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.