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.
The recent spate of letters sent by FIRE will ensure that other similar rulings follow. The legal doctrine of qualified immunity only 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.
For years, public universities have argued that their speech codes did not violate clearly established law regarding students' First Amendment rights. But for the past generation, we have seen one legal decision after another striking down these codes. Having seen registered letters informing them of the decisions, administrators will no longer be able to argue that “a reasonable person in their position” would not have known the law.
FIRE is now able to add another recent precedent to the long list of cases that will help undercut the doctrine of qualified immunity. In McCauley v. University of the Virgin Islands, the United States Third Circuit Court of Appeals in 2010 struck down policies banning "offensive" or "unauthorized" signs as violations.
FIRE is also citing these important decisions in its letters:
•DeJohn v. Temple University, where the Third Circuit invalidated a university sexual harassment policy for being overly broad and vague in violation of the First Amendment;
•Dambrot v. Central Michigan University, where the Sixth Circuit declared a university discriminatory harassment policy to be obviously unconstitutional;
•College Republicans at San Francisco State University v. Reed, where a federal court enjoined enforcement of a university civility policy that placed the supposed right to be unoffended above the First Amendment.
Adam Kissel of FIRE summarizes the position of FIRE nicely when he states that the organization has found an appropriate balance between the carrot and stick approaches to dealing with university administrators. First, they offer online suggestions for public universities that have at least one policy that clearly and substantially restricts freedom of speech. The suggestions show them what they need to do to comply with the law.
But if they will not listen, there is strong language in these registered letters meant to awaken their conscience to their duty to obey the law. For example, FIRE says: "You must be aware that maintaining university policies that prohibit constitutionally protected expression is an unlawful deprivation of constitutional rights under 42 U.S.C.S. § 1983 for which university administrators may be sued in their individual capacities for punitive damages.”
The letter continues: "Given the sparkling clarity of the case law with regard to the unconstitutionality of speech codes at public universities, please be advised that claims of immunity from personal liability put forth by individual university administrators will likely be unsuccessful."
The approach of FIRE will work in the same way that capitalism works better than socialism; namely, through reliance on private ownership and individual interest. In other words, it is a strategy that attaches real consequences to individuals with power, rather than to an esoteric and powerless collective.
Campus speech codes are no longer public property inherited by unknowing public servants. The speech codes now belong to those who oversee their maintenance. And they ignore them at their own peril.
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