FIRE Legal Scholarship in ‘Cardozo Public Law, Policy & Ethics Journal': College Administrators Face Loss of Qualified Immunity

By October 4, 2010

I am pleased to announce that my article on the piercing of qualified immunity for violations of public university students’ free speech rights has been published in the Cardozo Public Law, Policy & Ethics Journal.

In the article, I argue that given the clear state of the law on speech codes, administrators responsible for maintaining unconstitutional speech codes at public universities should not be shielded by qualified immunity against personal liability for monetary damages. I also argue that qualified immunity should not protect administrators in the most common types of applied free speech violations. The article deepens important arguments that FIRE has long made with regard to violations of the First Amendment on public university campuses.

FIRE followers will recognize the importance of these arguments. We have pointed out on many occasions that the law is well established that speech codes restricting protected expression on their face are legally untenable at public colleges and universities, as the courts have consistently struck down such regulations over the past two decades. Indeed, prior legal scholarship from FIRE has laid out this uniform case law, decision by decision. Likewise, we have repeatedly made the point that the most typical applied free speech violations involving students at public universities contravene clearly established First Amendment law.

Therefore, in my article I argue that the administrators responsible for such violations, whether in policy or in practice, should not enjoy qualified immunity and should have to face personal liability for their actions.

Qualified immunity shields public officials 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). 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. 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.

Given the weight of the authority against the continued implementation of speech codes at public universities, it is very difficult 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 open themselves up to personal liability when they ignore clearly established law with respect to speech codes. Our mailing campaign was our strongest attempt to date to make clear to university administrations that the law on speech codes is not going anywhere, and that they need to make sure their institutions’ policies are in compliance with the First Amendment. Though that was nearly two years ago, universities by and large continue to violate their students’ rights when it comes to both freedom of expression and due process.

Of course, as Torch readers likely know, our arguments for piercing qualified immunity were recently confirmed and bolstered by a Georgia federal court’s decision to deny qualified immunity to former Valdosta State University president Ronald Zaccari in Hayden Barnes’ lawsuit. The court held that Zaccari’s handling of the Barnes casedenying the former VSU student any kind of notice or a hearing, and instead "administratively withdraw[ing]" him from school via a note slipped under his doorwas a very clear violation of Barnes’ due process rights under the law. The court ruled that because Zaccari ignored clearly established law in punishing Barnes, Zaccari was not entitled to qualified immunity and was personally liable for damages, in an amount still to be determined. The decision is therefore a loud warning to administrators that they violate clearly established law at their own financial peril.

Given these developments, I hope that my article is an informative contribution to the legal scholarship on freedom of speech on college campuses. The message should by now be clear to administrators: respect the First Amendment at America’s colleges and universities, or else do not expect qualified immunity and your state’s taxpayers to come to your rescue.