FIRE’s National Mailing Puts Public Colleges and Universities on Notice

By on January 15, 2009

Over the past several months, FIRE has sent letters to 266 public colleges and universities to notify administrators that their maintenance of unconstitutional speech policies may subject them to personal liability. As previously announced in September, following the victory for free speech in the United States Court of Appeals for the Third Circuit’s ruling in DeJohn v. Temple, FIRE sent letters notifying administrators at public universities and colleges in the Third Circuit (Pennsylvania, New Jersey, and Delaware) that they were legally bound by the DeJohn ruling, which struck down Temple University’s former speech code as unconstitutional.

In late December, FIRE followed up this initiative by sending additional letters via certified mail to every public college and university rated a "red light" or "yellow light" institution in FIRE’s database, Spotlight: The Campus Freedom Resource. Pointing out that Temple’s former speech code "has now become the latest in a long line of speech codes to fail in court," the letter warns administrators that "any public university policy prohibiting constitutionally protected expression is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which university administrators can be sued in their individual capacities." Further, FIRE’s letter makes clear that because "the law is so clearly established with regard to unconstitutional speech codes, claims of immunity from liability on the part of individual administrators will likely fail." A complete list of schools receiving a letter from FIRE is available here.

FIRE’s national warning was the subject of an article today in The Chronicle of Higher Education (subscription required). In response to FIRE’s effort, the article quoted Ada Meloy, general counsel for the American Council on Education (ACE), who stated that the ACE believed that "the majority of campus policies are within the bounds of the law, and that the campuses do their best to see that a broad range of views and opinions can be heard, and that the nuances of what is acceptable speech and what is not are not always easy to define."

Unfortunately, we must disagree with Meloy on this crucial point. As demonstrated by our annual speech code survey, Spotlight on Speech Codes 2009: The State of Free Speech on Our Nation’s Campuses, released last month, approximately 74 percent of the 364 schools surveyed maintain policies that clearly restrict speech which, outside the borders of campus, is protected by the First Amendment to the U.S. Constitution. And the problem is even worse at public colleges and universities, where 77 percent of the schools surveyed explicitly prohibit protected speech despite being legally bound to uphold the First Amendment on campus.

By sending out our warning letter via certified mail, FIRE has now made it all but impossible for policymakers at public colleges and universities to argue that they were either (a) ignorant of their obligations to uphold the First Amendment on campus or (b) ignorant of the fact that their present policies encroach upon First Amendment freedoms. The specific policies at issue for each school are freely available in our Spotlight database. Were any of these public institutions to be sued in court for violating the First Amendment rights of their students or faculty members, this development is of vital importance, because as our letter states:

State officials and employees are offered qualified immunity only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This means that administrators may be held personally liable for continuing to maintain unconstitutional speech codes in violation of students’ First Amendment rights.

This isn’t some hypothetical legal concern, either. In fact, we’ve seen the impact of this established legal principle demonstrated recently in former Valdosta State University student Hayden Barnes’ civil rights suit against ex-VSU President Ronald Zaccari, where a federal district court judge denied Zaccari and other VSU administrators motion to dismiss on the basis of a qualified immunity defense. As I wrote this past November:

[W]hile the court dismissed Barnes’ first two counts, it upheld Barnes’ third and fourth counts, which alleged that the defendants could be held liable in their individual capacities for violating Barnes’ constitutional rights under § 1983. In other words, the State of Georgia (and the defendants acting in their official capacity) may enjoy immunity, but Zaccari and his fellow administrators, when considered in their personal capacity, do not. That’s because the law states that Eleventh Amendment immunity is only available for state officials "as long as ‘their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.’" (Citations omitted.) Because Zaccari and company so obviously violated Barnes’ right to free expression, and because a reasonable university official would have known that the acts in question violated that right, the court held that "the defendants were on notice and had fair warning that retaliating against [Barnes] for his speech and expression against the proposed construction of the parking garage would violate his constitutional rights. Therefore, the defendants are not entitled to qualified immunity as to the retaliation claim."

Other examples of public college administrators being denied the use of qualified immunity defenses are readily found in the caselaw. For one, check out Husain v. Springer, 494 F.3d 108 (2d Cir. 2007), in which the Second Circuit held that the president of the College of Staten Island was not entitled to summary judgment on her qualified immunity defense in a First Amendment civil rights suit brought by students because her conduct "violated clearly established law." (Emphasis mine.)

The basic point is that for too long, our nation’s public colleges and universities have completely ignored the fact that as government institutions, they are legally required to be in full compliance with the First Amendment. That these public institutions have continued to maintain unconstitutional restrictions on student speechdespite over twenty years of federal caselaw striking down speech codes!is an affront to our legal system, a black mark on our public system of education, and an embarrassment for our nation. As FIRE supporters well know, our mission is to ensure fundamental constitutional freedoms for all students and faculty on all campuses. We think our latest letter is a step in the right direction, and we certainly look forward to working with schools to reform illiberal policies on campuses across the country.