Dispatches from the Creation Wars

No Immunity for Valdosta State President

This is actually a couple months old but I missed it at the time. You may remember the appalling case of a Valdosta State University student being expelled for criticizing the president of the university’s plan to build a $30 million parking structure with student fees. He is being represented by the Foundation for Individual Rights in Education (FIRE), one of my favorite organizations these days.

So in September, the judge in the case refused to grant personal immunity from civil suit to the university president, Ronald Zaccari. You can view the ruling here (PDF).

In general, public officials are given qualified immunity, meaning that they can be sued only in their professional capacities but not as individuals. But the qualification is that this immunity goes away if their actions violated a clearly established right — if they should have known that their actions were a violation of the constitution. And in this case, the president damn well should have known.

The ruling details numerous meetings called by Zaccari that included school counselors who had worked with the student, Hayden Barnes, who suffered from agoraphobia, and the school’s legal counsel. The therapists repeatedly told Zaccari that there was no basis for believing Barnes was any threat to him based on the criticism he had made and the legal counsel told him repeatedly that if the school expelled Barnes, he would have a strong suit against him.

Zaccari insisted on expelling him from school anyway, and insisted on doing so without allowing Barnes a hearing to defend himself or challenge the decision. The court blasts Zaccari’s position:

The court is unpersuaded by Zaccari’s argument that he is entitled to qualified immunity because he “sought out legal advice” from Gaskins and Neely and relied on their advice. The law is clearly established in the Eleventh Circuit that “due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” Moreover, the court finds Zaccari’s assertion that he relied upon the advice of Gaskins and Neely disingenuous. The undisputed facts show that Zaccari ignored the lawyers’ warnings that withdrawing Barnes would require due process in executing his administrative withdrawal of
Barnes. The court declines to accept Zaccari’s argument that because he sought legal advice from Gaskins and Neely, both of whom advised against the President’s withdrawal of Barnes, Zaccari is still entitled to qualified immunity even though he took action contrary to the advice.

FIRE is using this ruling to warn the leadership at public universities around the country that they could be found personally liable for constitutional violations caused by hate speech codes at those schools. Hope that message sinks in, but I’m not holding my breath. There are few things more entrenched than the concept of hate speech restrictions at universities in the United States. They lose in court every time yet they still persist.