FIRE has been warning college presidents and administrators for some time that when they violate the expressive rights and due process rights of students at public universities, they do more than defy the dictates of the Constitution (and, for that matter, abandon their moral duties as leaders of our nation’s institutions of higher education). We have warned that administrators who violate students’ First Amendment and due process rights precariously ignore, at their own risk, controlling Supreme Court decisions and other longstanding federal court precedents on these matters.
That’s because administrators at public colleges and universities, as public officials performing discretionary duties under color of state law, can be sued in their individual capacities by students under 42 U.S.C. § 1983 for violating these and other rights. Section 1983 is a federal civil rights statute that allows individuals who have been deprived of a federal statutory or constitutional right to pursue monetary damages against the responsible government official or officials. Under Section 1983, public officials are entitled to a “qualified immunity” against personal liability only if their actions do not violate “clearly established” law of which a reasonable person in the official’s position would be aware. See Harlow v. Fitzgerald, 457 U.S. 800 (1982).
As we’ve argued before, the law is “clearly established” when it comes to students’ expressive rights at public colleges and universities, and particularly so when it comes to the legality of speech codes. Over approximately the past two decades, courts have struck down speech codes in case after case to comprise a body of law that is remarkably uniform. (See FIRE’s legal scholarship for much more on these cases and the clear implications they have for university administrators’ qualified immunity.) Given the weight of the authority against the continued implementation of speech codes, it is highly dubious for administrators to argue that the law is not clearly established in this area. In fact, FIRE even carried out a national mailing campaign, in the aftermath of the Third Circuit Court of Appeals’ precedential speech code decision in 2008 in DeJohn v. Temple University, warning university officials that they place themselves on the path to personal liability when they ignore clearly established law with regard to speech codes. Yet, universities by and large continue to violate their students’ rights when it comes to both freedom of expression and due process.
So, you can imagine our elation with the recent decision in Hayden Barnes’ suit against Valdosta State University (VSU), former VSU president Ronald Zaccari, and other university officials. Barnes’ ordeal, as regular Torch readers know, began in the fall of 2007, when he was “administratively withdrawn” from VSU by Zaccari—via a note slipped under his dormitory room door, with nary a shred of due process—after he had posted an online collage criticizing and making fun of the university’s plans to build two parking decks on campus using mandatory student fee money. Zaccari labeled Barnes a “clear and present danger” to both Zaccari himself and to the campus as a whole, and promptly expelled him. The resulting lawsuit, which was initiated in January 2008, has been a boon for student rights.
As we covered in our press release earlier this week, the U.S. District Court for the Northern District of Georgia found that because Zaccari expelled Barnes without notice or a hearing, Zaccari violated Barnes’ constitutional right to due process as well as the contract created between VSU and Barnes by the student handbook.
Just as important, both for the bigger picture and perhaps for Barnes himself, the court ruled that because Zaccari ignored clearly established law in punishing Barnes, Zaccari did not enjoy qualified immunity and is therefore personally liable for damages, in an amount to be determined in upcoming weeks. This is a monumental ruling for student rights on campus, as well as a loud warning to administrators that they violate those rights at their own financial risk.
On the qualified immunity defense asserted by Zaccari, the court stated:
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.” Dixon v. Alabama State Board of Education, 294 F.2d at 151.
The court added:
Moreover, the court finds Zaccari’s assertion that he relied upon the advice of [VSU attorney Laverne] Gaskins and [former Vice Chancellor for Legal Affairs Elizabeth] 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.
[Internal citation omitted.]
Again, this is powerful, powerful medicine. By holding that Zaccari lost his qualified immunity by ignoring clearly established law of which a reasonable official in his position would be aware (and of which his legal counsel in fact warned him), the court has sent an unmistakable message to university officials around the country: Fly right, or pay up.
Zaccari now stands to lose money out of his own pocket for his unconstitutional, and quite foolish, actions against Barnes. The exact amount of the damages payment will be determined subsequently by the court—attorneys for both sides have been asked to submit briefs on the question within the next few weeks—but given the flagrant nature of the due process violation here as well as the court’s obvious distaste for Zaccari’s handling of the matter, I would be surprised if Zaccari doesn’t ultimately have to pony up a considerable amount of money. So while last week’s ruling is a tremendous victory for student rights, I expect that the ruling to come on damages will only further hammer the message home.
I hope that university officials and their legal counsels truly examine this decision for what it is—the court’s refusal to afford deference to a university official’s actions in the face of flagrant violation of well established law—and what it represents moving forward. With respect to due process rights, a university simply cannot do something as preposterous as deny a student the basic requirements of notice and a hearing, and if that weren’t clear enough already, this decision makes it so, and adds the element of personal liability for damages.
With respect to students’ freedom of speech, the qualified immunity ruling is a valuable lesson even though it concerns due process in the immediate case. If courts, like this one, will not afford deference for violations of well established law regarding due process rights, what makes anyone think they will do so for violations of well established law regarding free speech? If anything, the prospect for personal liability in the latter scenario is greater, particularly when speech codes are involved. Again, courts have been uniformly invalidating speech codes on constitutional grounds for over two decades now, making the law on speech codes even more clearly established than the law on due process for students. It is indeed difficult to find any area of the law in which court rulings have been as consistent as in the realm of campus speech codes. University officials expecting judicial deference under these circumstances are truly misled. Consider, for instance, the Third Circuit’s recent decision in McCauley v. University of the Virgin Islands, in which the federal appellate court invalidated several university policies infringing on student expression and handed down its second decision against speech codes in as many years (DeJohn in 2008 was the other). Like DeJohn, McCauley is a clear statement against the legal tenability of speech codes on public university campuses. If that doesn’t get the point across, I’m not sure what does.
As The Washington Times said in the aftermath of DeJohn, “the game is up.” DeJohn, McCauley, and the two decades of court rulings that came before them (and hopefully the cases to follow) make clear that speech codes are indefensible at public colleges and universities. Last week’s ruling in Barnes’ suit against VSU, meanwhile, confirmed that university officials are not entitled to any special deference when violating clearly established law regarding student rights. Add it all up, and the writing is on the wall. Administrators, please get rid of your institution’s speech codes, or else do not expect qualified immunity to bail you out.