Litigate against university presidents to enforce first amendment rights

University and college campuses across the United States massively infringe the first amendment rights of their teachers and their students, typically in order to enforce politically correct language. Such interventions constitute violations of open scholarship and a contempt for any notion of individual liberty.

Presidents of public universities, until recently, have protected themselves when challenged in the courts by faculty or students whose first amendment rights have been so violated, by hiding behind the legal principle of qualified immunity. Qualified immunity is a legal principle that shields state employees from personal liability for constitutional violations while carrying out their job duties. In essence, this principle requires taxpayers to cover any adverse legal consequences of constitutional violations by university presidents or, indeed by any of their agents.

A recent court judgment, blessedly may have pierced, that shield and located the Achilles heels of those demi-gods who throw their weight about on college campuses. Trojans may now rejoice once again in their fight against the armies of Agamemnon.

In 2007, President Ronald Zaccari expelled student Hayden Barnes from Valdosta State University in the State of Georgia. Zaccari was responding to a sequence of flyers posted on campus by Barnes challenging Zaccari’s plan to construct two new parking garages on campus. One such flyer pointed out that the estimated $30 million cost of the garages would provide 2,950 full scholarships for students of the university.

Barnes’s real ‘crime’, however, was his reference to the construction project as a ‘memorial’ parking garage, a joke on the president’s reach for immortality by naming the garage project for himself. President Zaccari, alleging that the use of the word ‘memorial’ constituted a threat on his life, and ignoring objections by his own staff and statements from several psychiatrists to the effect that Mr. Barnes was a known advocate of non-violence, expelled this ‘troublesome student’.

Mr. Barnes filed suit in 2008, enlisting the help of First Amendment attorney, Robert Corn-Revere. In February 2013, a federal jury found against former president, Zaccari, and awarded compensatory damages of $50,000. Zaccari may additionally be held liable for all of Mr. Barnes extensive legal costs. The remaining question, for the court to determine, is whether Zaccari can now protect himself via qualified immunity, thereby diverting the cost of his misbehavior to the pocketbooks of Georgia taxpayers.

There is a real opportunity in this case to pierce this protection. Qualified immunity does not hold when a state official is found to have abused his legal authority and done something he either knew, or should have known, violated clearly established constitutional rights. One would think that the case is clear with respect to President Zaccari’s self-seeking intervention.

The case constitutes an enormously important potential break-through for free speech across college campuses. Legions of state employees will be placed in financial jeopardy should Zacarri’s defense be broken. Since the early 1980’s campuses across the country have maintained dramatic speech restrictions, including the imposition of minute ‘free-speech zones’ on college campuses. In some instances, colleges prohibit the use of words by their professors that might be read to pass judgment on the relative performance of their students. How such professors manage to grade, other than, like Harvard, by denoting 95 per cent of their students as passing summa cum laude, is beyond understanding.

Speech restrictions are challenged only rarely by students or professors – for reasons that are self-evident – but litigation almost always succeeds when it occurs. An obvious solution now exists to roll back speech restrictions en masse. By holding university administrators financially responsible for their violations of free speech, they will confront the ultimate test: having to put their pocket-books directly in support of their personal prejudices. Few will make that choice. For the prejudices of university administrators are rarely more than skin-deep. And the depth of their personal pocket-books is the only reason – other than incompetence in scholarship – why they choose administrative careers on college campuses.

Sue and damn the administrators, should be the motto of any free-speech loving member of any college community across the United States.

Hat Tip: Greg Lukianoff, ‘Campus Clampdowns on Free Speech Flunk Their Legal Tests’, The Wall Street Journal, February 16, 2013

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