Four Years Later, UCSD Settles with The Koala


Issue of the Koala.
Image courtesy of The Koala's Facebook page.

Written by:

UCSD and The Koala have finally settled their lawsuit in September 2020, four years after The Koala filed the lawsuit against the university on the grounds of free speech infringement. UCSD has paid approximately $800,000 in legal fees and reimbursements to settle the suit; it is now at The Koala’s discretion as to how they want to proceed as a student organization eligible for funding.

Founded in 1982, The Koala was a satirical student-run newspaper on campus that prided themselves on a “lack of censorship”. Many students have criticized their takes that often included racism, misogyny, and generally shock humor. Articles mocking the Compton Cookout, Muslims, jokes centered around school shootings, and rape have all been published by The Koala in the past.

Two days after The Koala published the following article in 2015, which included racial slurs, the Associated Students of UCSD voted to defund all student media. In response, The Koala sued the university and Chancellor Pradeep Khosla, claiming that they were censoring students.

David Loy, legal director of the San Diego ACLU Chapter and co-counsel for The Koala, told The Triton that upon joining the case they “first sent a letter to the university, and then when negotiations were unsuccessful, we filed a suit in 2016.”

The Koala filed a case against the university in 2016 but in March 2017, Judge Jeffrey T. Miller dismissed the lawsuit. This dismissal was argued on the grounds that the university creates a “limited public forum” under which student media qualifies. As a result, expressions of speech may be limited at the discretion of the body that created the forum.

An amicus curiae brief was jointly filed by FIRE, a non-profit group for free speech rights on college campuses, and the Cato Institute, a libertarian think tank, in the Ninth Circuit Court of Appeals in support of overturning their previous decision. Since these two parties were not directly involved in the lawsuit, they are able to engage in a way that supports one side. This brief supported The Koala’s legal team’s efforts in appealing the 2017 dismissal.

Should the original ruling have stood, it would have changed precedent for student media censorship in general, as it upheld the notion of a limited public forum and granted universities powers of restriction.

Loy comments that “it’s clear that the actions of the administration and student government were motivated by the content of what The Koala published and that is a classic violation of the first amendment.”

In July 2019, the Ninth Circuit Court of Appeals overturned the Miller dismissal, finding the article published by The Koala was protected speech, and could therefore be argued adequately under the Free Press clause that The Koala was singled out. It was concluded that by defunding student media, the university had acted with discriminatory intent.

Loy states that this decision sets a legal precedent for student governments and campus administrators at public universities nationwide regarding censorship and freedom of speech. This ruling demonstrates that universities cannot get away with inflicting collateral damage and utilizing other methods to subvert the first amendment.

The lawsuit was finally settled in September 2020, which confirmed certain protections against censorship that lacked precedent. In the settlement, both parties agreed that a joint motion to dismiss with prejudice would be filed. This means that The Koala cannot take action over this, via another suit, ever again.

The settlement required a sum of $12,500 be paid to The Koala by the university. It also called for UCSD to pay approximately $150,000 to cover The Koala’s attorney fees. Additionally, UCSD spent $662,317.86 from May 24, 2016 to October 6, 2020 for legal staff that were on retainer for this case.

In addition to the university’s legal counsel, two AS representatives were present during the final settlement. This included the ASUCSD President and the Financial Controller.

In conversation with current ASUCSD President, Kimberly Giangtran, about the settlement, she stated that “the proposed agreement was presented to and approved by the AS Senate. The monetary impact of this settlement came from AS Mandate Reserves. This settlement did not utilize student fees collected in the 2020-2021 year.”

Though the Koala have published some articles over the duration of the lawsuit, their website is currently down and access to the archives is unavailable. Koala President Alyssa Kress, listed on the lawsuit, did not respond to questions for comment by the time of publication. The Koala has re-registered and uploaded a 2021 updated constitution found here.

Sahana Narayan is the assistant news editor for The Triton. You can follow her here.