Constitutional rights are priceless—someone should tell the 11th Circuit
Nowhere is the attack on constitutionally protected freedoms more evident than on college campuses—the purported marketplace of ideas—where administrators and faculty are more concerned with protecting students from new ideas than encouraging learning and growth. This “snowflake culture” is perpetuated by those in the rarified air of the ivory tower that leaves some university officials feeling they can do no wrong.
That’s why my employer, Alliance Defending Freedom, filed a lawsuit two years ago on behalf of Chike Uzuegbunam and Joseph Bradford, two now-former students at Georgia Gwinnett College. And it’s why we have now asked the U.S. Supreme Court to take their case.
In 2016, Chike was exercising his First Amendment rights, sharing his Christian faith by leafleting and talking to students outdoors at Gwinnett. Officials stopped him because he was not in one of the two, tiny speech “zones” the college set aside for expressive activities. Open only about 10 percent of the week, these zones comprised about 0.0015 percent of campus. And they required an advance reservation through which Gwinnett officials must approve the content of the speech and any handouts. Any expressive activity outside the zones required a permit.
Discouraged but unbowed, Chike made a reservation, obtained approval from the administration, and took his evangelization efforts to a speech zone. But officials quickly stopped him again. Why? Because someone had complained. And under the college’s speech code, anyone who “disturbs the peace and/or comfort of person(s)” on campus is guilty of “disorderly conduct.” To avoid punishment, Chike was forced to stop speaking about his faith anywhere on campus. Joseph self-censored after hearing how officials mistreated Chike.
When university officials violate their students’ constitutional rights, students often must go to court to obtain vindication. At the very least, vindication means telling the parties and the public that a wrong has been committed. This is true even if the constitutional violation did not result in any financial injury. When the government violates a person’s constitutional rights, a court cannot possibly undo the damage already done. Our constitutional rights represent our most precious freedoms. And depriving someone of those rights—even for a short amount of time—inflicts an injury that is irreparable.
But irreparable does not mean unworthy of a court’s time and attention. Quite the opposite. Our constitutional freedoms are priceless. And they’re not just priceless to us as individuals. They’re priceless to society. Without the protections our Constitution guarantees, government would be free to choose winners and losers in the marketplace of ideas, among various forms of religions and non-religion, and among people based on their sex, race and ethnicity. None of us want to live in a world like that. Everyone should support the courts’ responsibility to adjudicate constitutional harms, even in the absence of any financial injury.
Most courts fully embrace that role: eight federal courts of appeal have all held that plaintiffs challenging past constitutional violations can have their day in court. That remains true even if the only relief sought is a ruling in their favor and “nominal damages,” a symbolic (and therefore small) sum of money signifying that irreparable harm has been inflicted.
But not the 11th Circuit. In the case we’re appealing, the court of appeals upheld a lower court decision booting our clients out of court. No court even addressed our clients’ claims that college officials violated their free speech rights by stopping them from sharing their faith with other students on campus. Rather, they held that our clients’ claims had no value because one student graduated and because college officials changed their speech policies in the middle of the litigation.
That ruling was wrong. And the 11th Circuit refused to correct the mistake. So, we’re asking the Supreme Court to hear our case and reaffirm that constitutional freedoms are priceless. Plaintiffs shouldn’t have to put a dollar sign on their rights just to earn their day in court.
If the Supreme Court allows the 11th Circuit’s ruling to stand, people in Alabama, Florida, and Georgia whose rights have been violated by the government in ways that do not involve financial injury will find the courthouse doors closed. Government and university officials will be free to violate people’s rights with impunity. And courts will be forced to turn a blind eye to clear constitutional violations. The Supreme Court should review the case and declare that federal courts remain open when college officials enforce snowflake policies that violate students’ constitutional rights.
John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom (@AllianceDefends), which represents Chike Uzuegbunam and Joseph Bradford. Bursch served as Michigan’s solicitor general from 2011-2013.
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