Talk may be cheap, but silencing speech can be quite expensive — a lesson administrators at Iowa State University are quickly learning from one of FIRE’s Stand Up For Speech Litigation Project lawsuits.
In August, the United States Court of Appeals for the Eighth Circuit denied ISU’s petition asking for a rehearing of the court’s two previous decisions in Gerlich v. Leath, which held that ISU violated the First Amendment rights of its student chapter of the National Organization for the Reform of Marijuana Laws by discriminating against the group on the basis of its viewpoint — including denying the group the ability to use the school’s logo on its T-shirts in response to political pressure. A federal district court had reached the same conclusion in January 2016. Notably, the Eighth Circuit also held that ISU administrators had violated clearly established constitutional rights, and therefore were not entitled to qualified immunity — rendering them liable for damages.
Now, as part of a settlement agreement, ISU has agreed to accept the injunction imposed by the trial court, and to pay $343,260 in damages and fees to the plaintiffs and their attorneys. But ISU is not done paying for its transgressions yet. The settlement agreement only covers the costs and attorneys’ fees for ISU’s repeated appeals of the courts’ determinations that it violated its students’ First Amendment rights. The case now returns to the United States District Court for the Southern District of Iowa for a determination of the costs and attorneys’ fees ISU must pay for the proceedings at the trial court level.
The prospect of administrators being held liable for violating constitutional rights and also being responsible for covering a plaintiff’s legal fees is a crucial tool in preventing such violations in the first place. Without that threat, student rights would be in grave danger as administrators would undoubtedly find it easier to beg for consequence-free forgiveness in court rather than refrain from violating the Constitution. This is precisely why it is dangerous when courts grant undue immunity to administrators rather than expecting them to carefully consider whether what they are doing is lawful. As I have noted previously, the only thing that a public university hates more than a court ruling against it is a court order to pay for it. And if there is anyone who should hate it even more, it’s the taxpayers whose money ultimately funds that university.
Taxpayers who would rather see their money used for educational purposes than defending constitutional violations should speak up and demand that administrators respect the First Amendment. As always, FIRE will continue to pursue and hold accountable those administrators and institutions that violate the rights of their students and faculty members.