Amicus Curiae Brief — Chike Uzuegbunam, et al., Petitioners v. Stanley C. Preczewski, et al.

No. 19-968

IN THE

Supreme Court of the United States

_________________

CHIKE UZUEGBUNAM AND JOSEPH BRADFORD,

Petitioners,

v.

STANLEY C. PRECZEWSKI, JANN L. JOSEPH, LOIS C.

RICHARDSON, JIM B. FATZINGER, TOMAS JIMINEZ,

AILEEN C. DOWELL, GENE RUFFIN, CATHERINE

JANNICK DOWNEY, TERRANCE SCHNEIDER, COREY

HUGHES, REBECCA A. LAWLER, AND SHENNA PERRY,

Respondents.

_________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

_________________

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS IN

EDUCATION

IN SUPPORT OF PETITIONERS

_________________

Marieke Tuthill Beck-Coon Kevin F. King

Will Creeley

Counsel of Record

FOUNDATION FOR

Tarek J. Austin

INDIVIDUAL RIGHTS IN

Justin W. Burnam

EDUCATION

COVINGTON & BURLING LLP

510 Walnut Street,

One CityCenter

Suite 1250

850 Tenth Street, NW

Philadelphia, PA 19106

Washington, DC 20001

(215) 717-3473

kking@cov.com

(202) 662-6000

Counsel for Amicus Curiae Foundation

for Individual Rights in Education

March 4, 2020

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................3

ARGUMENT ...............................................................5

I.

II.

THE ELEVENTH CIRCUIT’S RULE

JEOPARDIZES STUDENTS’ ALREADY

PRECARIOUS ABILITY TO VINDICATE

THEIR FIRST AMENDMENT RIGHTS. ...........5

A.

Nominal-Damages Claims Are Often

Students’ Sole Path to Relief from

Unconstitutional Speech Restrictions. ........5

B.

The Eleventh Circuit’s Rule

Threatens Students’ Access to Relief

for Past Violations of Their

Constitutional Rights. ..................................8

C.

The Decision Below Disregards the

Distinctive Role Nominal Damages

Play in Remedying Past

Constitutional Violations. ..........................10

PUBLIC COLLEGES AND

UNIVERSITIES ROUTINELY

INFRINGE STUDENTS’ FIRST

AMENDMENT RIGHTS. .................................. 12

A.

Unconstitutional Speech Policies Are

Prevalent on Campuses Nationwide. ........12

ii

B.

Colleges and Universities Often

Reinstitute Unconstitutional Policies

after Revoking Them to End

Litigation. ...................................................17

CONCLUSION .......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adler v. Duval Cty. Sch. Bd.,

112 F.3d 1475 (11th Cir. 1997) .............................. 6

Bair v. Shippensburg Univ.,

280 F. Supp. 2d 357 (M.D. Pa. 2003)............. 18, 21

Bd. of Sch. Comm’rs v. Jacobs,

420 U.S. 128 (1975) ................................................ 6

Buckley v. Valeo,

424 U.S. 1 (1976) .................................................. 16

Carey v. Piphus,

435 U.S. 247 (1978) ........................................ 11, 12

City of Riverside v. Rivera,

477 U.S. 561 (1986) ........................................ 10, 11

Coll. Republicans at S.F. State Univ. v. Reed,

523 F. Supp. 2d 1005 (N.D. Cal. 2007) ................ 21

Comm. for First Amendment v. Campbell,

962 F.2d 1517 (10th Cir. 1992) ............................ 10

Corder v. Lewis Palmer Sch. Dist. No. 38,

566 F.3d 1219 (10th Cir. 2009) .............................. 6

Dambrot v. Cent. Mich. Univ.,

55 F.3d 1177 (6th Cir. 1995) ................................ 20

iv

Doe v. Madison Sch. Dist. No. 321,

177 F.3d 789 (9th Cir. 1999) .................................. 6

Doe v. Univ. of Mich.,

721 F. Supp. 852 (E.D. Mich. 1989)..................... 21

Fed’n of Advert. Indus. Reps., Inc. v. City of

Chicago,

326 F.3d 924 (7th Cir. 2003) .................................. 7

Fikre v. F.B.I.,

904 F.3d 1033 (9th Cir. 2018) ................................ 7

Flanigan’s Enters., Inc. v. City of Sandy

Springs,

868 F.3d 1248 (11th Cir. 2017) .............. 8, 9, 10, 11

Fox v. Bd. of Trustees of State Univ. of New

York,

42 F.3d 135 (2d Cir. 1994) ..................................... 6

Healy v. James,

408 U.S. 169 (1972) .............................................. 12

Hughes v. Lott,

350 F.3d 1157 (11th Cir. 2003) .............................. 8

Husain v. Springer,

193 F. Supp. 2d 664 (E.D.N.Y. 2002) .................... 6

Husain v. Springer,

494 F.3d 108 (2d Cir. 2007) ................................... 7

Knox v. Serv. Emps. Int’l Union, Local 1000,

567 U.S. 298 (2012) .............................................. 11

v

Los Angeles Cty. v. Davis,

440 U.S. 625 (1979) ................................................ 7

Lowry ex rel. Crow v. Watson Chapel Sch. Dist.,

540 F.3d 752 (8th Cir. 2008) .................................. 7

McCauley v. Univ. of the V.I.,

618 F.3d 232 (3d Cir. 2010) ................................. 20

Olsen v. Rafn,

400 F. Supp. 3d 770 (E.D. Wis. 2019) ................. 21

Prison Legal News v. Fed. Bureau of Prisons,

944 F.3d 868 (10th Cir. 2019) ................................ 7

Pro-Life Cougars v. Univ. of Houston,

259 F. Supp. 2d 575 (S.D. Tex. 2003) .................. 21

Roberts v. Haragan,

346 F. Supp. 2d 853 (N.D. Tex. 2004) ................. 21

Rosenberger v. Rector and Visitors of the Univ.

of Virginia,

515 U.S. 819 (1995) .......................................... 3, 11

Sapp v. Renfroe,

511 F.2d 172 (5th Cir. 1975) .................................. 6

Smith v. Tarrant Cty. Coll. Dist.,

694 F. Supp. 2d 610 (N.D. Tex. 2010) ................. 21

Sossamon v. Lone Star State of Texas,

560 F.3d 316 (5th Cir. 2009) .................................. 7

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019) .................... 12, 19, 20

vi

Sweezy v. New Hampshire,

354 U.S. 234 (1957) .............................................. 12

Town of Portsmouth v. Lewis,

813 F.3d 54 (1st Cir. 2016) .................................... 7

Troiano v. Supervisor of Elections,

382 F.3d 1276 (11th Cir. 2004) .............................. 7

Univ. of Cincinnati Chapter of Young Ams. for

Liberty v. Williams,

No. 1:12-cv-155, 2012 WL 2160969 (S.D.

Ohio June 12, 2012) ............................................. 21

UWM Post, Inc. v. Bd. of Regents of Univ. of Wis.

Sys.,

774 F. Supp. 1163 (E.D. Wis. 1991)..................... 21

Other Authorities

Administrative Office of the U.S. Courts,

United States District Courts—National

Judicial Caseload Profile (2019) ........................... 5

Alex Morey, FIRE, Students, Admins Cite

‘Safe Spaces’ in Seeking Limits to Media

Coverage (Nov. 15, 2015) ..................................... 15

13C Charles A. Wright et al., Federal

Practice and Procedure (3d ed. 2008) .................... 7

Charles T. McCormick, Handbook on the

Law of Damages (1935)........................................ 10

vii

Del. State Univ., Student Judicial Affairs

Handbook: Conduct Standards, Policies

and Procedures (Aug. 2, 2017) ............................. 15

FIRE, All Cases ......................................................... 17

FIRE, Spotlight Database ......................................... 13

FIRE, Spotlight on Speech Codes 2020: The

State of Free Speech on Our Nation’s

Campuses ........................................... 13, 14, 15, 16

La. State Univ., Policy Statement 95: Sexual

Harassment of Students (Apr. 1, 2016) ............... 15

Lake Superior State Univ., Posting Policy ............... 14

Nominal Damages, Black’s Law Dictionary

(11th ed. 2019)........................................................ 8

Portland State Univ., Prohibited

Discrimination & Harassment Policy

(Mar. 15, 2013) ..................................................... 14

Press Release, FIRE, A Great Victory for

Free Speech at Shippensburg (Feb. 24,

2004) ..................................................................... 19

Univ. of Alaska Anchorage, Acceptable Use

Policy .................................................................... 16

Univ. of Chicago, Welcome Letter to 2020

Students ................................................................ 15

viii

Univ. of Mass. Dartmouth, Public Forum

Use of University Facilities (Aug. 24,

2010) ..................................................................... 16

Valdosta State Univ., Information Resources

Acceptable Use Policy (Apr. 29, 2015) ................. 15

Will Creeley, FIRE, Victory for Free Speech

at Shippensburg: After Violating Terms

of 2004 Settlement, University Once

Again Dismantles Unconstitutional

Speech Code (Oct. 24, 2008) ................................. 19

INTEREST OF AMICUS CURIAE 1

The Foundation for Individual Rights in Education (“FIRE”) is a nonpartisan, nonprofit

organization dedicated to promoting and protecting civil liberties at our nation’s institutions of

higher education. Since its founding in 1999,

FIRE has worked to defend student and faculty

First Amendment rights on campuses nationwide.

FIRE believes that, if our nation’s universities

are to best prepare students for success in our democracy, the law must remain unequivocally on

the side of robust free-speech rights on campus.

FIRE coordinates and engages in targeted litigation and regularly files briefs as amicus curiae

to ensure that student First Amendment rights

are vindicated at public institutions. Launched

in 2014, FIRE’s Stand Up for Speech Litigation

Project has coordinated the filing of more than a

dozen lawsuits to challenge unconstitutional campus speech codes.

The students FIRE defends rely on access to federal courts to secure meaningful and lasting legal

remedies for the irreparable harm of censorship. This

case is of interest to FIRE because the Eleventh Circuit’s ruling, if allowed to stand, will undermine

1 Pursuant to Rule 37.6, FIRE affirms that no counsel for a party

authored this brief in whole or in part, and that no person other

than FIRE or its counsel made any monetary contributions intended to fund the preparation or submission of this brief.

Counsel for Petitioners and counsel for Respondents were timely

notified of FIRE’s intent to file this brief and consented to its filing.

2

students’ already precarious ability to vindicate

their First Amendment rights in court.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

The right to speak freely is a priceless freedom.

Nowhere is this more true than on public college and

university campuses, which serve as “vital centers for

the Nation’s intellectual life.” Rosenberger v. Rector

and Visitors of the Univ. of Virginia, 515 U.S. 819, 836

(1995). The decision below threatens the ability of college and university students to vindicate their First

Amendment rights at a time when those rights are increasingly at risk.

Students have few reliable options for securing judicial redress when their free-speech rights are

infringed. Equitable-relief claims are frequently

mooted by graduation or by revision of the challenged

policy, and speech restrictions typically do not inflict

financial injuries warranting claims for compensatory

damages. Nominal damages, which address violations that do not result in substantial financial loss,

are often the only remedy available.

Under the decision below, nominal damages can no

longer fulfill that critical role. If standalone nominaldamages claims are mooted just as easily as claims for

equitable relief, students will be left with little incentive to challenge unlawful speech codes in court.

Student speech rights will become increasingly devalued and colleges and universities will be emboldened

to expand their speech restrictions.

The Eleventh Circuit’s misguided approach also ignores a critical distinction: unlike prospective

equitable relief, nominal damages remedy past violations, not ongoing or potential future wrongs. In this

4

regard, the Eleventh Circuit’s decision fails to appreciate that the deprivation of a constitutional right is

an injustice irrespective of whether it results in monetary loss.

Correcting the Eleventh Circuit’s error is all the

more important because colleges and universities

across the country routinely infringe students’ First

Amendment rights. Vague and overbroad campus

speech policies abound. These policies grant campus

administrators discretion to suppress and punish a

stunning range of speech deemed controversial, inconvenient, or simply unwanted. FIRE has witnessed

this troubling trend firsthand: It has received thousands of reports of censorship on public college and

university campuses and has defended students and

faculty in more than five hundred cases nationwide.

Compounding the problem is the propensity of colleges and universities to re-institute speech

restrictions after executing settlement agreements

that require the restrictions to be eliminated. This

Court’s intervention is needed to protect students’

ability to hold colleges and universities accountable

and to vindicate their priceless First Amendment

rights.

5

ARGUMENT

I. THE

ELEVENTH

CIRCUIT’S

RULE

JEOPARDIZES

STUDENTS’

ALREADY

PRECARIOUS ABILITY TO VINDICATE

THEIR FIRST AMENDMENT RIGHTS.

A. Nominal-Damages Claims Are Often

Students’ Sole Path to Relief from

Unconstitutional Speech Restrictions.

Students burdened by unconstitutional speech restrictions have few reliable options for securing relief.

Their claims for declaratory or injunctive relief are

frequently mooted, either by graduation or by revision

of the challenged policy (or both, in the case of Petitioners here). And because suppression of speech

typically does not inflict financial injuries, students

rarely have viable claims for compensatory damages.

As a result, nominal damages are often the only remedy available.

First, students’ claims for prospective declaratory

or injunctive relief evaporate at graduation. Students

at public colleges and universities enroll in two- or

four-year degree programs, but the median length of

time for resolution of a civil case in federal district

court is between 10.8 and 27.8 months, depending on

whether the case goes to trial. 2 Moreover, the most

outspoken and politically active students tend to be

juniors and seniors, such that those most vulnerable

to enforcement have the least time to secure redress.

2 See Administrative Office of the U.S. Courts, United States Dis-

trict Courts—National Judicial Caseload Profile (2019),

https://www.uscourts.gov/sites/default/files/data_tables/fcms_na

_distprofile0930.2019.pdf.

6

First Amendment claims mooted by graduation

are thus commonplace. See, e.g., Bd. of Sch. Comm’rs

v. Jacobs, 420 U.S. 128, 129 (1975) (graduation

mooted declaratory-judgment claim alleging interference with school newspaper); Corder v. Lewis Palmer

Sch. Dist. No. 38, 566 F.3d 1219, 1225 (10th Cir. 2009)

(valedictorian’s graduation mooted her equitable-relief claims challenging graduation-speech policy); Doe

v. Madison Sch. Dist. No. 321, 177 F.3d 789, 791–98

(9th Cir. 1999) (en banc) (graduation mooted declaratory- and injunctive-relief claims against policy

permitting student prayers during graduation ceremony); Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475,

1478 (11th Cir. 1997) (same); Fox v. Bd. of Trustees of

State Univ. of New York, 42 F.3d 135, 140 (2d Cir.

1994) (graduation mooted equitable-relief claims challenging

regulation

preventing

cookware

demonstration in university dormitory); Sapp v. Renfroe, 511 F.2d 172, 175 (5th Cir. 1975) (graduation

mooted equitable-relief claims challenging mandatory

ROTC training). Colleges and universities can take

advantage of this reality and insulate themselves

from liability by prolonging litigation until student

plaintiffs graduate.

Second, colleges and universities can also moot

claims for equitable relief by revising or disavowing

their policies after the start of litigation. For example,

one such policy change mooted students’ equitable-relief claims in Husain v. Springer, even though the

college’s commitment to the new policy did not extend

“indefinitely into the future.” 193 F. Supp. 2d 664, 670

7

(E.D.N.Y. 2002), aff’d, 494 F.3d 108 (2d Cir. 2007). 3

Students’ First Amendment claims are particularly

vulnerable to dismissal on this basis because courts

apply a relaxed mootness test in suits against government entities, such as public colleges and universities.

Although the general rule is that a defendant’s voluntary cessation moots an action only if “there is no

reasonable expectation . . . that the alleged violation

will recur,” Los Angeles Cty. v. Davis, 440 U.S. 625,

631 (1979) (cleaned up), courts apply “a rebuttable

presumption that the objectionable behavior

will not recur” when a governmental defendant voluntarily rescinds a challenged policy, Troiano v.

Supervisor of Elections, 382 F.3d 1276, 1283 (11th Cir.

2004). 4

Third, restrictions on student speech typically do

not inflict financial injuries, such that compensatory

damages are rarely available. See Lowry ex rel. Crow

3 The Second Circuit reviewed the case on its merits because the

students also pursued claims for nominal damages. See Husain

v. Springer, 494 F.3d 108, 121–34 (2d Cir. 2007). Under the Eleventh Circuit’s rule, those nominal-damages claims would have

been dismissed as moot.

4 See also, e.g., Prison Legal News v. Fed. Bureau of Prisons, 944

F.3d 868, 881 (10th Cir. 2019); Fikre v. F.B.I., 904 F.3d 1033,

1037 (9th Cir. 2018) (“Where that party is the government we

presume that it acts in good faith.”); Town of Portsmouth v.

Lewis, 813 F.3d 54, 59 (1st Cir. 2016); Sossamon v. Lone Star

State of Texas, 560 F.3d 316, 325 (5th Cir. 2009); Fed’n of Advert.

Indus. Reps., Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir.

2003) (“[W]hen the defendants are public officials . . . we place

greater stock in their acts of self-correction, so long as they appear genuine.”); 13C Charles A. Wright et al., Federal Practice

and Procedure § 3533.7 (3d ed. 2008) (“Courts are more likely to

trust public defendants to honor a professed commitment to

changed ways.”).

8

v. Watson Chapel Sch. Dist., 540 F.3d 752, 765 (8th

Cir. 2008) (affirming nominal damages and attorneys’

fees awards to student protesters where “the free

speech right vindicated was not readily reducible to a

sum of money”); Flanigan’s Enters., Inc. v. City of

Sandy Springs, 868 F.3d 1248, 1275 (11th Cir. 2017)

(Wilson, J., dissenting) (“For a number of civil rights

violations (e.g., free speech, procedural due process),

compensable damages may not always exist.”).

Even when enforcement of a speech restriction

against a student may cause an economic injury—for

example, the cost of gas to drive to a designated free

speech zone, the cost of printing flyers, or the cost of a

website registration—the appropriate legal remedy is

often nominal, rather than compensatory, damages.

See Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir.

2003) (“Nominal damages are appropriate if a plaintiff

establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury

sufficient to entitle him to compensatory damages.”);

Nominal Damages, Black’s Law Dictionary (11th ed.

2019) (nominal damages are “[a] trifling sum awarded

when a legal injury is suffered but there is no substantial loss or injury to be compensated”) (emphasis

added).

Students with meritorious First Amendment

claims thus often have only one remedy available:

nominal damages.

B. The Eleventh Circuit’s Rule Threatens

Students’ Access to Relief for Past

Violations of Their Constitutional Rights.

In the decision below, the Eleventh Circuit held

that Petitioners’ claims for nominal damages were

9

mooted by the same events that mooted their claims

for injunctive relief: graduation and a post-suit revision to the college’s speech code. See Pet. App. 3a.

Applying its decision in Flanigan’s, 868 F.3d 1248, the

Eleventh Circuit concluded that, once plaintiffs have

“receive[d] all the [forward-looking] relief they requested,” their “right to receive nominal damages”

remains viable only when accompanied by “a well-pled

request for compensatory damages.” Pet. App. 15a

(quoting Flanigan’s, 868 F.3d at 1264).

Under the Eleventh Circuit’s rule, students’

standalone nominal-damages claims for past violations of their First Amendment rights are mooted just

as easily as claims for prospective equitable relief.

This is because, according to the Eleventh Circuit,

nominal-damages claims do not “have a practical effect on the parties’ rights or obligations” and thus,

absent a continuing violation or live claim for compensatory damages, seek nothing more than an

“impermissible advisory opinion.” Pet. App. 14a.

This rule will reduce the deterrent value of litigation, emboldening colleges and universities to adopt

and enforce more expansive (and constitutionally deficient) speech restrictions. As a result, student

speech rights will become increasingly devalued: Existing speech restrictions will remain on the books,

chilling student speech, and the development of case

law on the constitutionality of university speech codes

will stagnate, making it harder for students to ascertain whether their rights have been infringed. The

decision below thus leaves students with little incentive to invest the time and resources required to

challenge restrictive university speech codes and secure judicially enforced redress.

10

C. The Decision Below Disregards the

Distinctive Role Nominal Damages Play in

Remedying

Past

Constitutional

Violations.

The decision below ignores a critical distinction between prospective and retrospective relief. Unlike

prospective equitable relief, “nominal damages are

about remedying past wrongs, not future ones.” Flanigan’s, 868 F.3d at 1273–74 (Wilson, J., dissenting);

see also, e.g., Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1526 (10th Cir. 1992) (“[T]he

district court erred in dismissing the nominal damages claim which relates to past (not future)

conduct.”). Nominal damages remedy “the infraction

of a legal right . . . where the right is one not dependent upon loss or damage.” Charles T. McCormick,

Handbook on the Law of Damages § 20, at 85 (1935)

(emphasis added); see also id. (“The award of nominal

damages is made as a judicial declaration that the

plaintiff’s right has been violated.” (emphasis added)).

Nominal damages in section 1983 actions ensure

that government officials respect priceless freedoms

where the infringement of those freedoms generally

causes little or no monetary injury. “[A] civil rights

plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in

monetary terms.” City of Riverside v. Rivera, 477 U.S.

561, 574 (1986). Student plaintiffs are no different,

and their rights are no less important. Contrary to

the Eleventh Circuit’s view, vindicating those rights

provides more than just “psychic satisfaction.” Flanigan’s, 868 F.3d at 1268. As this Court has made clear,

civil-rights litigation “serve[s] the public interest” and

11

“secures important social benefits that are not reflected in nominal or relatively small damages

awards.” Rivera, 477 U.S. at 574. “By making the

deprivation of such rights actionable for nominal damages without proof of [compensable] injury, the law

recognizes the importance to organized society that

those rights be scrupulously observed.” Carey v.

Piphus, 435 U.S. 247, 266 (1978).

This Court has also explained that “[a]s long as the

parties have a concrete interest, however small, in the

outcome of the litigation, the case is not moot.” Knox

v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,

307–08 (2012) (cleaned up). Constitutional rights are

no small thing. “A case becomes moot only when it is

impossible for a court to grant any effectual relief

whatever.” Id. Nominal damages are an “effectual”

means of vindicating those freedoms. Id. Indeed, they

are frequently the only remedy available to students

on university campuses, as described above. By finding “no reason to treat nominal and declaratory relief

differently,” the Eleventh Circuit’s rule deprives students of this remedy. Flanigan’s, 868 F.3d at 1268

n.22; see also id. at 1274–75 (Wilson, J., dissenting)

(“[A]s long as the government repeals the unconstitutional law, the violation will be left unaddressed; the

government gets one free pass at violating your constitutional rights.”).

Nominal damages are uniquely important in the

context of colleges and universities. Time and again,

this Court has reiterated the vital importance of First

Amendment rights on public university campuses.

See, e.g., Rosenberger, 515 U.S. at 836 (“For the University, by regulation, to cast disapproval on

12

particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of

the vital centers for the Nation’s intellectual life, its

college and university campuses.”); Healy v. James,

408 U.S. 169, 180 (1972) (“[T]he vigilant protection of

constitutional freedoms is nowhere more vital than in

the community of American schools.”); Sweezy v. New

Hampshire, 354 U.S. 234, 250 (1957) (emphasizing

that, because public universities play a “vital role in a

democracy,” silencing speech in that context “would

imperil the future of our Nation”). Indeed, “[u]niversities have historically been fierce guardians of

intellectual debate and free speech, providing an environment where students can voice ideas and

opinions without fear of repercussion.” Speech First,

Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019).

When acting consistent with the First Amendment, colleges and universities engage students and

faculty in the pursuit of truth, beauty, and innovation.

This engagement benefits not only the students themselves, but society as a whole. By uprooting the most

promising avenue for students to ensure that their

rights are “scrupulously observed,” Carey, 435 U.S. at

266, the Eleventh Circuit’s rule undermines freedom

of expression and thought.

II. PUBLIC COLLEGES AND UNIVERSITIES

ROUTINELY INFRINGE STUDENTS’ FIRST

AMENDMENT RIGHTS.

A. Unconstitutional Speech Policies Are

Prevalent on Campuses Nationwide.

Notwithstanding their professed commitment to

students’ free-speech rights, public colleges and universities across the country have adopted sweeping

13

policies that prohibit expression protected by the First

Amendment. The widespread and long-running nature of this problem further underscores the

importance of the issue presented in this case.

FIRE annually reviews and maintains detailed

records of the speech regulations of more than four

hundred and fifty of the largest colleges and universities in the country. 5 FIRE also publishes an annual

report on the state of free expression on the nation’s

campuses, highlighting noteworthy policies and national trends. FIRE’s latest report, Spotlight on

Speech Codes 2020: The State of Free Speech on Our

Nation’s Campuses, reveals that almost ninety percent of the institutions surveyed maintain either a

“severely restrictive” speech policy that “clearly and

substantially restricts protected speech” or a policy

that could easily be applied to suppress or punish protected expression. 6

These constitutionally deficient policies tend to be

vaguely worded, overbroad, or both. As the following

examples illustrate, campus speech restrictions reach

far beyond the narrow categories of unprotected

speech recognized by this Court’s precedent: obscenity, child pornography, incitement to imminent

lawless action, fighting words, harassment, true

threats, defamation, fraud, and speech integral to

criminal conduct. The restrictions grant campus administrators discretion to silence or punish a stunning

range of student speech the administrators may deem

See Spotlight Database, https://www.thefire.org/resources/

spotlight/.

5

Spotlight Report at 2, 6, https://www.thefire.org/resources/

spotlight/reports/spotlight-on-speech-codes-2020/.

6

14

inconvenient, disagreeable, objectionable, or simply

unwanted—everything from satire and art to political

debate.

Many colleges and universities prohibit offensive

expression irrespective of whether it constitutes actionable obscenity, defamation, or harassment. For

example, Murray State University bans use of its information technology systems—including the campus

Wi-Fi network—in an “offensive, profane, or abusive

manner,” where “[t]he perception or reaction of affected persons is a major factor in determining if a

specific action is in violation of this policy.” Spotlight

Report at 15. The University of Texas at San Antonio

likewise prohibits posting signs that contain “vulgar”

material, without limiting this restriction to speech

unprotected by the First Amendment. See id.

Similar policies abound, including Lake Superior

State University’s ban on “postings deemed offensive,

sexist, vulgar, discriminatory or suggestive” 7; Portland State University’s prohibition of “sexual or

derogatory comments” 8; Louisiana State University’s ban on “offensive language” and “suggestive

Lake Superior State Univ., Posting Policy, https://www.lssu

.edu/campus-life/stay-informed/student-handbook/#toggle-id-5.

7

8 Portland State Univ., Prohibited Discrimination & Harassment

Policy at 2 (Mar. 15, 2013), https://www.pdx.edu/ogc/sites/

www.pdx.edu.ogc/files/Policy_on_Prohibited_Discrimination_

and_Harassment.Final_.pdf.

15

comments” 9; and Valdosta State University’s ban on

“hate-based material.” 10

Universities commonly turn laudable pleas for civility and respect on campus into unconstitutional

mandates. For example, Cheyney University of Pennsylvania prohibits posting “inappropriate” and

“uncivil” content online. Spotlight Report at 19. Delaware State University bans verbal abuse, defined as

“the use of harsh, often insulting language.” 11 Some

universities have expanded their discretion yet further: Northeastern University’s Internet-usage policy

prohibits transmission of any material deemed “annoying” in “the sole judgment of the University.”

Spotlight Report at 20. Officials at other institutions

have similarly sought to suppress protected speech in

the name of creating “safe spaces” free of ideas that

might challenge some students’ feelings or ideological

convictions. 12

9 La. State Univ., Policy Statement 95: Sexual Harassment of Stu-

dents at 2 (Apr. 1, 2016), https://www.lsu.edu/policies/ps/

ps_95.pdf.

10 Valdosta State Univ., Information Resources Acceptable Use

Policy (Apr. 29, 2015), https://valdosta.policytech.com/dotNet/

documents/?docid=83&public=true.

11 Del. State Univ., Student Judicial Affairs Handbook: Conduct

Standards, Policies and Procedures at 34 (Aug. 2, 2017),

https://www.desu.edu/sites/flagship/files/document/21/studentjudicial-handbook.pdf.

See, e.g., Alex Morey, FIRE, Students, Admins Cite ‘Safe

Spaces’ in Seeking Limits to Media Coverage (Nov. 15, 2015),

https://www.thefire.org/students-admins-cite-safe-spaces-inseeking-limits-to-media-coverage/. But see Univ. of Chicago,

Welcome Letter to 2020 Students, https://news.uchicago.edu/sites

/default/files/attachments/Dear_Class_of_2020_Students.pdf

12

16

On occasion, college and university policies go so

far as to prohibit political speech, which this Court

has long considered to lie at the core of the First

Amendment’s protection. See Buckley v. Valeo, 424

U.S. 1, 14 (1976). For example, the University of

Alaska Anchorage’s policy governing e-mail and other

information-technology systems bans posting “[c]ontent related to partisan political activities.” 13

Above and beyond such vague and overbroad restrictions on student speech, many colleges and

universities have established “free speech zones” that

quarantine student demonstrations and other expressive activities to small, typically out-of-the-way areas.

See Spotlight Report at 23–24. While courts have

struck down free speech zones as unconstitutional on

multiple occasions, see infra n.24, they remain commonplace. See Spotlight Report Appendix D: Schools

with “Free Speech Zones” (listing surveyed colleges

and universities with free speech zones). For example, the University of Massachusetts, Dartmouth has

designated just one area on campus as a “public forum

space,” and students wishing to use that space must

inform the campus police “at least 48 hours in advance.” 14

(“[W]e do not condone the creation of intellectual ‘safe spaces’

where individuals can retreat from ideas and perspectives at

odds with their own.”).

Univ. of Alaska Anchorage, Acceptable Use Policy, https://

www.uaa.alaska.edu/about/administrative-services/policies/

information-technology/acceptable-use.cshtml.

13

14 Univ. of Mass. Dartmouth, Public Forum Use of University

Facilities (Aug. 24, 2010), https://www.umassd.edu/policies/

17

While the mere existence of these policies (and the

concomitant threat of discipline) chills student expression, officials are actively enforcing them. Since

its founding in 1999, FIRE has received thousands of

reports of censorship on public college and university

campuses. FIRE has successfully defended student

and faculty rights in more than five hundred cases,

nationwide. 15 In doing so, FIRE has witnessed these

troubling trends firsthand. Students’ First Amendment rights are not just threatened—they are

routinely violated.

Moreover, litigated cases are only the tip of the iceberg. Many students do not realize that restrictions

on their speech are unconstitutional. Those who do

may nevertheless be daunted by the time, monetary

investment, emotional toll, and potential repercussions of pursuing judicial redress. For these reasons,

the vast majority of instances of campus censorship

likely go unreported and unchallenged.

B. Colleges

and

Universities

Often

Reinstitute Unconstitutional Policies

after Revoking Them to End Litigation.

When students do challenge campus speech restrictions in court, one of the chief alternatives to

judgment on the merits—settlement—has often

proven an ineffective means for securing students’

First Amendment rights. Colleges and universities

have repeatedly re-instituted speech restrictions even

active-policy-list/facilities-operations-and-construction/publicforum-use-of-university-facilities/.

15 See FIRE, All Cases, https://www.thefire.org/cases/?limit=all.

18

after executing settlement agreements that require

the restrictions to be eliminated.

For example, a student at California’s Citrus College challenged a policy limiting expressive activities

to three small “free speech areas” and subjecting students to an advance-notice requirement. 16 In 2003,

the college revoked the challenged policies and settled

the suit. 17 In 2013, however, the college adopted a renewed regulation limiting students’ expressive

activities to a narrowly defined free speech area. 18

When a student challenged this nearly identical policy, the college again agreed to revise it in order to

settle the suit. 19

A similar pattern unfolded at Pennsylvania’s Shippensburg University.

There, after students

challenged the university’s speech code, a federal district court issued a preliminary injunction barring its

enforcement. See Bair v. Shippensburg Univ., 280 F.

16 See Complaint ¶ 12, Stevens v. Citrus Cmty. Coll. Dist., No.

2:03-cv-03539 (C.D. Cal. May 19, 2003), available at

https://www.thefire.org/complaint-against-citrus-college-may-19

-2003/.

17 See Resolution of the Citrus Coll. Bd. of Trs. (June 5, 2003),

available at https://www.thefire.org/resolution-of-the-citruscollege-board-of-trustees-june-5-2003/.

18 See Complaint ¶ 2, Sinapi-Riddle v. Citrus Cmty. Coll. Dist.,

No. 14-cv-05104 (C.D. Cal. July 1, 2014), available at

https://www.thefire.org/complaint-in-sinapi-riddle-v-citruscommunity-college-et-al/.

19 See Settlement Agreement, Sinapi-Riddle v. Citrus Cmty. Coll.

Dist., No. 14-cv-05104 (C.D. Cal. Dec. 3, 2014), available at

https://www.thefire.org/settlement-agreement-sinapi-riddle-vcitrus-college/.

19

Supp. 2d 357, 373–74 (M.D. Pa. 2003). The university

then settled the suit, agreeing to repeal the challenged

policies. 20 By 2008, however, the university had readopted the same policies verbatim. 21

Students

challenged the speech code a second time, and the university once again settled and agreed to revise its

policies. 22

Recent litigation challenging the University of

Michigan’s speech policies illustrates the risk that colleges and universities, if left unchecked by the courts,

will reinstate challenged policies. In Speech First, a

group of students challenged the university’s prohibition of “bullying and harassing behavior,” which the

university defined as including “annoy[ing]” someone

“persistently” or “frighten[ing]” a “smaller weaker

person.” 939 F.3d at 762. The policy subjected students to “a range of consequences, including

expulsion.” Id. at 765. Although the university rescinded the challenged restriction in part after

students challenged it in court, the university “continue[d] to defend its use of the challenged definitions”

20 See Press Release, FIRE, A Great Victory for Free Speech at

Shippensburg (Feb. 24, 2004), https://www.thefire.org/a-greatvictory-for-free-speech-at-shippensburg.

21 See Complaint ¶ 28, Christian Fellowship of Shippensburg

Univ. of Pa. v. Ruud, No. 4:08-cv-00898 (M.D. Pa. May 7, 2008),

available at https://www.thefire.org/legal-complaint-againstshippensburg-university-2008/.

22 See Will Creeley, FIRE, Victory for Free Speech at Shippens-

burg: After Violating Terms of 2004 Settlement, University Once

Again Dismantles Unconstitutional Speech Code (Oct. 24, 2008),

https://www.thefire.org/victory-for-free-speech-at-shippensburgafter-violating-terms-of-2004-settlement-university-once-againdismantles-unconstitutional-speech-code/.

20

and refused to make a commitment not “to reenact”

them. Id. at 769, 770. Observing that the university

had “simply not [provided] a meaningful guarantee”

that its new definitions “will remain the same in the

future,” id. at 769, the Sixth Circuit vacated the district court’s denial of the students’ motion for

preliminary injunction, see id. at 771. Only after this

ruling did the university commit, in a settlement

agreement, to refrain from later “reinstat[ing] the removed [harassment] definitions.” 23

Repeat violations of students’ First Amendment

rights are less likely when students have the ability

to litigate their claims to judgment the first time

around. Such judgments—even if supported only by

an award of nominal damages—create precedent that

clarifies the law and deters colleges and universities

from re-instituting unlawful policies.

Although violations of students’ free-speech rights

are seldom challenged in court (and violations that are

challenged often become moot or result in settlement

agreements), many cases have been litigated to judgment over the past three decades. These decisions—

which come from circuits that do not follow the Eleventh

Circuit’s

outlier

mootness

rule—have

consistently struck down campus speech codes on

First Amendment grounds. 24 Students’ successes in

See Settlement Agreement, Speech First, Inc. v. Schlissel,

No. 18-cv-11451 (E.D. Mich. Oct. 25, 2019), available at

https://speechfirst.org/wp-content/uploads/2019/10/SettlementAgreement-signed.pdf.

23

24 See McCauley v. Univ. of the V.I., 618 F.3d 232 (3d Cir. 2010)

(declaring university speech policy overbroad); Dambrot v. Cent.

21

these cases, coupled with the reality that campus censorship remains prevalent nationwide, confirm that

access to the courts remains as important as ever for

students to vindicate their constitutional rights.

Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) (declaring discriminatory harassment policy overbroad and unconstitutionally vague);

Olsen v. Rafn, 400 F. Supp. 3d 770 (E.D. Wis. 2019) (enjoining

enforcement of unconstitutionally vague speech and assembly

policy); Univ. of Cincinnati Chapter of Young Ams. for Liberty v.

Williams, No. 1:12-cv-155, 2012 WL 2160969 (S.D. Ohio June 12,

2012) (enjoining enforcement of unconstitutional “free speech

zone” policy); Smith v. Tarrant Cty. Coll. Dist., 694 F. Supp. 2d

610 (N.D. Tex. 2010) (enjoining enforcement of overbroad “cosponsorship” policy); Coll. Republicans at S.F. State Univ. v.

Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853

(N.D. Tex. 2004) (declaring speech policy overbroad); Bair v.

Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of overbroad speech policies); Pro-Life

Cougars v. Univ. of Houston, 259 F. Supp. 2d 575 (S.D. Tex. 2003)

(declaring speech policy regulating “potentially disruptive”

events unconstitutional); UWM Post, Inc. v. Bd. of Regents of

Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring

harassment policy overbroad and unconstitutionally vague); Doe

v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (finding

harassment policy overbroad and unconstitutionally vague).

22

CONCLUSION

For the reasons set forth above and in the petition,

the Court should grant the petition for a writ of certiorari.

Respectfully submitted,

Marieke Tuthill Beck-Coon Kevin F. King

Will Creeley

Counsel of Record

FOUNDATION FOR

Tarek J. Austin

INDIVIDUAL RIGHTS IN

Justin W. Burnam

EDUCATION

COVINGTON & BURLING LLP

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March 4, 2020