This article appeared in The Huffington Post.
A ruling issued earlier this month by a federal district court in Georgia may be one of the most significant victories for students’ rights in recent years. The decision has already sent shockwaves through the higher education community, and the reverberations may be felt for a long time to come.
The facts of Barnes v. Zaccari are uniquely memorable. Former Valdosta State University student Hayden Barnes was expelled from Valdosta State University in 2007 because university president Ronald Zaccari claimed he posed a “clear and present danger” both to the campus and to Zaccari personally. What had Barnes done to produce such a dramatic response? He had publicly protested Zaccari’s decision to build a $30 million dollar parking garage, most notably by posting a collage he had created with Microsoft Paint on his Facebook account. For opposing the parking garage, Barnes found a note slipped under his dorm room door giving him 48 hours to leave campus.
After being kicked out of school, Barnes filed a federal civil rights lawsuit against Zaccari, VSU, and a number of administrators, for violating his rights to freedom of speech and due process.
In a decision handed down on September 3, the district court held Zaccari personally and financially liable for brazenly violating Barnes’ right to due process. The court also held the Board of Regents responsible for violating the contractual promises of due process the university made in its student handbook.
Those of you who read my columns will likely remember this case. I even hosted a video about it (and, yes, I was going for “memorable” with that jacket):
When my organization, the Foundation for Individual Rights in Education, first took this case public, I received a few incredulous responses: There had to be more to this case, right? It couldn’t be so simple; surely there were other facts that we were missing?
The skeptics were half right. There was more to the story–but it turns out the facts were even worse then we thought.
While reading the whole opinion is the best way to fully understand Barnes’ ordeal, I’ll briefly summarize some key facts that emerged during discovery.
First of all, internal e-mails show that it was indeed Barnes’ opposition to the parking garage that set President Zaccari on the path to expelling Barnes. Zaccari even called Barnes into an hour-long meeting with him to harangue Barnes about his opposition to the parking garage, asking Barnes, “Who do you think you are?” and stating that he “could not forgive” Barnes.
From a free speech perspective, calling a student into a meeting to berate him for his principled disagreement with university policy is surely bad enough, but the case only gets crazier from there.
Over the course of just a few weeks in the spring of 2007, Zaccari held meeting after meeting with his administration about what to do about Barnes, despite the fact that Zaccari was repeatedly told by his staff that Barnes was not a threat, that Barnes deserved due process if Zaccari planned to punish him, and that the president couldn’t just kick the student out school due to his political speech. According to the opinion, Zaccari even ordered staff to look “into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office.”
The VSU access office, by the way, is the university department for students with disabilities. Zaccari learned that Barnes had sought counseling for depression and anxiety, and he tried to use that as justification for ruling him a threat. He talked to both a campus counselor Barnes had seen and his psychologist but was again told, in no uncertain terms, that Barnes was simply not a threat to himself or anyone else. Indeed, for all the prying Zaccari did, it would be difficult to miss that Barnes was also a decorated emergency medical technician, a student of Buddhism, and a believer in non-violence.
Finally, Zaccari seems to have given up trying to convince anyone Barnes was a threat and instead announced that he would exercise his presidential authority to unilaterally “administratively withdraw”–or, in less nauseatingly euphemistic terms, expel–Barnes without a hearing or even prior notice, both of which are required by VSU policy.
In May of 2007, Barnes received an expulsion note slipped under his door, stating that he was a “clear and present danger to this campus.” Attached to the note, apparently by way of an explanation, was a collage Barnes had posted on Facebook protesting the parking garage. Picking up on Zaccari’s claim to Barnes that the parking garage would be part of his “legacy,” Barnes’ collage referred to the parking garage as the “The S.A.V.E.- Zaccari Memorial Parking Garage.” (S.A.V.E. is the name of a campus environmental group that Barnes felt dropped the ball by not vigorously opposing the garage.)
In numerous meetings, Zaccari was told by staff that this mere Facebook collage could not possibly be considered a threat, but Zaccari nonetheless decided to use it as justification for expelling Barnes.
I first became involved in this case back in October of 2007, a few months after Barnes had been expelled. Given that the facts were so ridiculous and horrible, and the violation of student rights so blazingly obvious, I felt sure that VSU, like most schools in this situation, would quickly back down after receiving a stern letter from FIRE.
Instead, after numerous press releases and articles shaming VSU, VSU did not budge. Therefore, we enlisted the help of renowned First Amendment lawyer Robert Corn-Revere of Davis Wright Tremaine in DC and Cary Wiggins of The Wiggins Law Group in Atlanta. Shortly after Corn-Revere and Wiggins filed suit on Barnes’ behalf in January 2008, the Board of Regents had a sudden change of heart, overturned the finding, and offered to readmit Barnes. Unsurprisingly, Barnes, who was at this point attending a different college run by sane people, declined the offer.
After the nearly inevitable ruling came down against him earlier this month, Zaccari issued a statement that attempted to spin as a positive outcome the fact he was being held personally responsible for violating a student’s constitutional rights. While my colleague Peter Bonilla does an excellent job taking this willful blindness to pieces on FIRE’s blog The Torch, one part of his statement demands particular scorn. In defending his actions against Barnes, Zaccari invokes the specter of the Virginia Tech massacre to justify his actions. Especially given that the facts show that everyone around Zaccari counseled him that Barnes was no threat at all, treating Virginia Tech like a carte blanche excuse to expel a student who didn’t like his parking garage is despicable.
As I have written before here on The Huffington Post, in the wake of that tragedy, too many campus administrators seemed to ask, ‘What Can The Virginia Tech Tragedy Do For Me?’, using the horror of that day to justify censorship of speech they simply did not like. While Colorado College is a close second for finding students guilty of “violence” for posting a flier that parodied a flier by a feminist group, Zaccari wins the award for most shameful invocation of the Virginia Tech tragedy to silence a student.
While Barnes v. Zaccari is a major victory for students’ rights, it is not a perfect opinion. Indeed, the court was dead wrong when it found that Zaccari had not “conspired” to violate Barnes’ free speech rights because no one he consulted with and intended to conspire with would agree with him about punishing Barnes. The judge relied on this fact to let slide those administrators who expressed their disagreement with Zaccari’s decision to expel Barnes.
While I think this is going pretty easy on public employees who were willing to violate medical confidentiality at the request of a university president, I can understand the judge’s desire to let those who expressed their disagreement with Barnes’ expulsion to dodge personal financial responsibility. But this logic makes absolutely no sense applied to Zaccari.
According to the court’s bizarre logic, Zaccari did not “conspire” to violate Barnes’ rights precisely because no one–on record, at least–agreed with his decision to kick Barnes out. But the fact that Zaccari actually succeeded in kicking Barnes out is crystal clear evidence someone worked with him, whether they liked his decision or not.
And even if Zaccari somehow acted completely alone (and I somehow doubt he penned, typed, and delivered the expulsion note all by himself), the fact remains that he kicked Barnes out of school for engaging in speech protected by the First Amendment. To let Zaccari off the hook for violating Barnes’ free speech rights is as mind-bending as it is wrong. Perhaps the court decided that somehow it was enough to find Zaccari personally liable for violating Barnes’ due process rights that there wasn’t any need to punish him further. It’s an odd logic, as the decision seems to take for granted that Barnes’ free speech rights were violated.
Nonetheless, the benefits for student rights in Barnes v. Zaccari far outweigh the problems in the decision. For one, the court found that the promises of due process contained in the VSU student handbook were contractually binding and that the Board of Regents bears responsibility for its failure to live up to its promises. This part of the decision is crucial. It tells schools that if they promise rights and fair procedures to their students, they cannot just turn around and abandon them when those procedures become inconvenient.
But most importantly, Barnes v. Zaccari serves as a warning to administrators that might violate the basic rights of their students that they can be held personally financially liable for doing so. As I have been explaining for years, public employees only enjoy “qualified” immunity from liability, not “absolute” immunity. That is, they cannot be held personally liable in a court of law for simply doing their job if they had no reason to know they were violating the Constitution. For example, if a police officer conducts a search of someone’s vehicle in a way that is later found to be unconstitutional, he cannot be held personally liable if he has no way to know the action would later be ruled unconstitutional. If, however, that same police officer, for example, prevented citizens from going to vote because of the color of their skin, he could not claim the protections of qualified immunity because there is no way for him to honestly claim he didn’t know that preventing citizens from voting on the basis of their race wasn’t constitutionally kosher.
Likewise, here a university president, acting under the authority given to him by the state of Georgia, kicked a student out without any due process for doing nothing more than expressing his opposition to a parking garage. Especially given the fact that he was actually told by legal counsel that this action violated the Constitution, Zaccari in no way deserved the protection of qualified immunity or the indemnification provided by the taxpayers of Georgia.
And why is this such an important victory for student rights? For decades now, universities have maintained policies and practices that flatly violate the constitutional rights of their students. Sometimes those violations come in the form of speech codes, like one that banned “offensive” speech on campus and was overturned just this summer. Other times, they come in the form of “free speech zones” that limit free speech to a tiny corner of campus, as at Southwestern College in California. And other times the violations are raw retaliation against students for criticizing the university, as in this case and the case of Andre Massena at SUNY Binghamton. And all this despite the fact that in each of these cases the law was clearly on the students’ side.
Each of these cases would have been much less likely to arise in the first place if university administrators knew they could face personal financial consequences for flouting clearly established law. After all, if there is no consequence for violating the rights of students, what is there to balance out the age-old temptation to silence your critics, to punish students who have incurred the wrath of the student body, or to simply stifle discussion about uncomfortable, difficult or merely inconvenient topics? Barnes v. Zaccari is a stark reminder that the rights of college students to free speech and some amount of due process are clearly protected, and that administrators at public universities violate them at their own peril. It is my hope that the decision in Barnes v. Zaccari will help rebalance the incentives on campus in favor of free speech and basic rights.
Indeed, the message has been getting out, as demonstrated by at least one commenter over at The Chronicle of Higher Education (subscription required) who seemed both panicked and horrified at the decision. Do not fear, college administrators! You only have to worry if you plan to trample on the basic rights of your students. And, if that is asking too much, well, I don’t have a great deal of sympathy for you.
Schools: Valdosta State University