Two Kinds of Immunity

Because state university administrators are state officials, they will usually defend not only on the facts but on the legal ground that Section 1983 principles confer immunity from being sued, especially for money damages.  There are two types of immunity that they may claim: absolute or qualified.  Defendant officials whose actions against the plaintiff were judicial, prosecutorial, or legislative in nature, they are absolutely immune regardless of how illegal their conduct was.  End of case. 

But when university officials act in an administrative capacity, as in expelling students, they can claim only qualified immunity, not absolute.  This means that the immunity can be overcome if the plaintiff shows that the officials did not act in good faith in the sense that the right claimed by the plaintiff - here, a right to a due process hearing before expulsion --was "clearly established" by the legal precedents when the officials acted. Valdosta's immunity defense failed because Barnes was able to show that his right to a hearing before being expelled for protected activity was indeed "clearly established."  In certain situations, plaintiffs who prevail in their Sec. 1983 actions can recover their legal fees as well, which Barnes will try to do.

Verdicts like these should certainly capture the attention of university presidents.  What is less clear is whether Barnes' victory will cause them to be more respectful of campus dissenters' First Amendment rights.  Here are five reasons to doubt that public universities will change their self-protective ways.  First, the Valdosta decision was hardly the first successful challenge to suppressions of campus dissent, yet earlier victories seem not to have caused universities to be more tolerant of it.  Second, the $50,000 jury award seems like a small amount - a slap on Zaccari's wrist -- given the flagrant violation of Barnes' constitutional rights and the presumed interruption of his education (though I have not examined the damages evidence presented to the jury).This liability would hardly rate a footnote in most university budgets.

Boards Don't Like to Undercut Presidents

Third, university presidents are powerful people on campus and, like many powerful people in all walks of life, can become authoritarian when they feel threatened.  This is particularly true when the university trustees support them, which is usually the case.  The governing boards of public institutions set broad policy, hire the top officials, determine their salaries, and thus can call the shots on many important issues.  They will be reluctant to undercut the president with whom they are closely identified.  They also tend to have strong political connections - this is probably why they were selected in the first place - and are responsive to state legislators and governors who may also want to suppress student or faculty criticism of the university, which often reflects on themselves. 

A fourth reason to doubt that the Valdosta case will induce universities to strongly protect authority-threatening dissent is that the universities often win in court.  Barnes' case may be unusual in that it was particularly strong on both the facts and the law.  His actions, after all, were peaceful and clearly protected by the First Amendment, and Vaccari expelled him without a constitutionally-required hearing.  In many other cases, however, plaintiffs may lose, perhaps because the university can offer some other, ostensibly legitimate reason for its action. 

Consider the protracted Ward Churchill case in which the University of Colorado's Board of Regents terminated Churchill, a tenured professor, on the ground that he had plagiarized and engaged in other professional misconduct.  This September, five years after Churchill sued the Board for violating his First Amendment rights, the Colorado Supreme Court held that the Board was immune because the right that Churchill invoked was not "clearly established."(Some facts in the case suggest that the Board may have used his professional misconduct as a kind of pretext for the real, original reason for terminating him -- that he had compared some 9/11 victims to Nazis Adolf Eichmann).The outcomes of such cases are hard to predict because the line between protected academic freedom and legitimate administrative prerogatives is not well-defined.

But the most worrisome reason why some universities violate the First Amendment rights of dissenters is that so many of them marinate their campuses in political correctness and group-think, most of it predictable left-wing orthodoxy. While paying lip service to academic freedom and diversity, academic institutions often seem willing to sacrifice those precious values in favor of collegiality, convention, and campus peace.  Public universities are particularly eager to propitiate the powers that be -- the public officials who govern them, the taxpayers who fund them, and the media through whom they reach the voters - while private universities have their own sacred cows to protect.  Alas, we can look forward to more Valdosta cases in the future.

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Peter H. Schuck is Simeon E. Baldwin Professor of Law Emeritus, Yale Law School. 

(Photo: Hayden Barnes. Credit: FIRE).