In September, I wrote about a legal victory in the remarkable case of Hayden Barnes, a former student at Georgia's Valdosta State University (VSU) who was kicked out of his college for protesting a planned parking garage complex. As justification for expelling him, the university cited only a collage he had placed on Facebook, which criticized the environmental impact of the proposed garages.
Back when I found out about it in 2007, this case was easily among the worst I've ever seen -- and that's saying quite a bit, given how many student rights cases that I've been involved in over the past ten years. But the federal district court's decision in September showed me that the facts of the case were even worse than I thought.
According to the decision, VSU President Ronald Zaccari ignored the advice of his top administrators who warned him that punishing Barnes would violate the First Amendment, the Constitution's guarantee of due process rights for students, and the university's own contractual promises of fair procedures. Despite these warnings, Zaccari even ordered an investigation "into Barnes's academic records, his medical history, his religion," and his records with the campus psychological counseling center. When his staffers reported back to Zaccari that Barnes--a decorated emergency medical technician and Buddhist--was a threat to no one, Zaccari unilaterally decided to kick Barnes out anyway.
Having determined the facts, the federal district court decided that Zaccari had no claim to the defense of qualified immunity. Public employees enjoy immunity from liability for violating the constitutional rights of others only if they can honestly say they did not and should not have known they were violating a constitutional right. Here, not only was it quite clear to any public campus administrator that you can't kick out a student without a hearing for simply protesting a parking garage without violating the Constitution, according to the district court opinion, Zaccari was actually told as much by other administrators. There is no protection from personal financial liability for a state official who acts as a rogue agent and violates the constitutional rights of a student, nor should there be.
Unsurprisingly, Zaccari has appealed this decision to the United States Court of Appeals for the Eleventh Circuit. My organization, the Foundation for Individual Rights in Education (FIRE), which has been fighting for Barnes since 2007, has put together a spectacular coalition of organizations from across the political and ideological spectrum to explain to the Eleventh Circuit why the Barnes case is so important in an amici curiae ("friends of the court") brief.
The coalition includes: the American Booksellers Foundation for Free Expression, the American Civil Liberties Union of Georgia, American Council of Trustees and Alumni, the Cato Institute, the Electronic Frontier Foundation, Feminists for Free Expression, the Individual Rights Foundation, the Libertarian Law Council, the National Association of Scholars, the National Youth Rights Association, the National Coalition Against Censorship, Reason Foundation, Students For Liberty, and the Southeastern Legal Foundation. You can see the amicus brief we submitted Monday on behalf of Barnes here. The fact that so many important national organizations are concerned about Barnes' case will hopefully catch the attention of the Eleventh Circuit.
There is a great deal at stake in this appeal. If the Eleventh Circuit upholds the district court's finding against President Zaccari, it will send a powerful message to college administrators across the country that they cannot abuse the rights of their students with impunity. Such an appellate level decision could be a powerful force in rebalancing the legal incentives on campus in favor of student free speech and due process. If, however, the Eleventh Circuit decides that this violation of student rights was not sufficient to pierce qualified immunity, it would send the worst possible message to administrators around the country. After all, if kicking a student out of school without any meaningful due process for simply exercising his First Amendment rights despite the fact Zaccari received numerous warnings that such an act might violate the Constitution isn't sufficient to pierce qualified immunity, it is very hard to imagine what would be.
A loss in this case would be a loss for student rights and for accountability among campus administrators. My fingers are crossed that the decision will go the right way, and I hope that the amicus brief we submitted Monday will help persuade the Eleventh Circuit to make the right decision.