Valdosta State Case Puts College Officials On Notice: You Can’t Violate The First Amendment

July 31, 2015

By George Leef at Forbes

Occasionally, you come across a legal case so strange that it makes you stop and wonder, “Is this even for real?”

Such a case has recently come to an end with a strong victory for student free speech rights and an equally strong rebuke to the idea many college administrators seem to have that they hold king-like powers on campus. The facts are as follows.

In early 2007, Hayden Barnes was a student at Valdosta State University in Georgia (VSU) when school officials announced plans to build a new parking garage using $30 million in student fee money. Barnes, an avid environmentalist, opposed the plan and made his opposition known. He posted flyers, wrote a letter to the campus paper and sent emails to the faculty senate, the Board of Regents, and to President Zaccari.

Barnes kept up his opposition and later posted a collage on his Facebook page in which he referred to “the Zaccari Memorial Parking Garage.” Barnes meant that as a sarcastic reference to Zaccari’s comment that the new garage would be part of his “legacy” at the university. But by now Barnes had so gotten under Zaccari’s skin that he and several administrators seized upon the post as a pretext for having him expelled as a “threat” to campus safety.

So, on May 7, 2007, Barnes received a letter from President Zaccari, which declared that “as a result of recent activities directed towards me by you, including but not limited to the attached threat document, you are considered to present a clear and present danger to this campus.” Using the current euphemism for expulsion, Barnes was informed that he had been “administratively withdrawn” from school and would have no opportunity to contest the decision.

(You can read the January, 2015 decision of the 11th Circuit Court of Appeals in Barnes v. Zaccari here. It covers the details fully.)

Shortly thereafter, VSU was contacted by the campus watchdog group Foundation for Individual Rights in Education (FIRE), informing officials that their actions had violated the rights of Hayden Barnes and if it did not reverse course and re-admit him, the school would face a legal challenge. Zaccari was not about to back down and thus a protracted legal battle began.

Now, after more than eight years, VSU has made a final settlement — $900,000 to Barnes for the violation of his rights and payments to his attorneys for their work in vindicating those rights.

One important precedent the case sets pertains to the defense Zaccari tried to raise against the suit, namely that he was protected by “qualified immunity.” That is a legal doctrine which means that public officials can’t be sued for their actions as long as they were acting “reasonably” in the course of their duties. There’s a lot of gray area in that concept, but not an infinite amount. Eventually you get to black – conduct the individual knew or should have known was out of bounds.

In this instance, Zaccari knew that his high-handed treatment of Barnes was on extremely thin ice legally but he recklessly proceeded with his vendetta anyway. His own staff had warned him that expelling Barnes without any opportunity for a hearing where he could challenge the accusation that he posed a danger was illegal. The 11th Circuit tossed out his feeble qualified immunity defense, as it did in another “qualified immunity” defense case that arose last year in Florida, where police and state licensing officials engaged in a wildly inappropriate, SWAT-style raid of a barbershop.

One of America’s worst problems today is that people in official positions (university presidents, police officers, and others) think they are above the law and never accountable when they act illegally. The decision in Barnes puts college officials on notice that qualified immunity is not going to shield them against lawsuits if they trample upon the procedural and constitutional rights of students.

Another aspect of this case that should attract serious attention from state politicians and taxpayers is the cost of the litigation and the settlement.
In defending Zaccari and VSU against the perfectly predictable litigation, Georgia taxpayers wasted a lot of resources (I don’t know how much) that could have been used productively. Additionally, the state is now on the hook for the $900,000 settlement. That amount will come from the State Tort Liability Trust Fund as well as its reinsurance agent, Munich Reinsurance America, Inc.

As Will Creely, FIRE’s vice president for legal and public advocacy, writes in this piece, “In other words, Georgia’s tort fund and an insurance company are covering the costs for the misdeeds of former president Ronald Zaccari and his co-defendants. “ Even though his qualified immunity defense was laughed out of court, Zaccari still won’t bear the cost of his wanton actions.

Addressing that problem, FIRE president Greg Lukianoff observes in a recent Huffington Post piece, “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 consequences other than well-deserved public embarrassment.”

Exactly. Zaccari’s attack on Hayden Barnes imposed a heavy cost on the state, not on himself. 

Is there a solution?

State politicians have power over the institutions they fund, so they could insist on contract language stating that if a senior higher education official causes the state to suffer legal costs because of conduct that was outside of a “qualified immunity” defense, that individual will be liable for such costs.

A provision like that would be a strong deterrent to the kind of overreaction we frequently see from college officials when they take an authoritarian line in speech, sexual assault, or other campus disputes. But wouldn’t it scare away good people from seeking higher education positions?

It wouldn’t if the officials knew where the boundaries are. That is to say, if they had learned enough about the legal landscape to realize what actions could put them in jeopardy of having to pay for damages and legal fees. What they need, in short, is a bit of legal training so they couldn’t say, “But I had no idea I couldn’t do that….”

Colleges and universities already spend great amounts on “diversity training” programs for faculty and staff. Redirecting some of that money into legal training on the rights of students would be an excellent idea.

Too late for Georgia to avoid the costs run up by Ronald Zaccari, but schools there and all across the U.S. might avoid future blunders through a combination of sensible contracts and legal education.

Schools: Valdosta State University Cases: Valdosta State University: Student Expelled for Peacefully Protesting Parking Garages