Not a Threat, an Opportunity
March 15, 2007
Any punishment enforced against the College Republicans under SFSU’s student conduct policies as a consequence of their exercise of their First Amendment rights is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which SFSU administrators can be sued in their individual capacities. Moreover, when the law is as clearly established as it is in this case—the Supreme Court’s well-known and unequivocal holding in Texas v. Johnson, 491 U.S. 397 (1989) that flag desecration is constitutionally protected—any claims of immunity on the part of the individual administrators will likely fail. State officials and employees are offered only qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Davis v. Scherer, 468 U.S. 183 (1984).Existing First Amendment law leaves no doubt that the College Republicans’ expressive activity enjoys complete protection under the First Amendment. No reasonable person could claim otherwise. As such, your persistence in pursuing potential disciplinary sanctions against the College Republicans effectively waives immunity from liability under § 1983. To be clear, if you continue to ignore your constitutional obligations, you risk personal liability for depriving your students of their rights.
I object strongly to the letter’s hostile tone and threatening statements about possible legal action against individuals participating in the SOHP process—threats that I and others read as an attempt to intimidate members of the university community into substituting FIRE’s judgment for their own.