In my previous post on the reply brief filed by former Valdosta State University student Hayden Barnes’ attorneys in support of their motion for summary judgment, I examined the brief’s discussion of the violation of Hayden’s First Amendment rights. While there is much more to discuss as well, this post discusses the brief’s argument regarding why each defendant should be denied qualified immunity and found personally liable for their treatment of Hayden. The brief argues:
Apart from Zaccari, other defendants offer essentially a Nuremberg defense—that they were "just following orders." However, each of the defendants participated in the deliberations that led to Barnes’ withdrawal and each could have taken steps within the range of their responsibilities to change the course of events. It would be one thing if these defendants were asserting qualified immunity based on a good faith belief that they were supporting appropriate and lawful actions by the University President. But that is not what happened, since each of the defendants now claims that they knew Zaccari’s actions were wrong and probably unconstitutional. In this situation, where the defendants "knew or should have known that their [failure to act was] violating the plaintiffs’ constitutional rights, . . . [they may not] hide behind the cloak of institutional loyalty." Forsyth v. Kleindienst, 599 F.2d 1203, 1217 (3d Cir. 1979); Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981).
Nor may the defendants claim that they cannot be held responsible because theirs were not supervisory positions. The law is clear that liability is not confined only to supervisors whose failure to act results in constitutional injury.
Here, each of the defendants was well aware that Barnes was being stripped of his legal rights as it was happening, and each could have taken steps within their respective spheres of responsibility to prevent it. Instead of doing so, however, each in his or her own way helped facilitate the "administrative withdrawal." Their actions stand in stark contrast to those of Dr. Victor Morgan, the Director of VSU’s Counseling Center, who originally was among the defendants. Barnes voluntarily dismissed claims against Dr. Morgan, after discovery revealed that Morgan directly challenged Zaccari’s story about there being a threat, and, by standing up to the President, blocked Zaccari’s ability to misuse the mental health withdrawal policy to remove Barnes. Realizing that Zaccari was looking for a way to remove Barnes without any evidence of a threat, Dr. Morgan said to the President, "Dr. Zaccari, we cannot remove Hayden from school based on a mental health withdrawal. In my opinion, he’s complying with everything we’re asking him to do." Dr. Morgan explained in detail why Barnes’ advocacy did not represent a threat, and told Zaccari that the use of the word "memorial" on Barnes’ Facebook.com collage was nothing more than "Hayden . . . saying that you’re going to go down in history . . . . This is going to be a building with your name on it." As with the other defendants, Zaccari’s ultimate decision was above Dr. Morgan’s pay grade. But unlike the others, Dr. Morgan did the right thing. [Several citations removed.]
This argument is damning for the remaining defendants. Each has acknowledged having known that Zaccari’s demands were unreasonable. Only one—Dr. Morgan, a former defendant after Hayden voluntarily dropped him from the complaint—stood up to Zaccari and told him that what Zaccari was doing and was asking others to do was wrong. The law makes clear that "just following orders" won’t cut it when it comes to knowingly and willingly violating constitutional rights, as each defendant did here.
The state of the law when it comes to free speech on public campuses is and has long been crystal clear: the First Amendment applies in full. Accordingly, administrators should no longer be able to claim that depriving a student of his or her First Amendment rights is something a "reasonable" administrator would have done, or that the law on the question is sufficiently murky to allow them to invoke qualified immunity.
If the VSU administrators named as defendants in Hayden’s case lose qualified immunity, it will send a vitally needed message to our nation’s public college and university administrators: knowingly violate someone’s rights, and you may be held personally responsible in court, without your school to shield you from paying awarded damages and attorney’s fees. This is as it should be: Taxpayers should not have to pay for the consequences of the actions of scofflaws like President Zaccari and their personal vendettas.
As always, FIRE will keep you updated on this important case.