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How to End Abuses of Free Speech on Campus
I am happy to announce that today marks the official end of an eight-year legal saga, as well as a big victory for freedom of speech on campus.
Valdosta State University (VSU) has agreed to pay $900,000 to finally settle the case of Hayden Barnes, a student who was expelled from VSU back in 2007 after posting a collage on Facebook protesting the construction of a campus parking garage (I open my 2012 book Unlearning Liberty with his case).
As I write over at The Huffington Post, one of the most interesting things about the Hayden Barnes case is that the district court found that former VSU president Ronald Zaccari could not take advantage of a defense known as “qualified immunity,” and was therefore personally liable for violating Hayden’s constitutional rights.
What is qualified immunity?
Simply put, if a public official uses his or her official power to violate a citizen’s constitutional rights, he or she only enjoys a “qualified” kind of immunity from personal liability. It is “qualified” in the sense that if the administrator knew or should have known that he or she was violating an individual’s clearly established constitutional right, he or she may be held personally liable for damages inflicted.
If a public employee violates someone’s fundamental constitutional rights in a way that does not warrant the protection of qualified immunity, he should suffer the consequences of his actions. Unfortunately, this is not what usually occurs at most American colleges and universities. Insurance and university policies not only protect administrators from bearing the responsibility of their actions, but actually, in a sense, embolden administrators to violate student and faculty rights. As I write in The Huffington Post:
If individual administrators had to worry for even a second that they might be held personally liable for violating students’ clearly established constitutional rights, you can guarantee one thing: Incidents of abuses of student and faculty free speech and due process rights would plummet. As I explained last year in my announcement of FIRE’s Stand Up for Speech Litigation Project, many administrators choose to overreact to speech because they feel that there is no downside for doing so, whereas there is a host of potential consequences for failing to act, including harassment lawsuits, tort lawsuits, and investigations by the Department of Education. However, administrators’ fear of personal liability would likely often outweigh their fear of these other consequences, making them think twice before violating student and faculty rights.
So what can be done to hold administrators accountable? Here’s what I recommend:
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.
Students, faculty, alumni, and all taxpayers should demand that they not be made to foot the bill for administrators’ constitutional abuses. If you want to learn more about holding administrators accountable, check out my full article over at The Huffington Post and let me know what you think.
Published in General
IMHOthis should be true for all public officials starting with the IRS and VA
Tricky. It could potentially drop public officials right into some nasty no-win situations.
The primary result of making individuals liable is generally that it makes them very risk-adverse and prone to avoid action.
However, in many cases, an individual’s rights are violated not by the actions of a public official but rather by a public official’s inaction.
Imagine a hypothetical public official looking at a hypothetical case file. If the official takes the action prescribed by the law, it would mean violating one of the appellant’s rights, but if the official fails to take any action it would violate another of the appellant’s rights. The only other option in this hypothetical scenario is to take an action prohibited by the law, making the public official a criminal.
This scenario doesn’t seem like it’s very just for the official (and I’d argue that even the most rodent-like public officials deserve some guarantee of justice).
Greg, congratulations, thank you, and I hope the thought of personal liability “chills” the chilling of free speech.
Get ready for a ferocious war. The censors are primarily administrators of bureaucracies dedicated to multiculturalism, diversity, ethnic and gender studies programs, etc. Their ONLY products are speech codes and punitive outcomes for dissenters. You represent an existential threat to some well-paid slackers who have no other marketable skills. When I first heard of free speech zones and speech codes, I wondered how a few cranks had gotten that far with their demented plans. These things are now standard features at many schools. I guess we can hope that the courts will recognize the rights that so many within the academic community turned over with barely a whimper.
I think Elizabeth Warren would support these reforms. She has been pushing for holding officers of business corporations individually liable for criminal behavior by the corporation, and there is also a move to hold corporate officers individually liable in civil cases. I can’t imagine that she wouldn’t want to hold academic corporations to the same standard.
The Reticulator
I think Elizabeth Warren would support these reforms. She has been pushing for holding officers of business corporations individually liable for criminal behavior by the corporation, and there is also a move to hold corporate officers individually liable in civil cases. I can’t imagine that she wouldn’t want to hold academic corporations to the same standard.
I certainly can imagine it. Academics are a sainted class for the left.
(Great work, Greg.)
I can easily imagine it. She is a case study in academic fraud. The system was not broken accidentally. It has been rigged by progressives to put people like Warren in positions of influence over the young. Affirmative action didn’t put a Native American on the Harvard faculty; it put Warren there. Why has she not had to hide in shame since this disclosure? Because the system is working as planned by those who have produced it. Get rid of the scary white guys with their “logocentrism” and get the progressive revision of history in front of kiddies in order to finally overcome this nation’s purpose of liberty for all. She now wants to hold individuals criminally liable for imaginary crimes (the unintended consequences of foolish government regulation). Free speech is her worst enemy.
Misthiocracy, perfect way towards smaller government and free markets, individual responsibility. Get rid of the bureaucrats.
First off – congratulations and gratitude to The F.I.R.E. for your advocacy and support in this case. It is an important case in that it is one of the few times I have seen an academic administrator actually facing personal liability for this type of conduct. I do not know what else will work given the general lack of respect for the individual rights of students attending public institutions.
Second – For any concerns about an erosion of qualified immunity for public officials, this case gives no indications that public officials making good faith efforts to administer and comply the laws are left more vulnerable. Excessive judicial concern about “chilling effect” is precisely what allows these petty tyrants to proceed in confidence that they will not be personally held to account.
This case should not have taken seven years for resolution, and it clearly took very determined advocacy to see it through to the end. Although the case settled, it should be cited extensively as an example and a lesson. Once institutional lawyers have enough “war stories” to raise the possibility of personal liability, administrators may start to think twice about these actions. Heretofore it’s been mainly just theoretical risk.
If you get rid of the bureaucrats, then you have more corruption. Corruption or inefficiency, take your pick. You can also have both, but you can’t have neither.
Reticulate, how is it that less bureaucrats means more corruption?