Pay for your censorship yourself

Robert Shibley Senior Vice President, FIRE
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College administrators may be witnessing the end of an era. The blissful days when they could expel a student and force him to undergo ongoing mental health evaluations for posting a collage about a parking garage on Facebook are rapidly slipping into the past. While the heady rush of spending taxpayer dollars on new departments with armies of underlings may soften the blow, can this really outweigh the bitter realization that one can no longer freely violate a student’s constitutional rights?

I can only imagine the dismay that too many public university administrators across the country felt last week when the United States Court of Appeals for the Eleventh Circuit issued its unanimous decision in the case of Barnes v. Zaccari. After all, the court’s finding that former Valdosta State University (VSU) President Ronald M. Zaccari might be found personally liable for violating the due process rights of former VSU student Hayden Barnes put a price tag on the once-free sport of terrorizing students.

Zaccari’s violation of Barnes’ First Amendment rights dates back to the spring of 2007, when Barnes peacefully protested Zaccari’s plan to spend $30 million of student fee money to construct two parking garages at VSU. In letters and emails to Zaccari and many other members of the university’s student and faculty governing bodies, Barnes expressed concerns about the environmental impact of the garages and offered alternatives to their construction. Barnes also wrote to Zaccari asking for an exemption from the mandatory student fee that would fund the garage construction.

Zaccari decided to make sure that Barnes would never pay that fee again — by expelling him without any notice, any hearing, or any opportunity to defend himself.

Why expel a peaceful protester? Zaccari claimed that Barnes was a “clear and present danger” to both the campus and to Zaccari himself in part because Barnes had posted a cut-and-paste collage on Facebook. The collage included photos of Zaccari and a parking deck, along with the caption “S.A.V.E-Zaccari Memorial Parking Garage.” (S.A.V.E. was a student environmental group that Barnes thought was not doing its job opposing the garage.) This was apparently so threatening that Barnes had to be expelled without a hearing, but not so threatening that he had to go immediately — it was only days after he posted the collage that Barnes was expelled, through a note slipped under his door with a copy of the collage stapled to it. So why not hold a hearing in those intervening days, you ask? The only answer seems to be that Zaccari didn’t feel like it.

In order to be readmitted, Zaccari and VSU demanded that Barnes provide proof of ongoing therapy and certifications of his mental health when he applied for readmission to VSU. One wonders if such psychological efforts might have been more profitably redirected somewhere else.

Having been summarily expelled for constitutionally protected speech, Barnes came to the Foundation for Individual Rights in Education (FIRE, where I work) for help. FIRE took Barnes’ case public and helped him find a lawyer. In September of 2010, a federal district court ruled that Zaccari ignored “clearly established” law when he punished Barnes without notice or a hearing. Because of that, he could not claim the “qualified immunity” defense — which meant that he could be found personally liable for damages to Barnes. Zaccari appealed, and last week, the Eleventh Circuit upheld that removal of qualified immunity.

This finding sends a clear message to university presidents and administrators: if you violate a student’s constitutional rights, you could well pay damages out of your own pocket.

I wonder how many administrators will continue to play fast and loose with individual rights now that the stakes have changed. Their former free-for-all attack on constitutionally protected speech was literally free for all of them. But Barnes v. Zaccari placed giant dollar signs all over the game board. They now risk being liable for breaking the rules — just as you or I would be. Here’s hoping that having some skin in the game will offer the incentive they desperately seem to need to do something as simple as following the law.

Robert Shibley is the senior vice president of the Foundation for Individual Rights in Education (FIRE).