Colleges warned of liability for free-speech violations

December 27, 2010

A civil-rights organization says it has put hundreds of college presidents and attorneys who serve as legal counsel for the institutions on notice that their hefty personal payment packages could be hit – and hit hard – if they violate the free speech rights of students on their campuses.

‘Administrators may be held personally liable for continuing to maintain unconstitutional speech codes in violation of students’ First Amendment Rights," according to a new letter from The Foundation for Individual Rights in Education.

Certified letters containing the warning were dispatched to nearly 300 public colleges and universities across the nation suggesting that those education executives "should be ready to pay out of their own pockets if they continue to violate their students’ free speech rights."

"For too long, public college administrators have been intentionally violating the free speech rights of their students, secure in the knowledge that they won’t personally lose a dime should a court rule against them," said Robert Shibley, a senior vice president for FIRE. "This has given administrators the opportunity to censor whatever opinions they dislike and make all of us pay for it.

But thanks in large part to FIRE, the excuse that makes this possible – that they ‘didn’t know’ that students had free speech rights – is quickly vanishing," he said.

In fact, WND reported recently when U.S. District Judge Charles Pannell Jr. ruled in the case of Valdosta State student Thomas Hayden Barnes. He was expelled in 2007 after he peacefully protested plans by then-President Ronald Zaccari to use $30 million in student activity fees to build a parking garage.

The court found Zaccari was not shielded from personal liability for violating Barnes’ rights.

"This is a major finding against a former university president, and if upheld (on appeal), it will serve as important federal precedent for holding future administrative malefactors personally responsible for their abuses of student rights," FIRE documented.

FIRE reported its letter was dispatched to 296 of the biggest and most prestigious public colleges across the nation.

"FIRE’s mailing warns these top administrators that with the state of the law on campus speech codes clearer now than ever before, they and their employees violate the speech rights of students at their own financial peril, as they can no longer count on ‘qualified immunity’ to shield them," the organization said.

"The legal doctrine of qualified immunity protects government officials from personal liability for monetary damages for violating constitutional rights if their actions do not violate ‘clearly established law’ of which a reasonable person in their position would have known. For years, public universities have argued that their speech codes did not violate clearly established law regarding students’ First Amendment rights, despite one legal decision after another striking down these codes," the organization reported.

That’s over now, "thanks to a continuing stream of federal court decisions."

Among the newest precedents in support of the warnings was the McCauley v. University of the Virgin Islands case, where the 3rd U.S. Circuit Court of Appeals struck down policies banning "offensive" or "unauthorized" signs as violations.

"FIRE’s certified mailing this week makes it that much more difficult for administrators at those universities to argue that they did not have reason to know they were violating students’ rights," said Azhar Majeed, FIRE’s associate director of legal and public advocacy. "However, FIRE stands ready to help any institution that wishes to ensure that its policies respect the First Amendment, and we hope for a positive response to our letter."

A sampling of the mailing, a letter to Gordon Gee at Ohio State, said FIRE was recommending "strongly" that the institution’s policies be reformed.

It cited:

  • McCauley v. University of the Virgin Islands, where the courts found the ban on "offensive" signs unsustainable;
  • DeJohn v. Temple University, where the court invalidated a university sexual harassment policy for being overbroad;
  • Dambrot v. Central Michigan University, where a court declared a university discriminatory harassment policy facially unconstitutional;
  • College Republicans at San Francisco State University v. Reed, where the court enjoined enforcement of university civility policy;
  • Corry v. Leland Stanford Junior University, where a court ruled an anti-harassment by personal vilification policy was unconstitutional; and others

"Taken together, [the cases] send an unequivocal message: Public universities cannot restrict protected speech, whether by harassment policies, free speech zones, civility policies, or other regulatory contrivances. Indeed, the Supreme Court has long recognized that the First Amendment is of special importance on college campuses," the organization reported.

"The court has made clear that the ‘college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and that its precedents ‘leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities,’" it said.

And it offers online suggestions for the 67 percent of the 286 public universities that have at least one policy that "clearly and substantially restricts freedom of speech, in contravention of legal precedent," FIRE reported.

"You must be aware that maintaining university policies that prohibit constitutionally protected expression is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which university administrators may be sued in their individual capacities for punitive damages," the letter warns. "Given the sparkling clarity of the case law with regard to the unconstitutionality of speech codes at public universities, please be advised that claims of immunity from personal liability put forth by individual university administrators will likely be unsuccessful."