The Supreme Court will hear a case Tuesday involving students blocked from proselytizing on their public college campus—a First Amendment case that has united everyone from the ACLU and American Humanist Association to the U.S. Conference of Catholic Bishops.
“We’re unlikely bedfellows,” said American Humanist Association’s Monica Miller, which was one of the first groups that submitted an amicus brief on behalf of the students.
While these groups are often on the opposite sides of Supreme Court cases, bringing them together here is a common goal of vindicating constitutional violations by government officials, said Deborah J. La Fetra. Her group, the libertarian nonprofit law firm Pacific Legal Foundation, also filed a brief in support of Alliance Defending Freedom, the religious non-profit representing the students.
The case involves former college students Chike Uzuegbunam and Joseph Bradford, who say school officials at Georgia Gwinnett College, a public college in Lawrenceville, Ga., violated their First Amendment rights when they stopped them from proselytizing on campus. Uzuegbunam had reserved a spot in the school’s “speech zone.”
After the student sued, the school changed its speech policy. And the lower courts agreed with school officials that the suit was now moot.
The question for the Supreme Court is whether a claim for nominal damages—think $1—can keep the suit alive. Or, as the petitioners put it, whether individuals can seek to vindicate their rights in the court even after the government switches its policy.
Speech, of course, can have a political valence, said Baker Botts’ Scott Keller, who filed a brief on behalf of the conservative student group Young Americans for Liberty. But one thing everyone gets behind is that speech should be robustly protected, he said.
Bait and Switch
Changes in policy post-litigation happen all the time, Miller said. Amicus briefs from the right and the left are replete with examples.
It occurs frequently in the First Amendment space—both speech and religion—and particularly when it is easy to flip the switch, as in a local school ordinance or an unwritten longtime practice, Miller said.
But it isn’t limited to the First Amendment context.
Just last term, the court was confronted with a similar issue in a Second Amendment case dealing with a restrictive New York City ordinance about where lawful gun owners can transport their firearms.
After defending the law in the lower courts, the city—and the state—changed course once the conservative Supreme Court agreed to take up the case. The justices would up dismissing the case as moot.
Dissenting, Justice Samuel Alito said that “it is widely recognized that a claim for nominal damages precludes mootness.” He was joined by Justices Clarence Thomas and Neil Gorsuch—a good sign for the petitioners.
But while it might seem like the government is attempting a bait-and-switch in order to avoid an adverse ruling, Keller—a former government official—said there isn’t anything inherently nefarious about government’s changing their position.
State and local governments want to avoid adverse rulings whenever they can, said the State and Local Legal Centers’ Lisa Soronen, who helped author just one of just two amicus briefs in support of the public university.
The brief argued that a judgment of a constitutional violation can negatively impact bond ratings, insurance costs, and a local government’s ability to receive grants or qualify for other funding programs such as federal community development and transit grants and can “erode citizens’ trust in their local governments and governing officials.”
Those consequences “just don’t make sense when all a person wants is $1,” Soronen told Bloomberg Law.
And apart from the consequences, there are good-faith reasons why a government might change positions, said La Fetra.
Sometimes the government may recognize that the policy is unconstitutional, she said, but other times it could be that the policy was intended to be temporary or that the agency leadership has changed.
Cost of Silence
Regardless of the reason for the change, the issue for the justices is what to do about past constitutional violations.
A change in policy helps people going forward. “But what do you do about injuries that have already occurred?” Keller asked.
Often the only claim left is one for damages, Miller said. In the constitutional context, though, that often doesn’t mean much given that there’s usually no physical harm, she said.
“How does one calculate the monetary harm of being silenced?” La Fetra asked.
Here, the plaintiffs have suggested that they have damages equal to the time traveling to campus to try to speak.
“I don’t know how much money that would be worth to a college student,” Keller said.
And how is that really different from just making a claim for nominal damages? Keller asked.
Alliance Defending Freedom’s Kristen Waggoner will argue her second Supreme Court case on behalf of the students.
The case is Uzuegbunam v. Preczewski, U.S., No. 19-968, argued 1/12/21.