There are 296 American public officials at grave risk of being personally sued for civil rights violations. The names of those who may soon be paying out of pocket for civil damages include some of America’s most respected citizens, who every day manage multi-million dollar budgets and massive numbers of government employees with little oversight and even less accountability. Can you guess who they are?
They are the presidents of many of America’s largest and most prestigious public colleges and universities.
It may not occur to many Americans that the president of a public university is, in many ways, a government employee like any other. Granted, they tend to wear fancy suits, live in mansions, and sometimes even have what amount to private jets for their own personal use, but when it comes to the Constitution, they are legally bound to respect it just as much as your local sewer district commissioner.
Unfortunately, too many of them don’t seem to have gotten the memo about their obligations under the Bill of Rights. So over Christmas week, the Foundation for Individual Rights in Education (FIRE), where I work, sent it to them.
In a letter to 296 public college and university presidents and general counsel, FIRE warned that the law is increasingly clear that speech codes at public universities are unconstitutional and that they risk being held personally liable for violating the free speech rights of their students if they continue to maintain policies censoring speech. That goes for all of their administrative employees as well, from deans and provosts to lower-level student affairs officials.
The 296 college administrations that received the letter consist of all of the schools deemed to have “red-light” and “yellow-light” speech codes by FIRE’s latest report on campus speech restrictions: Spotlight on Speech Codes 2011. This fifth edition of the annual report reveals that speech codes on public campuses are slowly declining in number. Three years ago, 79 percent of public colleges had red-light speech codes, compared to “only” 67 percent today. However, it also revealed that new threats to free speech are on the horizon thanks to proposed “anti-bullying” laws like that introduced in Congress by Senator Frank Lautenberg (D-NJ).
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.
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