In a significant decision for litigation involving schools and colleges, the U.S. Supreme Court on Monday ruled that a request for nominal damages of as little as $1 can keep a lawsuit challenging a government policy alive even when the agency drops the challenged policy.
The 8-1 decision came in a case brought by two community college students who had sought to express their religious faith on their campus. They ran afoul of the policy of Georgia Gwinnett College that sharply limited First Amendment activity to a small “free speech zone.”
When the students sued, the college quickly dropped the restrictions and sought to toss out the students’ lawsuit as moot. Two lower courts ruled for the college, essentially holding that their plea for a court order to end the policy was no longer necessary and that nominal damages would have no practical effect on the situation.
Writing for the majority in Uzuegbunam v. Preczewski, Justice Clarence Thomas said that an award of nominal damages can by itself redress, or rectify, a legal injury.
“Because nominal damages are in fact damages paid to the plaintiff, they affect the behavior of the defendant towards the plaintiff and thus independently provide redress,” Thomas said.
“True, a single dollar often cannot provide full redress,” Thomas continued, but the ability of a lawsuit to bring about a partial remedy satisfies “redressability,” which is a key element of the doctrine of legal standing.
Chief Justice John G. Roberts Jr. was the lone dissenter, with the case marking the first time during his nearly 16 years on the bench that he issued such a solo dissent in an argued case.
“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,” Roberts said.
A broad array of groups lined up for students
The case was being watched in K-12 education as well in higher-education circles. Many lawsuits are filed against school districts by students and parents challenging a policy or practice, only to have the district change the policy or the student graduate before he or she achieves any “prospective” court action, such as a court injunction to end an unconstitutional policy.
“Without nominal damages, universities and schools can violate students’ rights with impunity, without clarifying the law,” said a brief by, the Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization that represents the two Georgia college students in the case.
Kristen K. Waggoner, who argued the Georgia case on behalf of students Chike Uzuegbunam and Joseph Bradford, said in a statement that “The Supreme Court has rightly affirmed that government officials should be held accountable for the injuries they cause. … Officials within our public institutions shouldn’t get a free pass for violating constitutional rights on campus or anywhere else.”
ADF also frequently represents students in lawsuits against schools over religious expression. Waggoner said ADF had recently represented a student who was barred by school officials from wearing a protective mask that said “Jesus Loves Me.” It is cases like that one where students and parents may only seek nominal damages (as well as injunctive relief) because “it would be very difficult to prove monetary harm” to claim actual damages, Waggoner said.
A broad array of legal and religious groups had filed friend-of-the-court briefs in support of the two students, including the American Civil Liberties Union, Americans United for Separation of Church and State, the Pacific Legal Foundation, and the Christian Legal Society.
“The court’s decision is a win for civil rights,” said Kevin King, a partner with the Covington & Burling law firm in Washington, who filed a friend-of-the-court brief in support of the students on behalf of Foundation for Individual Rights in Education. “By reaffirming that parties may sue even when a violation does not cause easily identifiable harm, this decision will ensure that the courthouse doors remain open to a wide range of civil-rights plaintiffs.”
Georgia, along with government groups that included the National School Boards Association, had argued that a nominal damages claim becomes moot when intervening events end any injury or threat to a plaintiff’s legal rights.
A ‘narrow holding’ or ‘sweeping expansion’ of judicial role?
Thomas cast his opinion as a narrow holding: That for the purposes of legal standing, “nominal damages provide the necessary redress for a completed violation of a legal right.”
In the Georgia case, Thomas said, it was undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when college officials enforced their speech policies against him. Even after Uzuegbunam had gone through the steps to obtain a permit to speak his religious message in the college’s small free-speech zone, a campus police officer told him to stop because his speech had led to complaints. The officer threatened Uzuegbunam with disciplinary action if he continued, and so the student stopped speaking.
“Because every violation of a right imports damage, nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms,” Thomas said.
(The court did not decide whether the second student, Bradford, may pursue nominal damages because he had chosen not to speak in the face of the college’s restrictions and thus it appeared he had not suffered a completed legal injury, Thomas said in a footnote. A lower court should decide whether the college’s enforcement of its rules against Uzuegbunam also violated Bradford’s rights, the justice said.)
In his dissent, Roberts noted that the two students no longer attend Georgia Gwinnett College, the challenged restrictions no longer exist, and the plaintiffs did not allege any actual damages.
“The case is therefore moot because a federal court cannot grant Uzuegbunam and Bradford any effectual relief whatever,” the chief justice said.
Both Thomas and Roberts delved deeply into English and American common-law history for support of their positions.
“The [majority] is correct to note that plaintiffs at common law often received nominal damages for past violations of their rights,” Roberts said. “Those awards, however, were generally limited to situations in which prevailing plaintiffs tried and failed to prove actual damages.”
“Today’s decision risks a major expansion of the judicial role,” Roberts said. “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.”
The chief justice suggested that there was one saving grace to majority’s “sweeping exception” to the normal rules of standing.
“Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims,” Roberts said. “This is a welcome caveat, and it may ultimately save federal courts from issuing reams of advisory opinions.”
Justice Brett M. Kavanaugh joined Thomas’s majority opinion, but in a short concurrence, he said he agreed with Roberts that “that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.”
Lisa Soronen of the State and Local Legal Center, a Washington group that submitted a friend-of-the-court brief in support of Georgia that was signed by the NSBA and other government groups, said the chief justice’s suggestion that agencies pay the dollar to end certain cases could be palatable to some of them.
“The harder question in some of these cases is that the local government agency is not sure whether its policy violates the law and it doesn’t necessarily want to defend it,” she said. “But it doesn’t want the stamp saying, ‘You are a violator. You did something wrong.’”