A Big Victory in Georgia Points the Way to Ending Abuses of Freedom of Speech on Campus

By July 23, 2015

By Greg Lukianoff at The Huffington Post

Today marks the official end of an eight-year legal odyssey for one student who was kicked out of his college for clearly protected speech back in 2007. While this shameful incident at a college in southern Georgia could have easily ended in obscurity, the hard-won triumph in this case may point the way to preventing the abuse of student free speech rights once and for all.

Valdosta State University (VSU) has agreed to pay $900,000 to finally settle the case of Hayden Barnes, a student and environmentalist whose public opposition to the construction of a campus parking garage angered the then-president of the university, Ronald Zaccari. What Hayden didn’t know was just how badly Zaccari wanted the parking garage–so badly that Zaccari embarked on a surreal campaign to find a reason to expel Hayden. Zaccari found his opportunity in a Facebook collage Hayden created and posted, faithfully reconstructed below. (You can see the original here.)

As you can see, the collage included pictures of Zaccari, a parking deck, and the caption “S.A.V.E. – Zaccari Memorial Parking Garage.” The caption was meant as a sarcastic reference to concerns Zaccari had expressed about the garage being part of his “legacy” as president. Zaccari saw an opportunity and pounced, calling the collage a “threatening document” and expelling Hayden on the grounds that he was a “clear and present danger” to both Zaccari and the entire VSU campus.

My organization, the Foundation for Individual Rights in Education (FIRE), and I have covered this epic case since we first found out about it in 2007. Some of myearliest pieces for The Huffington Post concern the case, and I even open my 2012 book about abuses of free speech on campus, Unlearning Liberty, with an explanation of Hayden’s shocking story.

What was strange about the case lasting so long was that Hayden won at virtually every level of the litigation. But different courts managed to, at least somewhat, let Zaccari off the hook. As I explained back in 2010, the same judge who found that Zaccari had clearly violated Hayden’s due process rights so badly that he could be held personally liable also somehow managed to find that there was no First Amendment violation because Zaccari had supposedly acted alone, and therefore there was no “conspiracy” to violate the First Amendment. This strange argument was finally put to rest this past January when the circuit court reinstated Hayden Barnes’s First Amendment claims. The circuit court also threw out a different district judge’s bizarre decision to make both sides, even the winning side, pay for the attorney fees of the case.

This ruling set the stage for a final court battle in which Zaccari would ultimately have to answer the heart of the claims against him–that he had unconstitutionally retaliated against Hayden for his peaceful political protest–and would have to pay the plaintiff’s attorney’s fees to boot. With all signs pointing to a major loss in court, the university finally threw in the towel.

I am thrilled for Hayden and proud of the legal team at Davis Wright Tremaine(DWT), especially lead attorney and DWT partner Robert Corn-Revere, for their tenacious work. To give you some idea of how long this case has been in the works, since his expulsion in May 2007, Hayden has graduated from another college, attended law school (inspired by his own legal travails), married his girlfriend from his Valdosta days, and is now the doting dad of an adorable little girl.

To illustrate even further how long this case has taken, check out the video below that we made about the case back in 2008. The video quality makes it look like it was shot in the 1970s, and I look like I’m about 14 years old (and yes, I still have that jacket):

But the Barnes case is bigger than a David versus Goliath story worthy of its own inspirational Hollywood movie. (Hint, hint. I would like to be played by Daniel Craig or Idris Elba.) It’s bigger than a single legal victory. It points the way to how we can stop university administrators from abusing their power in the future.

Understanding “Qualified Immunity” and Why it is the Key to Protecting Rights on Campus

The Hayden Barnes case is exceptional in many ways, not the least of which is that the district court found that President Zaccari could not take advantage of a defense known as “qualified immunity” and was therefore personally liable for violating Hayden Barnes’s constitutional rights.

Qualified immunity is easier to understand than it may sound. Simply put, if a public official uses his or her official power to violate a citizen’s constitutional rights, he or she only enjoys a “qualified” kind of immunity from personal liability. It is “qualified” in the sense that if the administrator knew or should have known that he or she was violating an individual’s clearly established constitutional right, he or she may be held personally liable for damages inflicted.

This makes a great deal of sense when you apply it to a real world scenario. For example, if a police officer–let us dub him Officer Krupke–conducts a search that he reasonably believes is constitutional, but then a subsequent Supreme Court case finds that it was a Fourth Amendment violation, Officer Krupke would not be found personally liable. This is fair. He had no way of knowing that what he was doing violated the law, and thus it would not be fair for him to pay out of his own pocket.

But if Krupke, for example, stopped a group of, say, black voters from casting their ballots, that violation would be considered so obvious that Krupke could be held personally liable for violating the voters’ civil rights. This standard–roughly, “any idiot should have known that they were violating the Constitution”–is calledconstructive notice. The problem with constructive notice is that it’s often hard to prove that the law is so clear that any public employee would know if he or she was violating someone’s constitutional rights.

What’s more powerful and persuasive to courts is what is called “actual notice,” when you can demonstrate that a public employee had actually been notified that his or her actions would violate constitutional rights. So in the same example above, if Officer Krupke had just been told that established law made that search unconstitutional but he did it anyway, he would not be able to claim qualified immunity and therefore would potentially have to pay out of his own pocket. This makes sense, as Officer Krupke would have essentially gone rogue.

(For an accessible, comic-book-style explanation of qualified immunity, check out thisgreat post by The Washington Post‘s Radley Balko, featuring an illustrated discussion of exactly how qualified immunity works from attorney Nathan Burney: “What is ‘qualified immunity,’ and how does it work?”)

And, note, according to court findings, Zaccari received actual notice on repeated occasions when his own staff told him time and time again that kicking Hayden out without any due process was unconstitutional.

The reason why we see so many abuses of student and faculty rights on campus is no doubt, at least in part, that top administrators involved in even clear violations of the Constitution rarely, if ever, see any consequence other than well-deserved public embarrassment. They rarely get fired and rarely get sued. This lack of accountability, as author Nassim Nicholas Taleb likes to stress, means that administrators do not have any “skin in the game,” which creates a situation where administrators can repeatedly violate constitutional rights over the course of decades without fear of consequences.

FIRE has been trying to combat this lack of accountability for some time now, beginning way back in 2008, when we started sending certified mail letters to both the university president and top administrators of every school in the country that wedesignated as having a “red light” (a.k.a. blatantly unconstitutional) speech code rating. We’ve done this repeatedly over the years as new case law once again shows that campus speech codes are unconstitutional on a public campus. For example, in2008 and 2010, respectively, we sent certified mailings after the United States Court of Appeals for the Third Circuit struck down speech codes at Temple University and the University of the Virgin Islands.

And to make it even harder for administrators to claim “I didn’t know I was violating students’ constitutional rights,” FIRE writes on this topic all the time. In fact, FIRE’s Azhar Majeed wrote an article in a prominent law journal making the argument that administrators who violate student free speech rights should not be protected by qualified immunity.

But there is a bureaucratic problem that negates the effectiveness of the threat of personal accountability for administrators. Most university presidents and administrators are protected from lawsuits by their university insurance policies. This is understandable, and even desirable in most cases. However, given that the bar for overcoming qualified immunity is so high and the rights at stake are so important, it doesn’t make sense that administrators should be bailed out by insurance companies or their universities if they violate the clearly established rights of their students or faculty.

Put simply, a university president should no more be protected under the university’s directors and officers’ insurance for kicking a student out for unambiguously protected speech than he should if he hit that same student with his car, or, worse yet, intentionally assaulted him. This is the kind of behavior that insurance was never intended to cover.

Holding Abusive Administrators Personally Liable for Violating Students’ Constitutional Rights

If individual administrators had to worry for even a second that they might be held personally liable for violating students’ clearly established constitutional rights, you can guarantee one thing: Incidents of abuses of student free speech and due process rights would plummet. As I explained last year in my announcement of FIRE’s Stand Up for Speech Litigation Project, many administrators choose to overreact to speech because they feel that there is no downside for doing so, whereas there is a host of potential consequences for failing to act, including harassment lawsuits, tort lawsuits, and investigations by the Department of Education. However, administrators’ fear of personal liability would likely often outweigh their fear of these other consequences, making them think twice before violating student and faculty rights. But insurance and university policies undermine this potentially elegant solution.

So what can be done?

First of all, every insurer of public universities in the country should look at its policies and ask, “Should we really be paying the bill for administrators who violate their student or faculty member’s clearly established constitutional rights, even after they’ve been put on notice that to do so would be an unlawful abuse of their power?” There are many things that insurance will not pay for if it involves knowing or reckless actions. Administrators who violate students’ constitutional rights are either knowing, or, at the very least, grossly reckless.

Second, as I wrote in The Wall Street Journal in 2013, alumni and trustees should demand that universities adjust their insurance policies so that they will not have to bail the administrators out if they violate students’ constitutional rights. And if they find themselves in a position where they are still forced to pay for constitutional abuses, they should protest.

Third, a lot more students need to be willing to come forward and sue their colleges and the administrators who abused their rights. Sadly, it seems as though these kinds of abuses will continue unless there is a real and tangible cost for wrongdoing.

Lastly, state and federal legislatures should consider ways to make sure that universities do not have to pay damages awarded to students or faculty members who have had their constitutional rights violated. Campus censors should have to absorb these costs themselves.

This, of course, will raise hackles from university administrators, the lawyers who toil to defend them, and those in the “risk management” industry. But it shouldn’t. The only way a public employee loses the protection of qualified immunity is if he or she has knowingly or recklessly done something that violates someone’s most fundamental constitutional and human rights. It’s a high bar, and if public employees meet it, they should suffer the consequences of their actions.

If President Zaccari had considered for one minute that he might have to pay money out of his own pocket, I bet he would’ve taken the advice of his staff and left Hayden alone. But, sadly, unless we take action to make sure there are real consequences for public employees who violate students’ or any citizen’s constitutional rights, we can only expect more outrageous legal odysseys like Hayden’s in the future.

Schools: Valdosta State University