Supreme Court to Weigh ‘Nominal Damages’ Issue Often Seen in School Lawsuits

By Mark Walsh — July 09, 2020 3 min read
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The U.S. Supreme Court on Thursday granted review in a case that raises a procedural question with significant practical implications for the types of constitutional lawsuits often brought against public schools and colleges.

The court agreed to decide whether a government agency’s change to an allegedly unconstitutional policy is enough to make a lawsuit challenging that policy moot when the plaintiff seeks only nominal damages, as opposed to a larger claim for compensation.

The grant in Uzuegbunam v. Preczewski (Case No. 19-968) came on the last day of the court’s term and the case will be argued sometime in the term that starts next October.

The case stems from a challenge to a public college’s policy limiting free expression to designated “free speech zones.” Student Chike Uzuegbunam sought to share his Christian faith at Georgia Gwinnett College when officials told him he had to get a permit and reserve time for the college’s speech zone, which was one small patio and sidewalk.

When Uzuegbunam did reserve the area, a student complained about his speech and campus police cited him for disorderly conduct, court papers say. He and a second student who alleged his speech was chilled by the college’s policy sued under the First Amendment. The suit sought an end to the policy and nominal damages.

While the case was pending, the college dropped its speech code and amended it speech zone policy. It asked a trial court to throw out the students’ suit as moot, which the court did. The court also turned down the student’s request to amend their lawsuit to seek so-called compensatory damages, those that repay specified losses.

The U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld the finding that the students’ case was moot because their claim for nominal damages would not “have a practical effect on the parties’ rights or obligations.”

The students appealed to the Supreme Court, backed by the Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization that frequently sues school districts. over student speech and other issues.

They argue that nominal damages are an important basis for pursuing civil rights claims, and that government agencies often change policies that have been challenged even after some plaintiffs have suffered constitutional violations.

The issue especially comes up in education, where students cycle out of school after a few years and any claims for “equitable relief,” such as an order to end an illegal policy, evaporate with graduation.

“Without nominal damages, universities and schools can violate students’ rights with impunity, without clarifying the law, and with the cover of qualified immunity,” lawyers for the Georgia students told the high court.

Several federal appeals courts have taken different approaches to the issue, but the 11th Circuit court’s rule that a case for nominal damages is moot if the challenged policy has changed is the outlier, the students’ brief says.

The appeal cites nine or 10 cases involving lawsuits against K-12 school districts, many involving alleged infringements on student speech, in which nominal damages were the only remaining claim. In some cases, circuit precedent dictated that the lawsuit be allowed to continue, while in others, case law was more ambiguous and the suits were dismissed as moot.

For example, the U.S. Court of Appeals for the 10th Circuit, in Denver, allowed a student’s lawsuit to go forward based on nominal damages that challenged sanctions for her high school valedictory address that discussed Jesus Christ in defiance of a draft she had submitted to school officials. (That appeals court nonetheless upheld the school’s decision to withhold her diploma.)

The lawyers for the Georgia college students told the high court that “in eight circuits, [the students’] nominal-damages claims would have kept this case alive. Only the 11th Circuit maintains a position that allows government officials to evade accountability for their misconduct and closes federal courts to many citizens who seek to vindicate their priceless constitutional rights.”

The Georgia attorney general’s office filed a brief on behalf of the officials sued by the students. The brief argued that the college had changed its speech policies and the students’ otherwise moot lawsuit could not be saved by their claims for nominal damages.

“The issue that divides the circuits is narrow and not likely to recur with any frequency,” the state argued.

The justices were evidently not convinced, and they will take up the students’ case next term.

A version of this news article first appeared in The School Law Blog.