FIRE to Administrators of Public Colleges Nationwide: Beware of Personal Liability for Free Speech Violations
December 22, 2010
Today, FIRE warned the presidents and top lawyers at nearly 300 public colleges and universities across the nation that they and their staffs should be ready to pay out of their own pockets if they continue to violate their students' free speech rights.
Let's hope that this catches their attention once and for all. 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. This means that if they feel like they can score political brownie points with those on campus who wish to see dissent silenced, they can do so without any personal cost. Heck, even if they lose to FIRE or in court, they can still say to their cronies, "Hey, I tried my best. We spent thousands in legal fees trying to shut those students up. We just couldn't manage it!"
FIRE is putting these individuals on notice by sending a certified mailing this week to the presidents and general counsel of 296 of the biggest and most prestigious public colleges across the nation, highlighting significant legal developments from the past year. 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 from liability.
The legal doctrine of qualified immunity protects government officials from personal liability for monetary damages for violating another person's constitutional rights if their actions do not violate "clearly established law" of which a reasonable person in their position would have been aware. 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 under a constitutional challenge. One would think that university lawyers or law schools might have educated administrators on basic First Amendment principles, but one would evidently be mistaken.
Thanks to a continuing stream of federal court decisions, however, particularly in the Third Circuit, the argument that college administrators do not know that speech codes violate student free speech rights is increasingly untenable. Earlier this year, in McCauley v. University of the Virgin Islands, the Third Circuit Court of Appeals struck down university policies that absurdly prohibited "offensive" or "unauthorized" signs and conduct causing "emotional distress," noting that a "desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students."
In our mailing, we are also warning administrators about a recent federal case in Georgia that FIRE coordinated, in which a federal district court determined that former Valdosta State University president Ronald Zaccari was not shielded from personal liability for violating the clearly established rights of student Hayden Barnes. (Zaccari is currently appealing that decision.) This is a major finding against a former university president, and if upheld, administrators will no longer be able to fool themselves that the possibility of qualified immunity being pierced is not a real one. As Dr. Johnson famously said, "the prospect of a hanging concentrates the mind wonderfully."
FIRE comes wielding the carrot along with the stick, though. For colleges that wish to make an honest effort to rectify their speech codes—they do exist—FIRE offers resources such as its guide to Correcting Common Mistakes in Campus Speech Policies, a bound version of which is included in every certified letter. FIRE is also willing to consult with any university that shows an interest in changing its policies to better protect free speech on campus.
No institution should be proud of stripping its students of their fundamental rights. As our 2011 report on speech codes pointed out, the proportion of colleges that do so is slowly but consistently falling. "Only" 67 percent of public institutions colleges now prohibit speech that would be allowed in the larger society. (Three years ago, it was 79 percent, so it could be, and has been, worse.) But 67% is nowhere near good enough. Until that number reaches zero, FIRE will be there to bring the accountability to universities that is so sorely lacking.