Back in 2002, I decided to join the fight against campus speech codes because I considered them to be the principal threat against liberty in the 21st Century. I was also concerned that Abraham Lincoln was right when he said that looking at our schools today is a good way to see what the nation will look like in twenty years. I knew that speech codes had to be defeated in order to avoid a situation in which citizens were easily deprived of their rights because they were never aware of them in the first place.
At the time I joined this fight, it seemed like every public university had an unconstitutional speech code. Today, that number is more like 67%. One of the main reasons for the improvement is the efforts of a group called the Foundation for Individual Rights in Education, or FIRE. And now, FIRE has crafted an ingenious plan that promises to build on its momentum and make unconstitutional speech codes the exception, rather than the rule, at America’s public universities.
FIRE has put hundreds of university presidents and university attorneys on notice that their wallets could be hit if they violate the free speech rights of students on their campuses. What they are trying to do is to attack the use of qualified immunity, which is used to exempt administrators from personal liability for monetary damages.
By sending nearly 300 certified letters to public university administrators across the nation, they are directly challenging the most dangerous problem in higher education today; namely, the continued shielding of those who knowingly violate the First Amendment in defiance of well-established law.
It is bad enough that public university administrators have been shredding the First Amendment for decades in order to ensure that their own political, social, and religious views will be advanced without challenge. It is far worse that the taxpayers have been footing the bill when they have been caught doing so. But that is all about to change.
Recently, some judges have been deciding that college administrators are not shielded from personal liability in cases involving gross violations of the First Amendment. The case of Valdosta State University student Thomas Hayden Barnes is illustrative. Barnes was expelled in 2007 after he peacefully protested plans by then-President Ronald Zaccari to use $30 million in student activity fees to build two parking garages. The court decided the infringement was so gross that a reasonable administrator could not have been unaware of the illegality of the expulsion.