Zaccari Statement on Federal Court Loss Ignores the Facts and Defies Rationality
September 13, 2010
Whatever magical wonder drug has former Valdosta State University (VSU) President Ronald Zaccari feeling so good about the U.S. District Court for the Northern District of Georgia's ruling on his unconstitutional expulsion of former VSU student Hayden Barnes, I want it. Then I too will be able to gleefully ignore the less pleasant realities of my existence. If no such thing exists, then perhaps Zaccari should pay a visit to his local optometrist, for his reading of Judge Charles A. Pannell Jr.'s opinion so distorts the reality and gravity of his loss in court as to defy logic.
Zaccari's statement on the district court's opinion is reported in the Valdosta Daily Times in a detailed article on the chronology of Barnes' case. If you don't have time to read Judge Pannell's opinion in full, the Times gives an excellent breakdown of the facts of the case. Whether you read the Times or the full opinion, by the time you reach the end you'll wonder how Zaccari could keep a straight face on his loss. We break down his statement line by line here.
"Being president of Valdosta State University carried with it the awesome responsibility of looking out for the safety, welfare, and well-being of the thousands of students whose care was entrusted to us while at the same time fostering an environment of learning and achievement," Zaccari said.
Nothing too objectionable here, I suppose. While "fostering an environment of learning and achievement" is more readily associated with the job of a university president, universities should be safe havens for such pursuits. And while the physical "safety, welfare, and well-being" of the students is more the direct duty of a university's security or police force, the president often must answer for their failures and serve as the university's moral leader in the event of a tragedy. The president-as-guardian image, however, crosses the line when tragic events such as the shootings at Virginia Tech and Northern Illinois University are invoked to crack down on campus discourse:
"The action I took, coming less than three weeks after the tragedy of Virginia Tech, was solely motivated by my commitment to protect the safety of VSU students and the VSU campus."
FIRE is sick and tired of these tragedies being cheapened like this. Torch readers remember that in this particular case Barnes was personally expelled by Zaccari, without any due process, after Zaccari deemed him to be a "clear and present danger" to the campus for peacefully protesting Zaccari's plan to spend $30 million on new parking decks—most notably by publishing a satirical collage of the project on his Facebook page. Judge Pannell's opinion swiftly debunked the idea of any "threat" Barnes posed to Zaccari or the rest of the campus, as described by the Times:
An investigation into Barnes quickly unfolded with Zaccari and other VSU administrative staff holding several meetings between April 20 and May 7, 2007, to discuss Barnes.
The meetings would include at various times Laverne Gaskins, in-house counsel, Kurt Keppler, then vice president for Student Affairs, Mast, and Leah McMillian, a counselor at VSU's Student Counseling Center and a counselor in direct contact with Barnes.
Throughout all meetings in which McMillian attended, she repeatedly stated that Barnes was not a threat to himself or others, according to court documents. McMillian stated that she had "never at anytime observed any behaviors that warranted (her) being concerned that Mr. Barnes was a threat to himself or anyone else."
On April 26, 2007, in a meeting with Keppler, McMillian and Dr. Victor Morgan of the VSU counseling center, Zaccari reiterated his concern regarding Barnes and claimed he felt threatened for his own safety and for that of the VSU campus. He then discussed the possibility of using an "administrative withdrawal" to remove Barnes from campus, according to court documents.
During the meeting, Zaccari described Barnes' collage as "an indirect threat" on him, but none of those in attendance expressed agreement with Zaccari's concern.
In the court documents, Zaccari expressed his feelings of an "indirect threat" by stating that Barnes had posted comments about the president on his Facebook page and had posted an article regarding the mass shooting at Virginia Tech.
Morgan felt Barnes was not using memorial in a threatening manner but took it to mean "this is a building that is going to be designated with your name on it, that you're going to be held responsible for the parking garage," according to court documents.
If this doesn't seem like the next Virginia Tech shooting to you, rest assured that you're in the overwhelming majority. Frankly, it's about time a university administrator was rebuked in court after exploiting these very real fears to achieve his or her own ends. Zaccari, however, thinks he's made out quite well:
"I am pleased to learn that the judge has ruled in favor of us on almost every claim," Zaccari said.
This is lunacy, and surely Zaccari knows it. When I first read this bit of comic spin, I was reminded of an episode of The West Wing in which Leo tries to put a positive face on an embarrassingly unsuccessful missile shield test; after he points out that nine of the ten conditions for a successful engagement were met, the President reminds him that the most crucial of the ten was not. The shield had missed its target by 137 miles.
Let's disabuse Zaccari of his fantastical notions right now:
"Judge Pannell dismissed all claims against VSU and the other university officials, who should never have been sued in the first place."
That the facts of this statement are essentially true should be no consolation to Zaccari; indeed, the other VSU officials originally named in Barnes' complaint were removed from the lawsuit only because the judge was apparently convinced that Zaccari was the sole figure responsible for Barnes' expulsion, having systematically ignored the advice of his colleagues and disregarded VSU's policies. Reading through the opinion gives a sense of just how far out on a limb Zaccari left himself. Judge Pannell's opinion highlights, for example, this exchange in which Zaccari was advised against prosecuting Barnes personally:
On the same day of his meeting with Keppler, Morgan, and McMillan, Zaccari directed that in-house counsel Gaskins inquire of Elizabeth Neely, Vice Chancellor for Legal Affairs at the BOR, as to a student's appeal rights if a university president files a complaint against a student for violation of the Student Code of Conduct [Doc. No. 179, Ex. 40].
Neely responded via email by stating,
In this case, the appeal should be directed straight to our office. It is not good practice for the President to be bringing a complaint against any student. That should be handled by staff in Student Affairs. Once the President has made a decision in a matter, there is no due process at the campus level.
Judge Pannell also notes that days after this e-mail, Zaccari instructed Gaskins to draft a letter for administratively withdrawing Barnes from VSU. Gaskins did so, but also pointed out to Zaccari that "You should note that due process dictates that the student be apprised of what particular policy has been violated, an opportunity to be heard and also informed of the appeal process." Zaccari, then, should not be in the least surprised that Barnes' claims against these and other administrators were dismissed by the court. Nor should he be surprised that Judge Pannell dismissed as "disingenuous" his argument that he was entitled to qualified immunity as a public official because he had consulted with them.
What is shocking is the picture of Zaccari that emerges in the opinion. That this destructive series of events would turn out to be almost entirely the doing of one reckless administrator, in defiance of his legal counsel, is almost unthinkable. Surely someone else must have thought this was a good idea for it to go forward, right? Apparently not; the judge's opinion depicts Zaccari as ignoring his colleagues' advice at every turn, and he will now be paying for it—literally.
Zaccari also shouldn't claim victory over VSU being dismissed as a defendant in the suit. Judge Pannell's opinion ruled merely that it was the University System of Georgia Board of Regents—not VSU—that was the proper party to sue under state law, and the Board of Regents is now liable for the breach of contract committed against VSU's student handbook by Zaccari.
We're not nearly done with Zaccari's delusional self-congratulation:
"[Pannell] ruled in my favor on all claims except one - a claim involving procedural due process."
Judge Pannell's opinion casts this in a different (i.e. correct) light:
The undisputed facts and other evidence show that Gaskins repeatedly advised against and/or warned Zaccari of the ramifications of removing Barnes without some sort of due process. Then, ignoring Gaskins's advice and making the decision on his own, Zaccari decided to issue the notice of withdrawal to Barnes without any kind of notice of the allegations or a hearing.
Zaccari engages in some Ringling-esque acrobatics to minimize such an epic—indeed, precedent-setting—defeat. "[Pannell] ruled in my favor on all claims except one." Yes, and it was only one iceberg that sank the Titanic!
"The court dismissed the student's claims under the First Amendment and Americans with Disabilities Act."
Zaccari may be clear of any possible ADA violations, but shouldn't think he's out of the woods on the First Amendment issue. At issue was not whether or not Barnes' speech was protected under the First Amendment—there can be no doubt that it was, whatever Zaccari would have us believe. At issue here was whether or not a conspiracy existed to retaliate against Barnes on the basis of his First Amendment speech. The reason why Judge Pannell found there wasn't is rather simple: no one else at VSU seemed to want to go along with Zaccari's plan to expel Barnes without due process. Judge Pannell's opinion does offer this interesting tidbit, however, which does not make the Board of Regents look good:
Then, on May 2, 2007, Zaccari summoned Gaskins to his office to participate in a telephone conference with Neely regarding Barnes. During the conference, Neely discussed various ways that Barnes could be administratively withdrawn.... Neely later told Zaccari that the President should focus on the safety of campus and himself and "we'll worry about the lawsuit later." Gaskins Depo.
[Doc. No. 179, Ex. 8 at 68:14-15]. (Emphasis added.)
That aside, that Zaccari's decision to expel Barnes was heavily motivated by Barnes' protected speech is obvious, and it's conceivable that Barnes will ask the court to reconsider his claims under the First Amendment on this point. If it does, does Zaccari really think he can convince a court that Barnes' speech isn't worthy of First Amendment protection? I'd like to see him try.
"... I appreciate the time that the court has devoted to understanding the situation with which I was faced," Zaccari said.
Give me a break. The situation with which you were faced? As if Barnes being unjustly expelled and being declared a threat to the community is something one can just shake off.
"I look forward to what I hope will be a final resolution of the remaining claim in my favor."
FIRE, like Zaccari, looks forward to the final resolution. We expect, however, that Zaccari will be sorely disappointed with the result. We'll see then if he tries to claim victory for himself in this landmark case.