SCOTUS, 8-1: You better believe students can sue colleges over "speech zone" First Amendment violations

That gasp heard after this ruling dropped comes from every college and university with a “free speech zone” and policies that impose heckler’s vetoes. Plaintiffs suing over restrictions on speech and religious expression on campus only need to establish “nominal damages” to gain standing, the Supreme Court ruled in an 8-1 decision, not necessarily actual damages. That opens up a vast new field of litigation that attorneys all across the country will rush to meet.

The 8-1 ruling in Uzuegbunam v Preczewski from Justice Clarence Thomas does not actually settle the case in favor of the students, but the writing is on the wall for Georgia Gwinnett College:

(a) To establish Article III standing, the Constitution requires a plaintiff to identify an injury in fact that is fairly traceable to the challenged conduct and to seek a remedy likely to redress that injury. Spokeo, Inc. v. Robins, 578 U. S. 330, 338. The dispute here concerns whether the remedy Uzuegbunam sought—nominal damages—can redress the completed constitutional violation that he alleges occurred when campus officials enforced the speech policies against him. The Court looks to the forms of relief awarded at common law to determine whether nominal damages can redress a past injury. The prevailing rule at common law was that a party whose rights are invaded can always recover nominal damages without furnishing evidence of actual damage. By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging small economic rights over important, but not easily quantifiable, nonpecuniary rights. Pp. 3–8.

(b) The common law did not require a plea for compensatory damages as a prerequisite to an award of nominal damages. Nominal damages are not purely symbolic. They are instead the damages awarded by default until the plaintiff establishes entitlement to some other form of damages. A single dollar often will not provide full redress, but the partial remedy satisfies the redressability requirement. Church of Scientology of Cal. v. United States, 506 U. S. 9, 13. Respondents’ argument that a plea for compensatory damages is necessary to confer jurisdiction also does not square with established principles of standing. And unlike an award of attorney’s fees and costs which may be the byproduct of a successful suit, an award of nominal damages constitutes relief on the merits. Pp. 8–11.

(c) A request for redress in the form of nominal damages does not guarantee entry to court. In addition to redressability, the plaintiff must establish the other elements of standing and satisfy all other relevant requirements, such as pleading a cognizable cause of action. Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms. The Court does not decide whether Bradford can pursue nominal damages and leaves for the District Court to determine whether Bradford has established a past, completed injury. Pp. 11–12.

Normally, a plaintiff would have to establish at least some level of real damages to have standing in a lawsuit. Thomas rules here, and gets a surprising amount of consensus, that the violation of a core constitutional right is essentially enough of real damage to grant standing. However, as Thomas points out, plaintiffs still have to meet the other requirements, such as particularized injury and a cognizable cause of action:

This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury); plead a cognizable cause of action, Planck v. Anderson, 5 T. R. 37, 41, 101 Eng. Rep. 21, 23 (K. B. 1792) (“if no [actual] damage be sustained, the creditor has no cause of action” for some claims); and meet all other relevant requirements. We hold only that, for the purpose of Article III standing, nominal damages provide the necessary redress for a completed violation of a legal right.

Applying this principle here is straightforward. For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because “every violation [of a right] imports damage,” Webb, 29 F. Cas., at 509, nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.*

Surprisingly, the one dissent came from Chief Justice John Roberts, who complained that Article III access could now be bought for a dollar:

The Court resists this conclusion, holding that the petitioners can keep pressing their claims because they have asked for “nominal damages.” In the Court’s view, nominal damages can save a case from mootness because any amount of money—no matter how trivial—“can redress a past injury.” Ante, at 1. But an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to. If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar. Because I would place a higher value on Article III, I respectfully dissent. …

Today’s decision risks a major expansion of the judicial role. Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice.

Thomas dismisses this criticism as missing the point:

Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.

The dissent worries that after today the Judiciary will be required to weigh in on legal questions “whenever a plaintiff asks for a dollar.” Post, at 9. But petitioners still would have satisfied redressability if instead of one dollar in nominal damages they sought one dollar in compensation for a wasted bus fare to travel to the free speech zone. The dissent “would place a higher value on Article III” than a dollar. Post, at 1; but see Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 305 (2008) (ROBERTS, C. J., dissenting) (“Article III is worth a dollar”). But Congress abolished the statutory amount-in-controversy requirement for federal-question jurisdiction in 1980. Federal Question Jurisdictional Amendments Act, 94 Stat. 2369. And we have never held that one applies as a matter of constitutional law.

In a sense, they both have it right. Plaintiffs will start seeking out judicial penalties on those who infringe on core constitutional rights, and likely in great numbers, after this ruling on Uzuegbunam. That should have colleges and universities very, very worried — and might be the first real set of consequences for Academia after decades of forcing speech codes and silence on their students. Just the added risk of ending up in federal court might be enough of an incentive to force these universities and colleges to recalculate risk and reward.

Let’s hope that recalculation comes quickly, and both dissent and religious expression return to campuses as fast as possible.

Update: Alliance Defending Freedom represented the plaintiff in this case, but their senior counsel noted just how much consensus formed around their position:

A wide variety of advocacy groups, including the ACLU, the Catholic Church and the American Humanist Association, called for such an outcome in briefs filed with the court. They noted that constitutional rights cases often involve only nominal damages claims, since it’s hard to quantify how much it costs someone to be silenced or forced to hide their faith.

“We aren’t often all on the same side of issues, but we all recognize that it’s important that priceless constitutional rights are protected,” said Kate Anderson, senior counsel for Alliance Defending Freedom, the law firm representing Uzuegbunam, to the Deseret News in January.

Moving forward, it will be easier to ensure that institutions and individuals that violate someone’s constitutional rights will be forced to acknowledge their error and adopt a better approach moving forward, she added.

“Alliance Defending Freedom has had to file lawsuits against some universities multiple times,” she said. “It’s important to get a legal resolution that tells colleges they can’t engage in this kind of behavior.”

That message came through loudly and clearly. Perhaps even loudly and clearly enough for Academia’s elites.

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Jazz Shaw Apr 12, 2021 2:31 PM ET