Late last month, a federal district court in Georgia issued a disappointing ruling in Uzuegbunam v. Preczewski, a First Amendment lawsuit challenging the constitutionality of a free speech zone policy at Georgia Gwinnett College (GGC). Because that policy has since been amended, and one of the students graduated while the lawsuit was pending, the court dismissed the First Amendment claims as moot.
In February 2017, students Chike Uzuegbunam and Joseph Bradford filed an amended complaint against GGC administrators alleging that the public institution’s policies and practices violated their expressive rights. Specifically, the suit alleged that GGC administrators stopped Uzuegbunam from distributing religious literature in a public outdoor area on campus “because he was outside of the two tiny speech zones and because he had not first obtained a permit.” Further, the suit contended that even after Uzuegbunam had secured a permit for speaking in one of the free speech zones, GGC administrators prevented him from doing so “because his speech had generated complaints” and thus constituted “disorderly conduct” under GGC policy. The students were represented by attorneys with the Alliance Defending Freedom.
The students’ suit attracted the attention of the U.S. Department of Justice. Last September, the Department filed a Statement of Interest with the district court arguing that GGC’s policy “limited public expression on campus in at least three principal ways”: (1) by designating just two free speech zones; (2) by imposing strict restrictions on student use of those zones; and (3) by prohibiting “disorderly conduct,” broadly defined as “behavior which disturbs the peace and/or comfort of person(s).”
But in an order issued May 25, the U.S. District Court for the Northern District of Georgia dismissed the case as moot, granting motions filed by the defendants.
The court based its decision on two grounds. First, the court noted that Uzuegbunam graduated from GGC in August 2017. As such, “there is no reasonable expectation that he will be subjected to the same alleged injury again, such that the Court could grant him declaratory or injunctive relief,” wrote U.S. District Judge Eleanor L. Ross, “and as a result, his claims for declaratory and injunctive relief are moot.”
The court next turned to Bradford, Uzuegbunam’s co-plaintiff, who had alleged in the amended complaint that GGC’s policies, and its enforcement of them against Uzuegbunam, demonstrated that he, too, risked similar treatment by GGC administrators. Bradford, unlike Uzuegbunam, has not yet graduated, so his First Amendment rights on campus would be protected if the court enjoined the policies or practices. However, GGC revised its speech codes in February 2017, ten weeks after the the lawsuit was filed. Accordingly, the court examined “whether the totality of the circumstances indicates that there is a reasonable expectation that GGC will reenact or reinforce” its earlier policies.
In reaching its conclusion that GGC “will not reenact these Prior Policies,” the court examined several aspects of the college’s policy revision. First, the court characterized the timing of the policy revision as “a quick change,” concluding that the school’s responsiveness weighed in defendants’ favor on the question of the likelihood it would revert to the old policies. The court next reviewed the substance of GGC’s changes to its policies, finding that the core components of the lawsuit’s complaints about the school’s speech codes had been obviated by the revisions. Continuing, the court held that the policy change was “unambiguous,” taking into consideration GGC’s assurances that the changes were permanent, their public availability, the substantive impact of the revisions, the lack of evidence GGC has reverted to its recently-abandoned policies, and the fact that GGC has led training sessions for its employees on implementation of the new policies. In conclusion, the court holds that GGC “has unambiguously terminated the Prior Policies and there is no reasonable basis to expect that it will return to them.”
On balance, much of this result is a good thing: the students, in standing up for their free speech rights, have secured a change in policy that will inure to the benefit of all GGC students. That change only came about because of the lawsuit: GGC ignored a letter from the students’ lawyers at the Alliance Defending Freedom raising concerns about these policies some years beforehand. GGC had ample opportunity to change its policies and chose not to do so in advance of litigation.
The court’s rationale, however, rewards GGC for its willful blindness. The court credits GGC for a quick change in policy following the onset of litigation, and rejects the argument that the warning letter — sent in 2013 — weighs against the sincerity of the change. The court rejects this, saying that “under Plaintiffs’ theory, anytime counsel sends a demand letter suggesting that policies are unconstitutional, the recipient would be required to change its policies immediately.”
Whether a quick change in policy makes it unlikely that the old policy will later be resuscitated — after the lawsuit is dismissed — is debatable. It’s certainly not unheard of. For example, a community college in California rescinded its free speech zone policy a month after being sued, only to slowly institute a similar policy after public attention faded.
Discounting the effect of letters warning of unconstitutional policies is likely to lead to more, not less litigation — which universities can then avoid by changing their policies. While the mere receipt of a such a letter should not be conclusive, irrebuttable evidence that officials are eager to escape a lawsuit so they can resume infringing on civil rights, it should count for something. Officials with a demonstrable record of knowingly enforcing unconstitutional policies should face a high hurdle in demonstrating that they’re not recidivists. They have, as the Supreme Court has observed, a “heavy” burden — a burden the Third Circuit has similarly described as “formidable” — to establish that a case is mooted, and it should be significantly greater when it’s officials’ own action that would deprive a court of jurisdiction.
Further, reducing guidance letters to a nullity increases the burden on students, requiring them to file a lawsuit to secure rights already guaranteed to them under the First Amendment. Students are less likely to know the nuances of applying the First Amendment to campus regulations and, more importantly, lack the resources available to government institutions. Decisions that defer to government actors who willfully ignore their obligations undoubtedly inure to the detriment of students.