After ‘Barnes’ Settlement, Colleges Must Answer $900,000 Question

Yesterday, FIRE was proud to announce a just resolution to Barnes v. Zaccari, a legal saga dating all the way back to the spring of 2007, when former Valdosta State University (VSU) student Hayden Barnes was expelled for posting a satirical collage on Facebook. Thanks to Hayden’s remarkable courage, and the tenacity and expertise of Davis Wright Tremaine attorneys Bob Corn-Revere, Ronald London, and Lisa Zycherman, the case concluded yesterday with a $900,000 settlement to be paid by defendants to Barnes. That’s a big number to answer for a big injustice.

FIRE helped Hayden fight for justice every step of the way, from the moment he first emailed us about the case in October 2007. (I had fun reviewing our initial internal emails about the case this morning. In sequence, FIRE staffers’ first responses to the facts of Hayden’s horrible treatment read: “All I can say is wow,” “Double wow,” and “Wow indeed.”)

That October, we began by protesting the obvious injustice of his expulsion in two letters to the Board of Regents of the University System of Georgia. When that didn’t work, we connected Hayden with his first-class legal team. When Hayden’s initial victory was appealed by defendants, we filed an amici curiae brief with the United States Court of Appeals for the Eleventh Circuit, joined by more than a dozen organizations from across the political spectrum. When Hayden returned to the Eleventh Circuit to get his First Amendment claim reinstated, we again filed an amici curiae brief, again joined by more than a dozen diverse organizations united for student rights. It’s been quite a journey. Personally speaking, yesterday’s announcement ends a case I’ve worked on for almost all of my professional life.

But you may know all this already—because FIRE supporters have followed Hayden’s wild ride every step of the way, too. I know I speak for Hayden and all of us here at FIRE when I thank you for the generous, principled support. It means a hell of a lot to us. Simply put, our defense of students like Hayden is possible only because of that support.

Back to yesterday’s settlement. In the 20 hours since the announcement, my colleagues and I have repeatedly fielded variations of one core question: Who’s footing the $900,000 bill?

The answer to that question is found in the first point of the settlement agreement:

Plaintiff understands that all of the consideration under this Agreement is being paid by the Georgia Department of Administrative Services ("DOAS") as administrator of the State Tort Liability Trust Fund and the Broad Form Policy and, by Munich Reinsurance America, Inc. providing excess coverage to DOAS and its insureds, who are acting as independent contractors in connection with this settlement and not as an agent of any party released.

In other words, Georgia’s tort fund and an insurance company are covering the costs for the misdeeds of former Valdosta State University president Ronald Zaccari and his co-defendants. Yes, Zaccari’s “qualified immunity” defense was rejected, meaning that he could be found personally liable for damages. But the doctrine of qualified immunity does not govern who pays for that liability; rather, it governs whether the defendant can be held responsible at all. That is an important distinction, though subtle. If Zaccari had been granted qualified immunity, the claims against him would have been dismissed. Because he wasn’t, he could be found personally liable for his actions—and that liability could in turn be covered by an insurance agency or a state tort fund.

To be clear: The fact that the state and/or insurer is ultimately picking up the defendants’ tab doesn’t diminish the importance of yesterday’s victory one iota. Because guess what powerful institutional force carries an incredible amount of influence over university policies and practices? The risk management industry and insurance companies.

As FIRE has long recognized, the risk management industry wields tremendous power within higher education, calling the shots on codes of conduct and best practices. So the fact that civil liberties violations just cost an insurance company and a state tort fund nearly a million dollars will garner plenty of attention from plenty of powerful offices. Public colleges and universities nationwide—and, just as importantly, their insurance companies—now have 900,000 reasons to double-check their policies and make sure that none of their employees have even the slightest inclination to silence and expel a student for speech protected by the First Amendment. That’s what changing the incentives on campus in favor of civil liberties looks like in practice: attaching a cost to violating student rights that is so large that it cannot be ignored.

Now colleges will have to ask themselves the $900,000 question when confronted with speech they dislike or due process protections they’d rather not follow. The conversation should go something like this, as my colleague Sarah McLaughlin put it on Twitter:

Writing about the victory yesterday for The Huffington Post, FIRE President and CEO Greg Lukianoff makes some important observations about how insurance companies and state legislatures might consider dealing with campus censors like Zaccari in the future. After all, Zaccari went rogue, rejecting the advice of his colleagues by choosing instead to pursue his vendetta and kick Hayden out of school with nary a scrap of due process or respect for the First Amendment. Insurers might not appreciate being stuck with the tab for such blatant misconduct. Surveying the landscape post-Barnes, Greg writes:

First of all, every insurer of public universities in the country should look at its policies and ask, "Should we really be paying the bill for administrators who violate their student or faculty member's clearly established constitutional rights, even after they've been put on notice that to do so would be an unlawful abuse of their power?" There are many things that insurance will not pay for if it involves knowing or reckless actions. Administrators who violate students' constitutional rights are either knowing, or, at the very least, grossly reckless.

Second, as I wrote in The Wall Street Journal in 2013, alumni and trustees should demand that universities adjust their insurance policies so that they will not have to bail the administrators out if they violate students' constitutional rights. And if they find themselves in a position where they are still forced to pay for constitutional abuses, they should protest.

Third, a lot more students need to be willing to come forward and sue their colleges and the administrators who abused their rights. Sadly, it seems as though these kinds of abuses will continue unless there is a real and tangible cost for wrongdoing.

Lastly, state and federal legislatures should consider ways to make sure that universities do not have to pay damages awarded to students or faculty members who have had their constitutional rights violated. Campus censors should have to absorb these costs themselves.

This, of course, will raise hackles from university administrators, the lawyers who toil to defend them, and those in the "risk management" industry. But it shouldn't. The only way a public employee loses the protection of qualified immunity is if he or she has knowingly or recklessly done something that violates someone's most fundamental constitutional and human rights. It's a high bar, and if public employees meet it, they should suffer the consequences of their actions.

I couldn’t agree more. Be sure to check out the rest of Greg’s piece, which includes a detailed discussion of the case’s history and an early FIRE video. And for an in-depth look at the doctrine of qualified immunity, see my colleague Azhar Majeed’s 2010 article for the Cardozo Public Law, Policy & Ethics Journal, “Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights.”

It’ll be very interesting to watch the fallout from yesterday’s big victory for student rights. In the meantime, here’s to Hayden Barnes and his legal team for a hard-fought and well-deserved win. Yesterday’s settlement will send a very clear message to higher ed administrators nationwide. It's my own personal hope that the case becomes a kind of all-too-true ghost story in years to come, scaring would-be campus censors into staying on the right side of the law. All of us here at FIRE will work hard to make sure that happens.