Back in September, we rejoiced at the news that former Valdosta State University (VSU) student Hayden Barnes had won a compelling victory in federal court in his lawsuit against former VSU president Ronald Zaccari and the Board of Regents of the University System of Georgia. Barnes’ case, which FIRE has been involved in since its genesis in 2007, is near and dear to many hearts at FIRE. It is a sterling example of what can go wrong in the often speech-restrictive environment that is higher education, and of the lengths to which America’s colleges will go to stifle student expression that members of the university administration find disquieting or unwanted.
Given the shocking manner in which Barnes was treated by Zaccari and VSU, as well as the school’s failure to undo the harm it caused to his ability to pursue an education, it came as no surprise to me that he chose to litigate. It likewise came as no surprise that the federal district court found many of his claims to be meritorious, and in particular held Zaccari personally liable for denying Barnes his basic rights. After all, if the violation of Barnes’ rights isn’t ripe for recovery of damages, I don’t know what case would be.
Now that Barnes’ case is on appeal before the Eleventh Circuit Court of Appeals, it will bear close observation in 2011, and perhaps beyond. The district court’s ruling, if upheld by the appellate court, will set a major precedent in defense of student rights on campus. Indeed, FIRE will be submitting an amicus (friend-of-the-court) brief before the Eleventh Circuit in January, positing our reasons why the court should rule for Barnes. The case is truly a vital one.
But let’s start at the very beginning of Barnes’ ordeal. Many Torch readers are likely familiar with the basic facts of the case, in which Barnes was expelled from Valdosta State for peacefully protesting Zaccari’s plan to spend $30 million of student fee money to construct two parking garages on campus. Opposing this expenditure of money on environmental grounds and suggesting what he saw as environmentally friendly alternatives, Barnes posted flyers on campus and sent e-mails to Zaccari, student and faculty governing bodies, and the Board of Regents. He also wrote a letter to the editor of VSU student newspaper expressing his concerns, and wrote to Zaccari personally to request an exemption from the mandatory student fee used to fund the project.
So far, all well and good, right? Just good, old-fashioned environmental activism and peaceful protesting, or so any reasonable person would think. However, after Barnes posted a collage of pictures on his Facebook page making fun of Zaccari and his pet project, Zaccari had Barnes "administratively withdrawn" from the university—via a note slipped under his dorm room door, no less! Zaccari claimed that Barnes represented a "clear and present danger" to Zaccari personally and to the VSU campus as a whole, despite a complete lack of evidence to back up this assertion. Appallingly, Barnes was never given notice of any charges against him, nor a hearing to defend his name, before the university took this drastic course of action. Instead, he found himself expelled from the university he called home for seemingly no good reason.
Following his expulsion, Barnes filed suit in January 2008 in cooperation with First Amendment attorney and FIRE Legal Network member Robert Corn-Revere. Barnes rightly pursued claims grounded on both his free speech rights and his due process rights.
In September of this year, the federal district court vindicated Barnes in a major way, ruling that because Zaccari expelled Barnes without notice or a hearing, he had violated Barnes’ constitutional right to due process, as well as the contract created between VSU and Barnes by the student handbook. With regard to the latter, the Board of Regents is on the hook for Barnes’ contractual claim, and it will have to defend itself again on appeal as to whether the deprivation of notice and a hearing constitutes a violation of VSU’s express terms of enrollment as laid out in its student handbook. The case does not look good for the Board on this issue.
Even more important from FIRE’s perspective is the ruling against Zaccari in his personal capacity. The court held:
The undisputed facts in this case show that prior to Zaccari’s withdrawal decision, Barnes did not (a) receive any notice of the allegations and charges against him or (b) have an opportunity to respond to those allegations and charges in some sort of hearing. Further, the undisputed facts show that Zaccari was the sole decision-maker in the withdrawal decision and, therefore, caused Barnes to be deprived of his rights to notice and a hearing or opportunity to respond. [Citation omitted.]
In detail that is worth reading in full in the opinion, the court found that Zaccari had essentially acted alone in depriving Barnes of basic due process, and that he had ignored the advice of his general counsel:
The court is unpersuaded by Zaccari’s argument that he is entitled to qualified immunity because he "sought out legal advice" from Gaskins and Neely and relied on their advice. The law is clearly established in the Eleventh Circuit that "due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct." … Moreover, the court finds Zaccari’s assertion that he relied upon the advice of Gaskins and Neely disingenuous. The undisputed facts show that Zaccari ignored the lawyers’ warnings that withdrawing Barnes would require due process in executing his administrative withdrawal of Barnes. The court declines to accept Zaccari’s argument that because he sought legal advice from Gaskins and Neely, both of whom advised against the President’s withdrawal of Barnes, Zaccari is still entitled to qualified immunity even though he took action contrary to the advice. [Citations omitted.]
Based on these findings, the court denied Zaccari the defense of qualified immunity, a critical blow against his ability to defend himself in this lawsuit. The legal doctrine of qualified immunity shields government officials from personal liability for monetary damages for violating constitutional rights if their actions do not violate "clearly established law" of which a reasonable person in their position would have known. FIRE has warned public university administrators time and again that depriving students of their most basic rights, such as the right to freedom of speech or due process, is a violation of "clearly established law" for purposes of qualified immunity, and that they should expect to pay monetary damages out of their own pockets if they are caught doing so. (For more on the doctrine of qualified immunity and how it pertains to public university students’ basic individual rights on campus, see FIRE’s legal scholarship on the issue.)
The district court’s ruling in Barnes’ suit was therefore a cause for celebration to us at FIRE. While we have long maintained that the law is clearly established with respect to students’ free speech and due process rights on public university campuses, the ruling provides even more validation for our arguments. In fact, in light of this decision and other encouraging legal developments from the past year, FIRE sent out a certified mailing just this week to university presidents and general counsels at nearly 300 public institutions nationwide warning them that they place themselves in personal financial peril by violating students’ well established rights. Our mailing is our latest salvo in the fight to convince administrators to remove unconstitutional speech codes from the university setting and respect students’ freedom of expression.
With the case now on appeal before the Eleventh Circuit, Barnes’ lawsuit heads into 2011 with matters still to be resolved. Our amicus brief, to be filed in January, will attempt to convince the appellate court to uphold the lower court’s qualified immunity ruling, paving the way for Barnes to collect damages directly from Zaccari. The decision ultimately rendered by the Eleventh Circuit will be an important landmark for students’ rights on campus and their ability to vindicate those rights when they are violated. FIRE will be following the case closely in 2011, and we hope you will be too.