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SCOTUS to decide whether constitutional rights can be violated without consequence

Greg Nash

In America, our constitutional rights are sacred. They lie at the heart of our republic, and all governments actors must respect them. But what if government officials could violate our rights without any legal consequences?

That’s exactly what happened outside of Atlanta, which is why the U.S. Supreme Court will be hearing arguments in Alliance Defending Freedom’s case, Uzuegbunam v. Preczewski, on Jan. 12.

Chike Uzuegbunam was a student at Georgia Gwinnett College. During his time in college, Chike became a very passionate Christian. This changed his life for the better, and he wanted to share that same joy with others. So, like many college students, he shared his passion with passersby in an open area of campus.

Campus officials stopped Chike from sharing the Gospel, informing him that college policy only allowed public expression in one of two, tiny “speech zones” for this activity. These speech zones collectively amounted to about 0.0015 percent of campus and required an advance reservation. (For context, if the campus was a football field, the speech zones were the size of a piece of notebook paper.)

Despite this discouraging development, Chike remained determined to share his faith, so he jumped through the hoops to comply with the policy. While standing in the right place at the appointed time, Chike was stopped yet again when two campus officials alleged that someone did not like Chike’s religious speech. The officials ordered Chike to stop, threatening disciplinary action if he continued speaking in the “speech zone.”

Alliance Defending Freedom filed a lawsuit on Chike’s behalf shortly thereafter, in December 2016. Initially, the college insisted that Chike’s expression on campus was not protected by the First Amendment at all. Later, perhaps noting their clear error, college officials changed their policies in a weak attempt to stay out of hot water in court.

College officials clearly violated Chike’s rights. But the district court allowed them to get away with it, dismissing the case because the policy was revoked and because Chike had graduated, after spending his final semesters of college banned from sharing his faith as he desired. The U.S. Court of Appeals for the 11th Circuit affirmed.

This is terribly unjust. If government officials can violate our rights and get off the hook without consequence, then our rights aren’t worth very much. That’s not how our American justice system is supposed to work.

Under the 11th Circuit’s ruling, Georgia Gwinnett College is essentially free to reenact its unconstitutional speech restrictions until another student finds the courage to file a lawsuit like Chike’s. In fact, ADF has had to sue some universities multiple times because they have done exactly that.

This is why courts must order the government to pay nominal damages to plaintiffs like Chike. Nominal damages redress a constitutional injury when a plaintiff is unable or does not want to put a dollar figure on a lost right, and we need nominal-damages awards to ensure that our rights are scrupulously observed. If citizens cannot obtain meaningful redress when the government acts unlawfully, our rights will be violated more frequently. A right that cannot be enforced is no right at all.

In our increasing polarized times, it’s worth noting that this is a lawsuit where major legal organizations of diverse ideological stripes all agree. Over two dozen groups have filed amicus briefs supporting Chike, including the ACLU, Christian Legal Society, the American Humanist Association, and the Council on American-Islamic Relations.

These numerous organizations recognize what’s at stake: a government with the power to violate Chike’s freedoms has the power to violate the rest of our constitutional rights too, such as our freedom from unreasonable searches and seizures, our right to religious freedom, and more.

The 11th Circuit is the only appellate court in the country to rule as it did on the legal question of nominal damages, and it clearly erred. Americans are entitled to nominal damages when their fundamental rights are violated, and courts are obliged to act accordingly. The Supreme Court should rule in favor of Chike Uzuegbunam and ensure that our constitutional rights are scrupulously protected. No officials should get a free pass when they violate our priceless constitutional liberties.

John Bursch is senior counsel and vice president of appellate advocacy at Alliance Defending Freedom (@Alliance Defends), which represents Chike Uzuegbunam in Uzuegbunam v. Preczewski.


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