (Declarations of Vickey Diaz-Camacho and of Katie Kutsko). The Editor has responsibility for
the editorial content of the Kansan. Doc. 4-1 (UDK Constitution). Katie Kutsko was Editor-inChief at the time the critical editorial was first published, and again during the first semester
(Fall 2015) when the Kansan had to deal with the financial damage of the cut in funding
triggered by the Kansans publication of that editorial. Ex. 2. Katie Kutsko continues to work on
the Kansan news staff during the current (Spring 2016) semester, once again under the reduced
funding level. Id. Vicky Diaz-Camacho is the current Editor-in-Chief for the Kansan. Ex. 1. She
bears responsibility for the Kansans content. Doc. 4-1. During both the Fall 2015 and the
current Spring 2016 semesters, the Kansan had operated without an editorial adviser because of
the reduction in the Kansans funding. Exs. 1, 2. This reduced funding has caused the Kansan to
cut the number of reporters and to trim the hours that the remaining reporters work. Exs. 1, 2.
The third plaintiff is the University Daily Kansan, an unincorporated association
governed by a Constitution that was approved by Chancellor Gray-Littles predecessor. Doc. 1
3, Doc. 4-1.
3

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 4 of 32

Besides its advertising, the major source of the Kansans funding is from the mandatory
student activity fee. Doc. 1 8. Defendant Gray-Little establishes the fee amounts as part of the
Universitys official budget, sometimes upon recommendation from the student senate
organization. Doc. 1, 4, 24. But Gray-Little also has unilaterally imposed fees for matters of
significance to the University, such as KU athletics. Doc. 1, 39. The Kansans funding from the
student activity fee had been set at $2.00 per student before the 2015-2016 budget. Doc. 1, 15.
The Kansan transitioned to a digital first format, consistent with the trend for national
and general news organizations. Doc, 1, 9. This reduced the number of hard copies of the
Kansan published on a weekly basis, with a commensurate decline in advertising revenue. Lower
publishing costs did not match this decline in revenue, leaving the Kansan more dependent on
funding from the student activity fee. Id.
The Kansan learned of numerous criticisms of its content made during the fee review
process but before a proposed activity fee amount was forwarded to the Chancellor. Doc. 1,
13-22; Ex. 3, Declaration of Jon Schlitt. These criticisms came from student leaders whose
actions and procedures were the focus of the editorial; the Kansan categorized the procedures as
confusing and called out inadequacies in the election process. Doc. 1, 10-12. Among
other facts, this documented evidence consisted of the following, all of which was stated as part
of or contemporaneous with the fee review process:
The student vice president said I would be worried if I was the UDK;
The student president complained, Why do they always make me sound like a
dumbass?;
4

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 5 of 32

The student president was disappointed in the Kansans coverage, the lack of
quality reporting, and was angry over Professor Johnsons editorial;
The student president wanted to punish the Kansan for the editorial and
encouraged the fee review committee to punish the Kansan with a reduction in
funds until editorial content had been fixed;
The former student vice president said some of the coverage had been really
problematic, articles were not vetted before publication, that the editorial content
was a main factor in decreasing the Kansans funding, and that the fee reduction
would be reviewed the following year after these problems had been addressed.
Doc. 1, 13-20; Ex. 3.
The recommendation to the Chancellor was to cut the Kansans funding from the student
activity fee in half. Doc. 1, 21-22, Ex. 3.
The Kansan provided these facts and a letter from the Student Press Law Center to the
Chancellor before she finalized the 2015-2016 budget. Doc. 1, 23-24; Ex. 3. Gray-Little
authorized defendant Durham to handle this matter. Doc. 1, 24; Ex. 3. The Kansan provided
this same evidence to Durham, but Durham did not review this before meeting with the Kansan,
expressing surprise at the critical comments made about the Kansan as part of the budget
consideration process. Doc. 1, 25-26; Ex. 3. The student president was also present, and did
not deny criticizing the Kansan and encouraging a reduction in the Kansans fee to fix its
content. Doc. 1, 26; Ex. 3. The Kansans Chairman of the Board warned told both defendants
that reducing the Kansans fee because of its content would violate the First Amendment. Ex. 3.

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 6 of 32

The defendants took no further action to respond to this constitutional violation. Doc. 1,
28-31; Ex. 3. Instead, the defendants slashed the Kansans funding in the Universitys 20152016 budget by fifty percent. Doc. 1, 31; Ex. 3. No other student organization experienced this
financial reduction in the budget. Doc. 1, 22.
As a direct result of the reduction in its funding, the Kansan has operated without an
editorial adviser. Doc. 1, 33; Exs. 1-3. This reduced funding has caused the Kansan to cut the
number of reporters and to trim the hours that the remaining reporters work. Id.
Roughly one month before the fee review process began for the 2016-2017 budget, a fee
review committee representative told the Kansans news editor that the Kansan staff got what
you deserved and that the Kansan had bit the hand that fed it. Doc. 1, 37; Ex. 3.
After plaintiffs filed this lawsuit, the recommendation to the Chancellor was to keep the
Kansans funding for the 2016-2017 budget at the reduced level. Ex. 1. Vicky Diaz-Camacho
wrote to Gray-Little, pleading with the Chancellor to stop this retaliation against the Kansan for
its content. Doc. 1, 38; Ex. 1. The Chancellor did not respond to this plea. Ex. 1.
The Universitys 2016-2017 budget will soon be finalized.

3. Questions Presented
When accepting as true all facts presented by plaintiffs, have defendants met their burden
of proof to challenge plaintiffs standing, the legal sufficiency of the claims presented, and the

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 7 of 32

appropriateness of the relief sought, and have defendants met their burden of proof on the
applicability of Legislative Immunity to public university administrators and students.
Plaintiffs submit that the answers to all questions are in the negative.
4. Argument
This Response is organized by a review of the appropriate legal standards; a discussion of
the parties both the plaintiffs and the defendants; authority for the claims that are presented;
analysis of the Legislative Immunity asserted by defendants; a review of the causation defense
based on Legislative Immunity; and a brief discussion of the declaratory relief sought against
defendants in their official capacity. Finally, for completeness and out of an abundance of
caution plaintiffs seek and reserve the right to amend any portion of the Complaint as directed by
the Court.

A. Legal Standards for Ruling on a Motion to Dismiss

The Court and defendants should accept all well-pleaded allegations as true and construe
all reasonable inferences from those facts in favor of the plaintiffs. Witt v. Roadway Express,
136 F.3d 1424, 1428 (10th Cir. 1998). [W]e must determine whether the complaint sufficiently
alleges facts supporting all the elements necessary to establish an entitlement to relief under the
legal theory proposed. Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Although a plaintiff must provide more than labels and conclusions, [or] a formulaic recitation
of the elements of a cause of action, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 8 of 32

[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests. Erickson v. Padrus, 551 U.S. 89 (2007).
Only when it appears beyond a doubt that a plaintiff can prove no set of facts that
would allow relief should dismissal be ordered. Maher v. Durango Metals, Inc., 144 F.3d 1302,
1304 (10th Cir.1998). The issue is whether a plaintiff is entitled to offer evidence to support the
claims. Scheuer v. Rhoades, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v.
Scherer, 468 U.S. 183 (1984).
(The Parties)
B. The Appropriate Parties are Before This Court - Plaintiffs Have Standing to
Bring These Claims and Defendants are the Proper Parties for the Relief Sought
Herein (Parts IV, V, VI and VII of defendants motion)
In their motion Defendants take the position that none of the plaintiffs are the proper
parties to bring the constitutional claims asserted here. Defendants phrase this as a standing
issue. In ruling on such a motion, the Court and defendants must assume that the allegations of
the complaint are true and construe the allegations in favor of plaintiffs. Cressman v. Thompson,
719 F.3d 1139, 1144 (10th Cir. 2013).
Plaintiffs Vicky Diaz-Camacho and Katie Kutsko have brought this lawsuit both
individually and in their representative capacity as, respectively, current and former editors-inchief of the Kansan. The Kansan also sues. Plaintiffs allege that they engaged in conduct
protected under the First Amendment, that the defendants took action against them and chilled
the plaintiffs protected press freedoms, and that plaintiffs protected conduct was a substantial
or motivating factor for the defendants action. All plaintiffs seek injunctive relief, a declaratory
judgment, and nominal damages. See p. 15 of the Complaint (Doc. 1).
8

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 9 of 32

The fundamental requirements of standing are an injury in fact caused by the conduct
complained of that will likely be redressed by a favorable decision in the case. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). At bottom, the gist of the question of
standing is whether [plaintiffs] have such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination. Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007)
(quotations omitted).
Because of the significance of First Amendment rights, the Supreme Court has
enunciated other concerns that justify a lessening of prudential limitations on standing. Phelps
v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.1997)(quoting Sec'y of State of Md. v. Joseph H.
Munson Co., 467 U.S. 947, 956 (1984).
This is, of course, a case where an actual controversy exists. See Surefoot LC v. Sure
Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). Plaintiffs are not seeking an advisory opinion.
Defendants took away the Kansans funding in retaliation for the Kansans content, and
plaintiffs seek to stop this injury and have the funding restored.

I. Injury in Fact to These Plaintiffs

As alleged in the Complaint, the plaintiffs gather and report news as the student voice for
the University of Kansas. Defendants have provided a copy of the Kansans Constitution Doc. 41; as stated therein, the Kansans editor bears full responsibility for its editorial content.

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 10 of 32

Displeasure arose at the University of Kansas because the Kansan criticized campus
elections, categorizing the process as confusing and pointing out inadequacies in election
procedures. Plaintiff Katie Kutsko was editor-in-chief when the Kansan published these
criticisms.
The Kansan is funded through its advertising and student activity fees. The defendants
herein, the Vice Provost of Student Affairs, and the Chancellor of the University, review student
recommendations on the student activity fee portion of the universitys budget, including the
Kansans portion of this fee. The University collects and distributes these mandatory fees.
In the next budget after this editorial was published, defendants cut funding to the
Kansan in half. This reduced funding established an injury in fact, since withdrawing financial
support to a student newspaper constitutes censorship of constitutionally protected expression.
Joyner v. Whiting, 477 F.2d 456, 460 (4th Cir. 1973).
The Doyle decision cited by defendants, Doyle v. Oklahoma Bar Assn, 998 F.2d 1559
(10th Cir. 1993), does not support dismissal of these plaintiffs. Doyle sought to interject himself
into a state bar disciplinary proceeding, but this was insufficient to establish jurisdiction, or
injury to this litigant. [T]he only one who stands to suffer direct injury in a disciplinary
proceeding is the lawyer involved. Doyle has no more standing to insert himself substantively
into a license-based discipline system than he has to compel the issuance of a license. Doyle,
998 F.2d at 1567. And unlike the unsuccessful appellant in Robbins v. Oklahoma, 519 F.3d 1242
(10th Cir. 2008), plaintiffs allegations here have made it clear who did what to whom:

10

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 11 of 32

defendants cut state funding to the Kansan in half because of dissatisfaction with the Kansans
content.
There is no dispute that First Amendment rights extend to the campuses of state
universities. Widmar v. Vincent, 454 U.S. 263, 268-69 (1981). The content of a student
publication cannot be a basis for funding decisions. Rosenberger v. Rector Visitors of Univ. of
Virginia, 515 U.S. 819 (1995). A public university may not constitutionally withhold funding
from a student newspaper because it disapproves of the content of the paper. Stanley v. Magrath,
719 F.2d 279, 282 (8th Cir. 1983).
Plaintiff Vicky Diaz-Camacho is the current editor-in-chief, while plaintiff Katie Kutsko
held that position in fall 20151; in this capacity both suffered from the reduced operating funds
due to defendants cut to the Kansans funding for the 2015-16 budget cycle. The defendants cut
in the funding required defendants to eliminate and not fill editorial positions at the Kansan and
to reduce hours for remaining editorial staff.
In the First Amendment context, injury occurs when a plaintiff is chilled from exercising
those constitutional rights. See, e.g., Ward v. Utah, 321 F.3d 1263, 1267, 1269 (10th Cir. 2003).
A chilling effect arises from the deterrent effect of governmental action, even if this falls short of
a direct prohibition against the exercise of First Amendment rights. Laird v. Tatum, 408 U.S. 1,

Former student editors are proper plaintiffs to bring such claims. See, e.g., Stanley v.
Magrath, 719 F.2d 279 (8th Cir. 1983); see also Case v. Unified School Dist. No. 233, 895
F.Supp. 1463 (D.Kan. 1995) (former students could pursue injunctive and declaratory relief for
school officials removal of controversial book from school libraries).
11

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 12 of 32

11 (1972). The very essence of a chilling effect is an act of deterrence. Freedman v. Maryland,
380 U.S. 51, 59 (1965).
When a state university official takes retaliatory action against a newspaper its content,
the official's action creates a chilling effect which gives rise to a First Amendment injury.

See

Stanley v. Magrath, 719 F.2d at 283. The Declarations of plaintiffs Diaz-Camacho and Kutsko
confirm that this chilling effect. The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347,
373-74 (1976).
This case involves a direct, monetary injury in retaliation for the exercise of First
Amendment rights. The retaliatory reduction in funding deterred plaintiffs from gathering and
reporting on the news, and constituted an unconstitutional chilling effect on the exercise of those
rights.

II. The injury is fairly traceable to the defendants conduct

As alleged in the Complaint, defendants cut funding to the Kansan in half, from $2 to $1.
This reduced funding is identified as a line-item in the Universitys official budget setting forth
mandatory student activity fees. Ex. 4, University of Kansas Comprehensive Fee Schedule,
FY2016, at pg. 6. Defendants are the state actors who made this budget decision.
Defendants claim that it was not their conduct that injured plaintiffs; instead, defendants
are in effect blaming KU students for this unconstitutional retaliation against the Kansan and its
editors. Plaintiffs have described the involvement of these students in the Complaint. While
12

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 13 of 32

conduct of other people may have contributed to a harm, that does not alter the conclusion that
defendants are liable for their actions. See Northington v. Marin, 102 F.3d 1564, 1569 (10th Cir.
1996).
None of their blame-shifting diminishes the defendants role. There is no budget without
the defendants approval. There is no financial punishment against the Kansan without the
defendants conduct. This was more than just tacit approval in, or rubber stamping of, a sheet of
paper that comes across a state administrators desk; this case involves the Universitys official
budget. Plaintiffs met with each of the defendants and pointed out to them the unconstitutional
retaliation in reducing funding because of the Kansans content, and these statements have not
been denied. This violation of plaintiffs First Amendment rights was foreseeable, and
preventable. In recent years the university administration has unilaterally increased the
mandatory student activity fee to fund KU athletics. Defendants had the opportunity to do the
same here to avoid a constitutional violation.
The cut in the Kansans funding is an injury that is directly traceable to the defendants.

III. A Favorable Decision on the Merits Will Redress the Injury

As relief for this constitutional violation, plaintiffs seek injunctive and declaratory relief,
including nominal damages. Complaint, Doc. 1, p. 15. Such relief is appropriate for the
defendants actions. Section 1983 independently provides a right to obtain injunctive relief. See
Wilder v. Virginia Hospital Assn, 496 U.S. 498, 501 (1990). Plaintiffs specifically seek an
injunction prohibiting Defendants, their successors, and assigns, and all persons acting in concert
therewith from enforcing the retaliatory budget allocation and reducing the Kansans student
13

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 14 of 32

activity fee allocation from its 2014-2015 level; and prohibiting them from enforcing further
retaliatory allocations in the 2016-2017 budget.
Such relief addresses the injury that plaintiffs have suffered by focusing on the funding
that was slashed in retaliation for the Kansans content. Injunctive relief has long been
recognized as the proper means for preventing entities from acting unconstitutionally. Federal
Deposit Insurance Corporation v. Meyer, 510 U.S. 471, 474 (1994).
The real and imminent likelihood of future injury supports plaintiffs claims for
prospective injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). As
shown by the plaintiffs Declarations, the Kansan and its editorial staff have been injured and
will continue to suffer because the defendants cut the Kansans funding.
Moreover, plaintiffs are threatened because without intervention this retaliation will be
repeated in the 2016-2017 budget and the chilling effect on the Kansans newsroom will
continue. Since this lawsuit was filed, this threat has moved closer to reality. The Kansan stands
to suffer further retaliation because the proposed upcoming budget keeps the Kansans funding
at only one-half of the previous amount. Plaintiffs have requested that defendants intervene as
the Chancellor had done on student activity funding to KU athletics but defendants failed to
even acknowledge this plea. These are continuing, adverse effects that can only be corrected
through judicial intervention.
Similarly, declaratory relief is appropriate for First Amendment violations. The text of
1983 provides that defendants shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. This language has been construed to include
14

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 15 of 32

declaratory relief. Carey v. Piphus, 435 U.S. 247 (1978) (action for declaratory judgment,
injunctive relief, and damages). A claim for declaratory judgment is generally prospective, but
declaratory relief is treated as retrospective to the extent that it is intertwined with a claim for
monetary damages that requires us to declare whether a past constitutional violation occurred.
PETA v. Rasmussen, 298 F.3d 1198, 1202 n.2 (10th Cir. 2002)
Plaintiffs actual injury entitles them to damages under Section 1983 for violation of their
constitutional rights. See Dill v. City of Edmond, 155 F.3d 1193, 1209 (10th Cir. 1998).
Significantly, in Carey v. Piphus the Court authorized the recovery of nominal damages not only
to perform a declaratory function, but also to vindicate legal rights. 435 U.S. at 266-67. The
Tenth Circuit has followed and expanded upon this approach. In Committee for the First
Amendment v. Campbell, the Tenth Circuit did not dismiss the claim for nominal damages as
moot even when the claim for injunctive relief was dismissed. The court took a benevolent
approach to nominal damage awards and found that this sole basis of relief conferred standing:
We reverse due to legal error...., the district court erred in dismissing the nominal
damages claim ... . If proven, a violation of First Amendment rights concerning freedom
of expression entitles a plaintiff to at least nominal damages.
Committee for the First Amendment, supra, 962 F.2d 1517, 1526-27 (10th Cir. 1992).

Plaintiffs have shown that they meet all the elements for standing to pursue the relief
sought in their Complaint.

15

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 16 of 32

IV. The Kansan Has Standing to Bring Constitutional Claims

in Federal Court
Defendants motion includes the contention that under the state law of Kansas, the
Kansan cannot bring this lawsuit as a plaintiff. Defendants may be correct on this point, and are
correct that the Kansan is unincorporated, but neither of these facts is dispositive for the standing
issue. Defendants did not address Rule 17(b)(3) of the Federal Rules of Civil Procedure, which
provides
Rule 17. Plaintiff and Defendant; Capacity; Public Officers
(b) Capacity to Sue or Be Sued. Capacity to sue or be sued is determined as follows:
(1)

or an individual who is not acting in a representative capacity, by the law of the

individual's domicile;

(2)

for a corporation, by the law under which it was organized; and

(3)

or all other parties, by the law of the state where the court is located, except that:
(A) a partnership or other unincorporated association with no such
capacity under that state's law may sue or be sued in its common name to enforce
a substantive right existing under the United States Constitution or laws;

Plaintiff Kansan is entitled, even as an unincorporated association situated in Kansas, to

bring this action in federal court to enforce First Amendment rights; congressional intent for this
conclusion is evident from adoption of the Federal Rules of Civil Procedure. And the Kansans
Constitution makes clear that this unincorporated organization is governed by a Board of
Directors and runs as a business. Defendants motion also does not address Lippoldt v. Cole, 468
F.3d 1204 (10th Cir. 2006). In that decision F.R.C.P. Rule 17(b)(3) was not raised by the parties
or discussed by the Court. That decision did not address the congressional intent that is evident
from enactment of Rule 17(b)(3), and where the congressional intent is clear, it governs.
Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 837 (1990).
16

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 17 of 32

V. Defendants are Proper Parties for the Relief Sought

(Part III -V of defendants motion)
A significant aspect of the defense strategy seems to be an effort to distance themselves
from the public universitys budget process. The facts show otherwise. The plaintiffs proof will
demonstrate an affirmative link between the constitutional deprivation and defendants personal
participation and exercise of control or direction. See Meade v. Grubbs, 841 F.2d 1512, 1527
(10th Cir. 1988). The fact that the constitutional violation began at the student level does not
absolve defendants from their responsibility for and control over the public universitys budget.
In the past few years, the KU administration has exercised authority and control over the student
activity fee, adjusting amounts as they deemed necessary or appropriate. See 39 of the
Complaint (defendant Gray-Little unilaterally increases student activity fee to fund KU
athletics).
Defendants were put on notice of the constitutional violation arising from the cut in the
Kansans funding based on its content. Both defendants participated in the decision to do
nothing. When governmental policymakers are put on notice of constitutional violations and do
nothing, such a policy of inaction is deemed to be the functional equivalent of a decision by
the [governmental entity] itself to violate the Constitution. City of Canton v. Harris, 489 U.S.
378, 395 (1989).
The proper defendants in a 1983 claim are those who represent [the state] in some
capacity, whether they act in accordance with their authority or misuse it. Nat'l Collegiate

Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S.
17

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 18 of 32

167, 172 (1961). The Tenth Circuit has found 1983 liability based upon a decision made by a
final policymaker; see, e.g., Flanagan v. Munger, 890 F.2d 1557, 1568-69 (10th Cir.
1989)(finding 1983 liability where decisions of police chief for all intents and purposes were
final decision).
Contrary to the Kansas Constitution, defendants identify themselves and dozens of KU
students as members of the Kansas legislature, and thereby entitled to legislative immunity. The
actions of both the KU Student Senate and the defendants in this case are legislative in nature.
Doc. 4 at p. 17. Such a self-serving proclamation would be a surprise to the state representatives
in Topeka who have actually been voted into office, and such a claim would deserve more
discussion if defendants had provided the Court with even one case holding that public university
administrators and students are in fact state legislators. This case certainly would be the first to
so hold.
Article 2 of the Kansas Constitution establishes and describes the states legislative body;
defendants do not fall within this definition. While the Tenth Circuit interprets legislative
immunity broadly, Sable v. Myers, 563 F.3d 1120, 1125 (10th Cir. 2009), this is quite different
from interpreting broadly who is in the legislature, as defendants would have this Court do.
As shown by the Supreme Court decision in Rosenberger v. Rector Visitors of Univ. of
Virginia, 515 U.S. 819 (1995), by the Fourth Circuits holding in Joyner v. Whiting, 477 F.2d
456 (4th Cir. 1973) and the Eighth Circuits decision in Stanley v. Magrath, 719 F.2d 279 (8th
Cir.1983), funding of student publications is not a legislative process, and the withholding of
state funds to these news outlets based on content violates the First Amendment. None of those
18

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 19 of 32

parties and neither of the defendants here are somehow legislators, legislative immunity does not
apply.
Defendants are the decision makers for the state universitys budget, including the
recommendations on funding that are received from student leaders. They are proper defendants
for this 1983 claim. Defendant Gray-Little was the final decision maker on the universitys
budget, and had unilaterally imposed mandatory fees on KU students to fund the universitys
athletic program. Defendant Gray-Little directed defendant Durham to investigate the
constitutional violations against the Kansan, and Durham handled the meeting with the Kansan
and student leaders, who did not deny having said that the Kansans funding needed to be cut
until its content improved. Both Gray-Little and Durham decided to do nothing, and by not
acting violated the Constitution. City of Canton v. Harris, 489 U.S. 378, 395 (1989).
(The Claims)
C. Plaintiffs Are Authorized to Bring Count I Claims (Part I of defendants Motion)
The concept of a direct claim under the federal Constitution is neither novel nor new. The
Supreme Court explained its understanding of jurisdiction over such claims in this manner: the
district court has jurisdiction if the right of the petitioners to recover under their complaint will
be sustained if the Constitution and laws of the United States are given one construction and will
be defeated if they are given another, unless the claim clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or where such a claim is wholly
insubstantial and frivolous. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89
(1998)(citations omitted).

19

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 20 of 32

Relying on 28 U.S.C. 1331 as a basis for jurisdiction, the telecommunications company

Verizon filed an action in the U.S. District Court for the District of Maryland against the Public
Service Commission of Maryland, its individual members in their official capacities, and others.
Verizon Md. Inc. v. Public Serv. Commn of Md, 535 U.S. 635 (2002). In its complaint, Verizon
sought declaratory and injunctive relief on the basis that the state commissions order was
unconstitutional. Writing for the Supreme Court, Justice Scalia found no indication that
Verizons claim was immaterial or wholly insubstantial and frivolous. 535 U.S. at 643.
Verizons constitutional challenge thus fell within 28 U.S.C. 1331s general grant of
jurisdiction and was upheld by the Supreme Court.
For the claims in Count I of their Complaint, plaintiffs seek similar relief to what Verizon
pursued against the Maryland state commission. See plaintiffs Prayer for Relief. Plaintiffs
claims in Count I and the relief sought is consistent with the Supreme Courts holding in the
Verizon decision.
For litigation arising under the First Amendment, the Supreme Court has assumed,
without so holding, the viability of Bivens-type claims. The Court made this assumption in
Hartman v. Moore, where a Bivens plaintiff claimed that government employees violated his
First Amendment rights by participating in retaliatory litigation against him. Hartman v. Moore,
547 U.S. 250 (2006). More recently, the Court reiterated this belief in Ashcroft v. Iqbal, stating
that it was assum[ing], without deciding, that [a] First Amendment claim is actionable under
Bivens. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1948 (2009).

20

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 21 of 32

Another district court in this Circuit addressed Tenth Circuit precedent in considering a
direct claim brought under the First Amendment against state actors. After a thorough analysis of
the decision in Planned Parenthood of Kansas & Mid-Missouri v. Moser, 747 F.3d 814 (10th
Cir. 2014), the District Court for the District of New Mexico held
Because SWEPI, LP can bring its claims under the First, Fifth, and Fourteenth
Amendments through 1983, Planned Parenthood of Kansas and Mid-Missouri v.
Moser not only does not prevent SWEPI, LP from bringing a claim under the
Supremacy Clause for those violations, it suggests that SWEPI, LP can bring such a
claim.
Swepi, LP v. Mora County, No. CIV 14-0035 JB/SCY, Slip. Op. at p. 9 (D.N.M. Jan.
19, 2015).

This area of constitutional law has been developing during the twenty-first century. Rather
than viewing the propriety of 1983 as a basis for precluding such claims, the current trend is to
recognize such claims as further support for direct claims under the Constitution, at least for the
type of relief plaintiffs seek in this lawsuit. cf. Verizon Md. Inc., supra, 535 U.S. 635. Plaintiffs
claims in Count I fit squarely within this authority and should go forward.

D. Plaintiffs Are Authorized to Bring Count I Claims (Part II of defendants motion)

Defendants challenge to Count II of the Complaint relies solely on the Kansas Tort
Claims Act, K.S.A. 75-6101 et seq. (Kansas Tort Claims Act Does Not Create a Right of Action
for Constitutional Torts). Plaintiffs do not bring their claim against defendants based on the
state Tort Claims Act. See Doc. 1 - Count II. Instead, this is a direct claim based on violations of

21

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 22 of 32

the Kansas Constitution and seeking injunctive and declaratory relief. Assertion of this claim is
consistent with a body of Kansas caselaw.
In Brick Co. v. Perry, 69 Kan. 297, 76 Pac. 848 (1904), the Kansas Supreme Court struck
down a Kansas statute which made it unlawful to prevent employees from joining or belonging
to a labor union. Before granting relief, the Supreme Court noted that the petition alleged that the
statute violated both the Fourteenth Amendment to the United States Constitution and section 1
of the Kansas Constitution Bill of Rights. 69 Kan. at 298-99.
Violations of the Kansas Constitution as the basis for a claim for relief are also found in
the criminal law field, such as a double jeopardy challenge based on section 10 of the Kansas
Constitution Bill of Rights. State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).
[I]mposing sentences for both convictions violated Applebys rights to be free from double
jeopardy as guaranteed by the Fifth Amendment to the United States Constitution and 10 of the
Kansas Constitution Bill of Rights. State v. Appleby, 289 Kan. 1017, 221 P.3d 525 (2009).
Recently, a number of Kansas school districts contended that the funding method for
public education adopted by the Kansas legislature was a violation of Article 6 of the Kansas
Constitution. The Kansas Supreme Court found that these direct claims under the Kansas
Constitution presented a justiciable case or controversy. Gannon v. State, 298 Kan. 1107, Syl.
4, 319 P.3d 1196 (2014).
Less than three months ago, the Kansas Court of Appeals considered the appeal of an
abortion rights ruling, and concluded that

22

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 23 of 32

[S]ections 1 and 2 of the Kansas Constitution Bill of Rights provide the same protection
for abortion rights as the Due Process Clause of the Fourteenth Amendment to the
United States Constitution; the district court correctly determined that the Kansas
Constitution Bill of Rights provides a right to abortion.
Hodes & Nauser MDs, P.A., et al. v. Schmidt, No. 114,153, Slip op. at p. ___ (January
22, 2016).

Count II of plaintiffs Complaint asserts a claim directly under the Kansas Constitution.
Section 11 of the Kansas Constitution Bill of Rights states: The liberty of the press shall be
inviolate; and all persons may freely speak, write or publish their sentiments on all subjects,
being responsible for the abuse of such rights . . . .. According to the Kansas Supreme Court,
Section 11 of the Kansas Bill of Rights is generally considered coextensive with the First
Amendment of the federal Constitution. State v. Russell, 227 Kan. 897, 899, 610 P.2d 1122
(1980), cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1985). Challenges to state
statutes under Section 11 of the Kansas Bill of Rights have been considered in State v. Stauffer
Communications, Inc., 592 P. 2d 891, 225 Kan. 540 (1979) and Stephens v. Van Arsdale, 608
P. 2d 97, 227 Kan. 676 (1980).
The state courts of Kansas have entertained lawsuits brought under Article 6 of the
Kansas Constitution and, inter alia, Sections 1, 2, 10 and 11 of the Kansas Bill of Rights.
Consistent with this line of authority, the Kansas Tort Claims Act does not preclude plaintiffs
from bringing this claim in Count II of the Complaint.

E. The Unconstitutional Conditions Doctrine Does Not Preclude Plaintiffs Claims

(Part III of defendants motion)
23

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 24 of 32

It is well-settled law that First Amendment protections extend to public universities. The
Supreme Court has described the university as a traditional sphere of free expression that is
fundamental to the functioning of our society, and as a result governmental control over free
expression on campus is carefully scrutinized. Keyishian v. Board of Regents, 385 U.S. 589,
603, 605-606 (1967)(free speech case).
Funding that student newspapers receive from universities is a too-frequent source of
First Amendment violations when state administrators react adversely to content. A public
university's establishment of a student media outlet typically involves the creation of a limited
public forum, which means that the ability of school administrators to interfere with the speech
made through such an outlet is strictly curtailed. Censorship of constitutionally protected
expression cannot be imposed by withdrawing financial support, or asserting any other form
of censorial oversight. Joyner v. Whiting, 477 F.2d 456, 460 (4th Cir. 1973).
The Eighth Circuit adopted a similar protection of college newspapers funding in
Stanley v. Magrath, 719 F.2d 279 (8th Cir.1983).

After the University of Minnesotas student

newspaper published a humor issue, the Universitys Board of Regents changed the method by
which it funded the newspaper. Student publications in the past had been funded by a mandatory
student fee, but the Board decided to let students obtain a refund of this fee if they so desired.
Former editors of the Daily, the Daily itself, and the Board of Student Publication brought suit.
They claimed that the Regents instituted the refundable fee system in response to the content of
the controversial issue and, as a result, violated the First Amendment. The Eighth Circuit agreed,
explaining that [a] public university may not constitutionally take adverse action against a
24

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 25 of 32

student newspaper, such as withdrawing or reducing the paper's funding, because it disapproves
of the content of the paper. Id. at 282
When the University of Virginia used mandatory student fees to pay for student
publications but then excluded religious speech from this program, the restriction was
impermissible content-based discrimination.

Rosenberger v. Rector Visitors of Univ. of

Virginia, 515 U.S. 819, 833 (1995). In explaining its decision, the Supreme Court stated that
prohibiting expressions based on content was contrary to longstanding [v]ital First Amendment
speech principles, including the need to protect against the danger of chilling student
speech. Id. at 836. The Supreme Court determined that denial of funding equated to denial of
access based on content. Id. at 835-37. See also Board of Regents v. Southworth, 529 U.S. 217,
223, 229 (2000)(mandatory student fee passed constitutional muster only if the university
provided protection in the form of the requirement of viewpoint neutrality in the allocation of
funding support).
The reason why such retaliation offends the Constitution is that it threatens to inhibit
exercise of the protected right. Pickering v. Board of Education, 391 U.S. 563, 574 (1968).
Retaliation can thus be akin to an unconstitutional condition demanded for the receipt of a
government-provided, albeit unrelated, benefit. See Perry v. Sindermann, 408 U.S. 593, 597
(1972). For retaliation cases, the inquiry will necessarily examine the officials motive for
taking the action. Bd. of Cnty. Commrs v. Umbehr, 518 U.S. 668, 675 (1996).
Under the unconstitutional conditions doctrine, the government may not require a
person to give up a constitutional right in exchange for a discretionary benefit conferred by the
25

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 26 of 32

government where the benefit sought has little or no relationship to the property. See Perry v.
Sindermann, supra (teaching position conditioned upon not criticizing college administration).
The Tenth Circuit has said that the focus of the unconstitutional conditions doctrine is
on whether a governmental entity is denying a benefit to [a plaintiff] that [the plaintiff] could
obtain by giving up [his or her] freedom of speech, or is penalizing [the plaintiff] for refusing to
give up [his or her] First Amendment rights. KT G Corp. v. Att'y Gen. of Okla., 535 F.3d 1114,
1136 (10th Cir. 2008). But the matter before this Court is very different from the Moser case
cited by defendants, both factually and substantively. In Planned Parenthood of Kansas and
Mid-Missouri v. Moser, the plaintiff did not bring a private action under 1983 for a Title X
violation, and Title X did not create a private right of action. See Planned Parenthood of Kan. &
Mid-Missouri v. Moser, 747 F.3d at 823-28. By contrast, it has been long recognized that a
private citizen can bring an action under the First Amendment. See Zwickler v. Koota, 389 U.S.
241 (1967)(addressing private action for First Amendment violation). In Count III here, the
plaintiffs have brought a private action under 1983 for the violation of their First Amendment
rights. Plaintiffs allege that defendants retaliated through reduced funding because of the
Kansans content.

While the Moser litigants challenged legislation that had the effect of

disqualifying them from government funding, here plaintiffs do not allege any action by the
Kansas Legislature (which was the focus in Moser) which violated their rights; it was the
defendants, as administrators at this public university, who retaliated for the Kansans content by
cutting its funding.
One of the most recent higher court discussions of this doctrine was three years ago,
when the Supreme Court held that a governmental policy violated the First Amendment because
26

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 27 of 32

it conditioned receipt of federal funding on an organization affirming a belief that by its nature
cannot be confined within the scope of the Government program. The Court made it clear that
[w]ere it enacted as a direct regulation of speech, the Policy Requirement would plainly violate
the First Amendment. United States Agency for International Development v. Alliance for
Open Society International, Inc., 570 U.S. ___, Slip op. at 15. (2013).
Such authority is consistent with the view that the unconstitutional conditions doctrine
prohibits the government from requiring a person to give up a constitutional right in exchange
for a discretionary benefit conferred by the government where the benefit sought has little or no
relationship to the property. See Perry v. Sindermann, 408 U. S. 593 (1972).
Here the situation is different - there is a direct connection between the government
funding that defendants withheld and the plaintiffs exercise of First Amendment press freedoms.
There is a pure and direct relationship between the two, unlike the typical unconstitutional
conditions cases. But plaintiffs claims do not fail simply because they do not fit nicely into the
framework of most unconstitutional conditions doctrine cases; this doctrine is not the full scope
of the sum total of First Amendment protections. Defendants argument sets up a straw man just
to knock it down.
Defendants profess ignorance of motivation to retaliate against the Kansan based on its
content, but if defendants did not know it was only because they were indifferent to the
constitutional violation and its effect. Plaintiffs provided defendant Gray-Little with
documentation showing that the Kansans content was the reason for cutting the Kansans
funding. Professor Johnson told her that clear violations of the First Amendment had occurred
27

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 28 of 32

which required her intervention. When Gray-Little assigned the matter to defendant Durham for
handling, Durham did not even review any of the documentation on the retaliation that had been
hand-delivered to her. Durham expressed surprise when told of a student leaders statement that
the Kansans funding needed to be cut until its content improved. The student leader was present
at this meeting and did not deny saying that the Kansans funding needed to be cut until its
content improved. Professor Johnson told Durham that injecting the Kansans content into the
Fee Review process had infected all funding discussions from top to bottom and in the process
violated the First Amendment. Yet defendants did nothing but demonstrate indifference and
antipathy towards the First Amendment violation. When governmental policymakers are put on
notice of constitutional violations and yet do nothing, their inaction is the functional equivalent
of a decision by the governmental entity itself to violate the Constitution. City of Canton v.
Harris, 489 U.S. 378, 395 (1989).

F. Plaintiffs have Established Causation Against Defendants (Parts III, IV and V of

defendants motion)
Defendants repeat throughout their Motion the causation argument that is based on a
faulty premise (see Doc. 4, pp. 12-15, 15-16 and 17-18). This repetition does not make their
argument any more viable. Defendants claim that they were uninformed and disinterested
bystanders in whatever dispute had arisen on the university campus, and that they had no control
over the student activity fee in the Universitys budget, deferring to the Student Senate.
Plaintiffs have already provided to the Court in this Response the salient facts: that the cut to the
Kansans budget was improperly motivated by the Kansans content; that the defendants were
brought into this dispute to prevent the constitutional violation and were provided evidence of
28

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 29 of 32

this wrongful motivation, which was not disputed by student leaders; that defendants did nothing
to address this constitutional violation; and that defendants had ultimate control over the budget,
including the student activity fee, as shown by defendant Gray-Littles unilateral increase in the
fee to fund KU athletics.
Since legislative immunity does not extend to university administrators or students, and
since the universitys cuts to funding of a student publication based on its content violates the
First Amendment, the defendants causation argument fails both on the facts and the law.
Defendants case of Worrell v. Henry, 219 F.3d 197 (10th Cir. 2000) supports a finding in
plaintiffs favor: as noted by the Worrell court, a plaintiff must show that a connection exists
between the constitutional deprivation and either the defendants personal participation, exercise
of control or direction, or failure to supervise. 219 F.3d at 1214, citing Meade v. Grubbs, 841
F.2d 1512, 1527 (10th Cir. 1988). This is what plaintiffs have alleged: the retaliation against the
plaintiffs took place because the defendants reviewed, adopted, applied and enforced the
unconstitutional cuts based on the Kansans content.
(The Relief)
G. The Declaratory Relief Sought by Plaintiffs is Appropriate (Part VIII of
defendants motion)
Defendants last point is limited to an argument regarding the defendants in their official
capacity. The Eleventh Amendment does not bar a federal court from ordering notice or
declaratory relief in a suit against the state if it is ancillary to a judgment awarding prospective
injunctive relief. See Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir.1995). The Johns court
was citing defendants own case, Green v. Mansour, 474 U.S. 64, 70-74, 371 (1985), in making
this ruling.
29

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 30 of 32

The Declaratory Judgment Act of 1934, 28 U.S.C. 2201, permits a federal court to
declare the rights of a party whether or not further relief is or could be sought, and we have held
that under this Act declaratory relief may be available even though an injunction is not. Steffel v.
Thompson, 415 U.S. 452, 462 (1974). Moreover, plaintiffs allege a continuing violation, not just
a past violation of their constitutional rights. Compare Green v. Mansour, supra.
Defendants do not raise any argument regarding the appropriateness of this relief agains
the defendants in their individual capacity.

H. Plaintiffs Seek Amendment on Any Points, If Necessary

Out of an abundance of caution, plaintiffs seek and reserve their right to amend any part
of their Complaint if the Court so directs. Defendants have not answered the Complaint and
plaintiffs have not had the opportunity to pursue discovery. A district court should not dismiss
claims with prejudice for failure to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief. Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991), quoting Conley v. Gibson, 355 U.S. 41, 45-46,
(1957); [I]f it is at all possible that the party against whom the dismissal is directed can correct
the defect in the pleading or state a claim for relief, the court should dismiss with leave to
amend. 6 C. Wright & A. Miller, Federal Practice & Procedure, 1483, at 587 (2nd ed. 1990).
See also Tate v. Farmland Industries, Inc., 268 F.3d 989, 997 (10th Cir. 2001)(imposing a
patently obvious standard for futility of amendment before allowing dismissals without
opportunity for amendment).

30

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 31 of 32

CONCLUSION
As they must, defendants assume all of these allegations as true for purposes of their
motion. As shown herein, a clear constitutional violation occurred. So if plaintiffs the student
editors and the publication are not the parties to seek relief for the constitutional violations,
defendants must provide the answer of who is entitled. Their motion is silent on this point.
The defendants had full knowledge of the constitutional violation and they had it in their
power to prevent the injury to plaintiffs. Even after the factual allegations were not denied in a
face-to-face meeting, defendants still chose to adopt and authorize the retaliatory cut to the
plaintiffs funding.
This Court should exercise its jurisdiction to provide plaintiffs with the relief sought
herein.
WHEREFORE, plaintiffs pray for denial of defendants motion and for such other and
further relief as sought herein and as this Court deems just and equitable.

DORAN LAW OFFICE

By: /s/ Patrick J. Doran
Patrick J. Doran
#13150
4324 Belleview, Suite 200
Kansas City, MO 64111
(816) 753-8700
Fax (816) 753-4324
pjdoran@doranlaw.net
ATTORNEY FOR PLAINTIFFS
31

Case 2:16-cv-02085-CM-GLR Document 5 Filed 04/08/16 Page 32 of 32

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the above and foregoing document with the
clerk of the court by using the CM/ECF system which will send a notice of electronic filing to
the following counsel of record, on April 8, 2016:

Michael C. Leitch
University of Kansas Associate General Counsel and
Special Assistant Attorney General
245 Strong Hall
1450 Jayhawk Blvd.
Lawrence, Kansas 66045
mleitch@ku.edu
/s/ Patrick J. Doran
Patrick J. Doran

32