College Censors, Get Ready to Open Your Wallets
The problem is easily fixable if administrators have the will to respect the law. Earlier this year, the University of Virginia eliminated all of its speech codes in a matter of months. But UVa is, unfortunately, the honorable exception to the rule. At this rate, our taxpayer-funded colleges and universities will have manged to get on the right side of the Constitution (sort of; yellow-light schools still have significant speech problems) by the year 2027. Perhaps whatever university starts up on the Mars colony will actually respect the Bill of Rights!
Thankfully, there is a way to speed up this process. It’s called “piercing qualified immunity,” and it’s what FIRE’s letter to public university administrators is mainly about. Qualified immunity is a legal doctrine that protects government officials from personal liability for monetary damages for violating constitutional rights if their actions do not violate “clearly established law” of which a reasonable person in their position would have known. And it’s more clearly established than ever, especially in light of a recent decision from the Third Circuit in McCauley v. University of the Virgin Islands, that campus speech codes that ban speech for being “offensive,” for example, are not legal.
Nevertheless, courts are pretty generous about granting qualified immunity, even when universities do something clearly insane — like punishing a student for quietly reading a book. Most people don’t even consider trying to get administrative malefactors to pay out of their own pockets for their blatant censorship.
But this is changing. This year, for the first time in FIRE’s memory, a (former) university president has been held personally liable for violating the constitutional rights of a student. Ronald Zaccari, then president of Valdosta State University in Georgia, summarily expelled student Hayden Barnes after he posted a collage on Facebook making fun of the president’s project to build two parking garages on campus. For this heinous crime, he woke up one morning to a letter under his dorm room door telling him to get out. Barnes took Zaccari to court, where, in what will be a landmark precedent if upheld on appeal, Zaccari was determined to have ignored “clearly established” law in punishing Barnes and therefore did not enjoy qualified immunity for his offense against the First Amendment.
This has the potential to fundamentally change the incentive structure that leads to campus censorship. Instead of indulging the natural tendency to silence one’s opponents or capitulating to censor-happy pressure groups on campus, public university presidents and other administrators will have to consider, “Is silencing my critics or placating these people really worth the possibility that I will be paying thousands of dollars of my own money?”
FIRE is willing to bet that while censorship might be tempting, it’s going to look a lot less inviting when it it means you might have to buy a Ford rather than that Mercedes you had your eye on. (Or, if you’re that low-level student affairs staffer, maybe a Pinto instead of a new Fiesta.) If you can’t appeal to a public official’s sense of responsibility towards the Constitution, I suppose appealing to their self-interest is the next best option.
Although it sounds good — very good — it’s best not to count chickens before they’re hatched.
This is a good start. After one or two more of these suits are won, it will become firmly placed in law and the speech codes will disappear immediately…at least within public institutions. Watch the contracts of new hires to see whether this is taken seriously. If these contracts include an indemnification for this type of action, then the suits are paying attention.
Very good news to read. And about time. Times may actually be changing. Back in my campus days if someone said he wanted to burn down the parking garage the wetire administration would commend his “strong, independent voice for change”.
While this decision is based on a rather outrageous case of petty insecurity, one hopes that it will go some way to allow students (and faculty) to more freely express themselves politically.
Be careful for what you wish for.
Get ready for speakers advocating genocide under Free Speech.
College Pres. We know that group/person had a record but couldn’t be sure he would repeat himself while at our college. It is “clearly established law” that a person is innocent unless proved guilty and we can’t preempt without a speech code. Perhaps the imam would have given instructions on how to cook rice instead of Jews?
Get ready for disruption of non PC speakers to the point of drowning them out.
College Pres. At what point does heckling stop being free speech and who makes that decision? The campus cops are not qualified and we don’t have the time to monitor every meeting, held every day. We can’t even select which meetings without being guilty of the “clearly established law” against racial profiling.
“Clearly established law” makes free speech without speech codes harder not easier.
>>“Clearly established law” makes free speech without speech codes harder not easier.
You’re overworking it. I can already see where Jew-hating imams can now be heckled and shouted down instead of being guaranteed a polite audience.
I think this is great work. When will FIRE go after faculty and teaching staff who have their own personal speech codes in the classroom?
“… I can already see where Jew-hating imams can now be heckled and shouted down instead of being guaranteed a polite audience…”
Except, the reverse seems to be true in most groves of academe – administrators seem to believe that any criticism or disciplinary action of CAIR-inspired rowdieness will result in personal assaults against them by the Salafists.
Just when was the last time some “Jew-hating imam” was shouted down?
But, it happens to David Horowitz all the time by the minions of CAIR/MB.
Plus, there already are laws in place regarding “disturbing the peace” that are applicable to public assemblies.
Sorry, this is a non-point. Some speech is already proscribed, e.g., the famous yelling “Fire!” in a crowded theater, and verbally threatening someone (assault).
And this differs from current practice in what way?
FIRE..!
And the bad boy’s walls will come tumbling down.. right?
First, someone at FIRE needs to straighten up their unsatisfactory BBB rating.. no holes in the armor to send a silver bullet through kind of thing.
Why do I keep coming back to PJM web site to read this stuff?
Easy to remedy…..buh bye!
Maybe because deep inside, you know it really makes good sense??? But you just don’t want to admit it.
Looks like they already fixed the minor issues with frequency of board meetings and reports, and will meet all 20 criteria in the next report.
And how many of these same universities are censoring the speech of Muslim students, or students sympathetic to Muslim causes, on their campuses? Almost all universities are hotbeds of hypocrisy.
I glad FIRE is around doing this good work, but I wonder if this high-fiving is justified at this point. It seems like new legal theory, and I am picturing the unbroken ranks of government lawyers stretching to the horizon who will litigate far into the future at the taxpayer’s expense.
Yes it sucks that they get to use our money to do things we don’t want and to fight against us for what is wrong. What can we do about it? I suggest we vote against people who put them there, talk to people and convince them to vote in favor of liberty, and if that doesn’t work, well… I’m not sure it’s legal to say what I’m thinking. Oops, more censorship…
I wonder how many of these officials have, as part of their employment agreements, a clause providing that the university (ie, the taxpayers) or its insurance company will indemnify them for any judgments against them incurred in the course of duty? And to what extent a court’s finding against qualified immunity in a given case would get an insurance company off the hook?
Alumni refusing to donate and telling them why send a far more powerful message.
Well said, but even better is when the education establishment gets the message and cleans its own house. Otherwise, you will be accused of financial censorship. Perhaps a better idea is the abolishment of the idea of tenure.
Withholding voluntary contributions is censorship? Such an argument is to be mocked, not taken seriously.
How about suing them over having “black” student unions or “Hispanic” accountants associations. Why not test them, by applying for a while version of all the separtists organizations. Then take on the grivance courses by asking for white history study. LOL at the reaction of the hypocrites.
You need to spend some time on FIRE’s web-site and read some of their cases. Freedom of association cases, which protect things like “black student unions,” have also protected Christian groups from excluding gays. Small campus organizations which are organized around un-popular or un-PC issues need FOA protection against predatory take-overs by campus “activists,” and FIRE has been there for them. Check out their web-site thefire.org. There are some *great* resources available there.
Erg. Meant to write, “have protected Christian groups’ right to exclude gays” (on the basis that it is incompatible with the charter of the group). Sorry for the confusion.
I think I first read about FIRE in the organization’s successful quashing of efforts to brainwash residents of dormitories (with PC/liberal hogwash) at…the University of Delaware ?
All kinds of “mini” powerful people like University presidents seem to feel they have the right to set and enforce rules as a function of placating demands of certain groups or, even, personal whim.
Not to mention Supreme court justices like Stephen Breyer and (we shall see) S. Sotomayor and E. Kagan who seem to think (incredibly) that their own personal versions of living law and a “living” Constitution are superior to referencing that antiquated old document.
The arrogant élitism driving so many in public positions, especially judges, is the defining battle of our times.
Political End Runs
That’s fine, but the real problem isn’t at the Chancellor level. It is at the tenured professor level, in the classroom and grading of papers. The concept of global warming is more widely accepted that the concept that the beer should be cold.
These insulated leeches love the ever expanding concept of hate speech. Some schools will get to the point that to grump at the white wine served in the faculty club will be called hate speech.
What a brilliant approach. The wonder is why it took so long.A cavil of course: Valdosta U , Georgia is one thing. What’s the drill for the “elite” Ivy League and Big Ten most egregious practitioners of censorship, i.e. “political correctness” since the Vietnam War.
While “private” also supported directly and indirectly by taxes, i.e government which, as all lawyers and university presidents know , is the administrative arm for WE THE PEOPLe in the USA. For example the alma maters of ALL those lawyers and politicians of the misnamed “Democratic Party” (and their kissing cousins the RINOs) who also do not understand LIMITS to government in abrogating RIGHTS of American citizens. Rights in addition to First Amendment Rights, protected from interference under the Constitution. VERY strange that these “best and brightest” in universities, Congress,Court and Executive have little appreciation of the NECESSSARY action in their oaths to uphold and defend that US Constitution. Does this explain to some degree the misapprehension of the ethos of the USA so deficient in their students and graduates ?
That one or many of their graduates considers the Constitution flawed, or defective, in this USA, a Country of Law, is not reasonable basis for disregard of that Law. The choice is, as with all other citizens equal under the law, to comply OR to leave the position held. AND if during the tenure in the job, as you are now doing with your FIRE, to be held accountable for any assault or damage to others. After all private companies are continuously held accountable for damages done to those who trusted in the integrity of their products.
Good to see an example of your work.We all know however that the examples that are “teachable moments” are those in which the “big boys”, the “attack dogs” are brought to heel.
THAT give faith to the belief that the USA really is a nation in which ALL are equal under the law.
They could solve there problems to impose what rule they so desire if they just refuse to accept Gov’t Funds. Once a School, University, College Campus accepts Gov’t Funding they are regardless what they wish to say a Public place of Instruction and therefore what rules they seem to feel are there rule that all Student Bodies must abide by is thrown out the window once that first Federal $1 is accepted, Period !!! So the way I see it is either the Universities will change there “policy” on what Students are allowed to say where & when or they no longer accept Tax Payer’s money to fund there research & Development Departments so IMO it’s a easy choice to make for these Universities isn’t it ? From what I can tell from past history is that most College’s, Universities like Public Funding or Gov’t Subsidies to fund their coffers annually along with private monies of course and those to could dry up if these Universities wish to ignore peoples rights !!!
WRT liability insurance for nut-case administrators:
Premiums are set by underwriters who look at, among other things, prior claims. They want “loss runs”, a list of claims in the past such and such number of years from all insurance companies.
An indemnification out of the general fund has some of the same characteristics.
That is, the premiums will rise and the general fund administrator will be unhappy with a nut-case administrator who causes claims.
Presumably, Steps Will Be Taken.
Excellent idea. College presidents have become used to caving into censor happy campus pressure groups. They are far more interested in avoiding trouble and hassle, than in protecting speech rights. But if there is equal pressure, and equal personal risk, on the free speech side, they will have reason to reconsider.
Hmmm.
If I were an impoverished law student looking at no job after graduation and a 6 figure student loan debt I’d certainly consider this as a means of applying law education towards a career.
One of my major gripes all along about FIRE is that they don’t use 18 USC 242 to seek criminal charges against officials who censor. Since the offense is defined as occurring “under color of law,” official immunity doesn’t apply.
18 USC 242 is, I suspect, more an instrument of official policy than a law that applies to everyone under all circumstances, but let’s at least force the government to say so.
Excellent work, FIRE! Thank you for defending free speech.
But this assumes that the “incorporation doctrine” vis-a-vis the 14th Amendment is valid, and even if valid, applies the First Amendment as the author takes for granted.
FIRE is BS. I have first-hand experience.
Care to elaborate? Got a link?
I’m close to retirement at the public college where I work, so I freak everyone out by wishing them a Merry Christmas as we disband for “winter break.”
This article has got me cogitating on a more general level.
Since 42 USC 1983 – the federal statute that monetizes civil rights violations – authorizes civil suits based upon any federal constitutional right, how many such suits have been brought recently against government entities and/or officials for 2nd Amendment violations, now that the Heller decision confirmed the individual right to bear arms (and McDonald incorporated that right against the States)?
Such a suit may include as defendants public college officials, who enforce across the board no-guns-on-campus restrictions. (Even if a campus-wide restriction would be upheld as reasonable, the general class of possible 2nd Amendment-based 1983 suits is intriguing.)
Thank you for that tasty tidbit of knowledge.
This is a sound strategy. Finally it seems the right is learning how effective the legal tactics of the left can be. God help the liberals when the right regularly uses Alinsky style and NAACP tactics to protect themselves.
Right on fire….
Successes here should spill over into other areas until both sides agree to litigation reform.
I am my college professor’s favorite pupil. He calls himself a “philosophical progressive” (whatever that means) and he tells wonderful stories about Mao Zedong and how deeply spirtual it is to become a Progressive. He told us not to pay any attention to those horrible rumors that the Conservatives preach to us about Brother Mao’s murder of 60 million. I know it’s a lie, that’s what a girl on Facebook said. After all, President Obama had a Mao ornamate hanging fron the White House Christmas tree, right on cool. After learning all of these new political ideas, I went out and got the latest Che Guevara t-shirt. It is so rad. My professor went to Harvard like Obama did so I know he loves Che too. My professor said Hollywood helped to revive another leftist martyr but my uncle (who was in the Army) said Hollywood has dutifully churned out yet another cinematic agitprop paean and that I should read to try to discern why many supposedly democratic, civil libertarian liberals still swoon over this Stalinist mass-murderer. What ever that means, later dude.
Interesting that the “Green Light” category includes two Ivy League (Dartmouth, Pennsylvania) and two Public Ivy (Virginia, William & Mary) schools.