Law & Courts

Supreme Court Considers Issue of Damages That Comes Up in Many Suits Over School Policies

By Mark Walsh — January 12, 2021 6 min read
BRIC ARCHIVE

The U.S. Supreme Court on Tuesday took up a thorny legal question out of a case about student speech on college campuses that has practical consequences for a range of legal challenges to school district policies.

In Uzuegbunam v. Preczewski (Case No. 19-968), the court is deciding whether a government agency’s lawsuit-prompted change to an allegedly unconstitutional policy is enough to make that suit moot when the challenger seeks only nominal damages, such as $1, as opposed to so-called compensatory damages designed to redress specific injuries.

Civil rights and religious rights groups that often represent students in challenges to school policies have joined in supporting two Georgia community college students who sued over their institution’s limits on free speech, then sought nominal damages of $1 when the college dropped the policy.

“Without nominal damages, universities and schools can violate students’ rights with impunity, without clarifying the law,” Kristen K. Waggoner, a lawyer representing the two community college students for the Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization that often represents students in K-12 schools, told the court in a brief.

The groups cite dozens of cases challenging school policies and stress that some of those challenges an become moot because students age out of school before the suits can be fully resolved.

On the other side, the National School Boards Association joined with state and municipal groups in supporting Georgia Gwinnett College. They argue that allowing a nominal damages claim when the challenged policy has been withdrawn or changed would allow plaintiffs to get an advisory opinion on essentially a hypothetical question, something the federal courts do not provide since they decide only live cases or controversies.

A friend-of-the-court brief signed by the NSBA said some of the arguments in support of the students “would allow large, well-funded advocacy organizations to intimidate, through the threatened cost of litigation, small local governments and school districts into changing laws or policies that may be legally defensible—and still collect fees to boot.”

Free-Speech Patio and Sidewalk

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 two small speech zones, one small a patio and the other a sidewalk.

When Uzuegbunam did get a permit and reserve the area, a student complained about his sharing of his faith and campus police cited him for disorderly conduct, court papers say. A second student, Joseph Bradford, alleged his speech was chilled by the college’s policy. The two students sued under the First Amendment, seeking nominal damages and an end to the policy.

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 students’ 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, in 2019 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.” Several other federal appeals courts to address the issue have allowed challenges to altered government policies to proceed based on nominal damages.

During some 90 minutes of telephone arguments on Jan. 12, the justices questioned both sides sharply.

Chief Justice John G. Roberts Jr. asked Waggoner about cases in which there have been no compensable legal injuries and the alleged unconstitutional policy will not continue into the future.

Roberts said that if a judge then concludes the plaintiffs don’t have standing and, “‘I’ve got to throw the case out.’ And you say: ‘Oh, well, throw in a buck.’ And then the judge is supposed to say: ‘Yeah, well, everything’s fine now’?

Waggoner said that “providing money damages of any amount is significant in that it provides redress for the parties and an enforceable judgment on the merits.”

Hashim M. Mooppan, a counselor to the U.S. solicitor general who was also arguing in support of the students, said, “Having your speech suppressed or being subject to a threat of suppression of speech is a paradigmatic [legal] injury.”

Several justices told Waggoner and Moopan that the federal courts are not around to provide advisory opinions or simply vindicate rights when there has been no legal injury.

“What we have are 400 million laws, actions, policies, and let’s take the subset where we don’t know whether it violates the Constitution or not,” said Justice Stephen G. Breyer. “If you bring the courts into every single case, they would spend an awful lot of time adjudicating those cases, though nobody is really hurt.”

But later, Breyer suggested to Andrew A. Pinson, the lawyer defending Georgia Gwinnett College, that nominal damages might be an appropriate remedy in the students’ case.

“A college says: ‘You can’t pray here, young student.’,” Breyer said. “And imagine that policy is unconstitutional. And suppose he was stopped from praying. What’s the damage? Can you say there was no damage? There was. But what is it? How do you measure it? I don’t know.”

Justice Elena Kagan asked Pinson about a case in which the singer Taylor Swift filed a civil suit against a radio DJ who had allegedly sexually assaulted and battered her by groping her bottom. Swift sought only $1 in nominal damages, and a federal jury in Colorado in 2017 found for the singer and awarded her the amount she sought.

“It’s the most famous nominal damages case I know of in recent time,” Kagan said, adding that Swift’s message seemed to be, “‘I’m not really interested in your money. I just want a dollar. And that dollar s going to represent something both to me and to the world of women who have experienced what I’ve experienced.’”

Pinson, the solicitor general of Georgia, said that Swift “may have only asked for a dollar of it, but she alleged clear compensable injuries and so the jury could award that dollar in response.”

Kagan said, “I thought you might say that, but then why isn’t that the same as this? The petitioner here [Uzuegbunam] said he was harmed. He wasn’t able to speak when he should have been able to speak. And, you know, whether it’s hard monetize or it’s not hard to monetize, he is just asking for a dollar to redress that harm.”

Justice Amy Coney Barrett suggested to Pinson it seemed incongruent that plaintiffs may seek statutory damages under certain federal consumer laws, such as $100 per violation of the Telephone Consumer Protection Act, which bars some unauthorized text messages, but not get nominal damages for a violation of one’s free speech rights.

“So you concede the damages for receiving a couple annoying texts but not for having your First Amendment rights violated?” she said.

Pinson replied, “You can’t seek nominal damages for the bare violation of First Amendment rights. You can seek compensatory damages.”


Pinson said the way this case was resolved following the students’ lawsuit was a good thing.

“Litigation prompted college officials to review their policies, and just 10 weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for [the challengers] but for all students,” he said.

“And it even led to an enduring statewide policy change for every public college in Georgia,” Pinson added. “That kind of early out-of-court resolution should be encouraged. And keeping nominal damages in their limited historical role does that, while still allowing existing mootness doctrine to guard against bad faith or strategic moving.”

A decision in the case is expected by late June.

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