The College Fix

Chief justice alone ignores inherent harm of constitutional violations

The Supreme Court has steadily expanded the reach of First Amendment rights under Chief Justice John Roberts. His project has been so successful that it left him behind for the first time Monday.

Eight justices overturned a ruling by the 11th U.S. Circuit Court of Appeals that threw out an evangelical student’s lawsuit against Georgia Gwinnett College for unconstitutionally silencing his religious expression.

In oral argument in January, justices expressed skepticism that public officials, such as administrators at taxpayer-funded colleges, could escape liability for injuries that are hard to quantify in monetary terms, such as constitutional violations.

The majority opinion, written by Justice Clarence Thomas, confirmed that plaintiffs seeking only “nominal damages” (one dollar) could sue to vindicate their rights, without having to claim measurable economic harm. A legal publication said it was the first solo dissent for Justice Roberts since he joined the high court.

Georgia Gwinnett officials twice shut down Chike Uzuegbunam as he spoke on campus, the first time because he was proselytizing outside a “free speech zone” that required a permit to use, and subsequently because his permitted speech nonetheless led to complaints from passers-by.

The college “quickly abandoned” its argument that the student’s religious expression amounted to unprotected “fighting words,” as the court said, and removed the policies under which Uzuegbunam was silenced and threatened with discipline. It then claimed the case was moot, setting up the legal question of whether nominal damages alone could sustain a lawsuit.

MORE: SCOTUS skeptical students must ‘monetize’ First Amendment violations

“There is no dispute that Uzuegbunam has established the first two elements” required for legal standing – that he suffered injury “traceable” to the actions of college officials, the opinion said: “The only question is whether the remedy he sought—nominal damages—can redress” the undisputed violation of his constitutional rights.

The court didn’t resolve whether an allied proselytizer, Joseph Bradford, could seek nominal damages because it wasn’t clear from the record that college officials violated his rights. Bradford claimed they unconstitutionally chilled his evangelism by threatening to punish Uzuegbunam. Bradford’s claim will go back to the trial court.

It was the latest SCOTUS win for the Alliance Defending Freedom, which represented the students. General Counsel Kristen Waggoner said in a statement:

When government officials engage in misconduct without consequences, it leaves victims without recourse, undermines the nation’s commitment to protecting constitutional rights, and emboldens the government to engage in future violations. We are pleased that the Supreme Court weighed in on the side of justice for those victims.

The Foundation for Individual Rights in Education, which supported Uzuegbunam’s position among an ideological cross-section of advocacy groups, praised the ruling for recognizing “the importance of nominal damages claims for students.”

Because students are likely to graduate before a court weighs in – and colleges can simply change their policies after they get sued – these taxpayer-funded institutions “routinely infringe student speech rights” and escape accountability, Vice President of Litigation Darpana Sheth said in a FIRE statement.

‘Avoided the oddity of privileging small-dollar economic rights’ 

The parties in the litigation agreed that “courts at common law routinely awarded nominal damages” but parted ways on “what kinds of harms those damages could redress,” specifically on “retrospective relief,” Justice Thomas wrote.

The majority opinion cited several rulings from the 19th century that affirmed “every legal injury necessarily causes damage” and awarded “nominal damages absent evidence of other damages.” A dissent in an 18th-century English common law case on voting rights came to be influential in American jurisprudence: Justice Joseph Story noted that “the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right.”

Arguing against Roberts’ dissent, which claimed the majority was drastically expanding the reach of courts, the majority said it wasn’t surprising that the availability of nominal damages was “not universally followed” in common law.

Even among such courts, “many adopted the rule in full whenever a person proved that there was a violation of an ‘important right,'” Thomas wrote:

By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights [such as due process and voting rights].

MORE: Left and right unite to demand SCOTUS punish Georgia Gwinnett

Roberts and college officials made the baseless argument that plaintiffs have to allege compensatory damages in order to receive nominal damages, the majority said. “Nominal damages are not a consolation prize” for plaintiffs who can’t prove measurable economic harm: “They are instead the damages awarded by default until the plaintiff establishes entitlement” to other damages.

The view that nominal damages are “purely symbolic” is not backed by legal history, Thomas contended. The high court has already held that an award of nominal damages constitutes “relief on the merits” of a plaintiff’s claim and affects “the behavior of the defendant towards the plaintiff.”

The chief justice provides “no citation” for his argument that nominal damages are just the runner-up for failed compensatory claims, according to the majority: Courts no longer have jurisdiction once a claim fails. Unlike attorney’s fees, “nominal damages are redress, not a byproduct” of litigation, Thomas wrote, noting that “early courts routinely awarded nominal damages alone. Certainly, no one seems to think that those judgments were
without legal effect.”

By wringing his hands over the possibility that courts would now intervene “whenever a plaintiff asks for a dollar,” Roberts uselessly distinguishes between nominal damages and “one dollar in compensation for a wasted bus fare to travel to the free speech zone,” the majority said. (Justice Neil Gorsuch floated an even lower threshold for compensatory damages in oral argument: a 25-cent bus receipt.)

Thomas scolded his colleague for seemingly ignoring the fact that Congress eliminated the “statutory amount-in-controversy requirement for federal-question jurisdiction” more than 40 years ago. The high court has “never held that one applies as a matter of constitutional law,” either.

‘Turning judges into advice columnists’

Roberts’ dissent is shockingly dismissive of the harm caused by violations of constitutional rights. It emphasized that “Uzuegbunam and Bradford are no longer students,” the policies they challenged “no longer exist,” and they haven’t “alleged actual damages.”

He warned that the high court was ignoring Alexander Hamilton’s defense of the federal judiciary, as envisioned in the Federalist Papers, as the “least dangerous” part of government because it has “neither FORCE nor WILL.”

The majority would have the judiciary answer “every question” under the Constitution and federal statutes, regardless of whether it can issue “effectual relief,” Roberts claimed: This is an invitation to issue “advisory opinion[s]” disconnected from any case or controversy.

Pleading nominal damages alone, and receiving that award, “represents a judicial determination that the plaintiffs’ interpretation of the law is correct—nothing more,” the chief justice wrote: “The Court sees no problem with turning judges into advice columnists.”

MORE: Student sues college for calling his evangelism ‘disorderly conduct’

The majority makes irrelevant comparisons to English common law, which had a long practice of letting “the Crown … solicit advisory opinions from judges,” Roberts said: “A focus on common law analogues cannot obscure the significance of the establishment of an independent Judiciary.”

He shot back at his eight colleagues who defended nominal damages as more than “a consolation prize.” That is exactly what they are, Roberts claimed, “awarded as a hook to allow prevailing plaintiffs to at least recover attorney’s fees and costs.”

The chief justice scoffed at their reliance on the 18th-century dissent in the voting rights case, which was overturned in the House of Lords not because of the “eloquence” of the dissenter but as “collateral damage in a Whig-Tory political dispute.”

He accused his colleagues of relying on “a handful of indeterminate sources to justify a radical expansion of the judicial power. … I would require more before bursting the bounds of Article III,” which sets forth the jurisdiction of federal courts.

MORE: Court lets college off the hook for punishing student for sharing his faith

MORE: College that squelched student speech under court supervision for a year

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