Case preview: Justices to consider effect of change in government policy on cases seeking symbolic damages
on Jan 8, 2021 at 12:00 pm
The Supreme Court will hear oral argument on Tuesday in a case questioning whether a lawsuit seeking only symbolic damages can go forward after the government changes the unconstitutional policy being challenged, or whether the case is instead moot – that is, no longer a live controversy. The issue comes to the justices in Uzuegbunam v. Preczewski, a dispute over religious speech on the grounds of a Georgia college, but the court’s ruling could have implications well beyond academia.
The events leading to the lawsuit now before the Supreme Court began in July 2016, when Chike Uzuegbunam, an evangelical Christian and a student at Georgia Gwinnett College, a public college located in the Atlanta suburb of Lawrenceville, was handing out religious literature on an outdoor plaza outside the campus library. A campus police officer told Uzuegbunam that distributing anything there violated the college’s “freedom of expression” policy, which generally required students to reserve one of two designated areas – a sidewalk and an outdoor plaza – to hand out literature, give speeches, gather or march. The areas were normally available for use for four hours a day Monday through Thursday, and for two hours on Friday; they were closed on weekends. Once a student reserved a “speech zone,” that student was not allowed to reserve it again for at least 30 days – even if no one else was using the zone.
But when Uzuegbunam later reserved one of those zones to hand out literature and speak to students about his religious beliefs, a campus police officer asked him to stop, explaining that Uzuegbunam had not reserved the zone for “open-air speaking.” Noting that campus police had received some calls about Uzuegbunam, the officer also told Uzuegbunam that he was violating the college’s ban on “disorderly conduct” because his speech was disturbing others.
Uzuegbunam stopped speaking and, fearing discipline from the college, did not try to speak or hand out literature again. Instead, he filed a lawsuit in December 2016 in federal district court against several college officials and police officers. Joseph Bradford, another student at the college who says that he wanted to share his faith but was afraid to do so because of the college’s policies, later joined the lawsuit. They argued that the college’s policies violated the First Amendment, and they asked for a declaration that the policy was unconstitutional, an order prohibiting the college from enforcing it, nominal damages – that is, symbolic damages, such as a dollar – and their costs and attorney’s fees.
A few months after the lawsuit was filed, the college changed its policy to allow students generally to speak anywhere on campus without a permit. Uzuegbunam graduated from the school in August 2017, and Bradford has also graduated. In May 2018, the district court dismissed the case, concluding that the case was moot. The claims that Uzuegbunam and Bradford had made for nominal damages, the district court reasoned, were not enough to allow the case to continue.
In an unsigned opinion, the U.S. Court of Appeals for the 11th Circuit upheld the district court’s ruling. Uzuegbunam and Bradford then asked the Supreme Court to weigh in, which it agreed in July to do.
The students’ arguments
In their brief on the merits at the Supreme Court, Uzuegbunam and Bradford urge the justices to reinstate their challenge and allow it to continue. A case is moot, they write, only when the court can no longer grant any relief. Claims for damages provide a remedy for past injuries, they explain. This includes, they say, nominal damages, which courts award when a plaintiff’s rights have been violated but the plaintiff cannot prove the extent of his losses or the violation does not necessarily involve a monetary loss or damage. When the government changes its policies or conduct going forward in response to a plaintiff’s lawsuit, the students continue, that action does not provide a remedy for past injuries. And so as long as the parties have some interest in the outcome of the case, it is not moot – even if the interest is as small as a $5 fine.
In this case, the students argue, their case is not moot because their claims for nominal damages stem from their allegations that college officials and police officers violated their constitutional rights by limiting or stopping their speech. Even though the college changed its policy, leaving the students free to speak going forward, that change does not erase the past violations of the students’ rights – for which the only remedy is nominal damages.
More broadly, the students suggest, the officials’ position in this case boils down to the argument that they “can violate constitutional rights without consequence if the harm is not quantifiable or compensable.” Moreover, they added, if the Supreme Court were to agree with the 11th Circuit that a claim for nominal damages, standing alone, is not enough to allow a lawsuit to continue, then plaintiffs would not be able to recover their attorney’s fees, which would discourage “litigants and attorneys from pursuing constitutional claims that lack a compensatory-damages component, expanding opportunities to violate constitutional rights.”
The students push back against the idea that allowing claims for nominal damages to go forward even after the policy at the heart of a lawsuit has been changed will create an incentive for plaintiffs to run up large legal bills. First, they note, the point of an award of attorney’s fees is to provide an incentive “to pursue a meritorious suit and ensure the unlawful policy does not return.” Second, even if a plaintiff prevails in its claim for nominal damages, that only makes him eligible for an award; it does not necessarily mean that he will receive one.
It is particularly important for the Supreme Court to make clear that the students can recover nominal damages for the violation of their free-speech rights in this case because, the students say, “nearly 90% of public colleges and universities have adopted policies that are either clearly unlawful or constitutionally suspect under the First Amendment.” Claims seeking to block a school from enforcing its policies going forward are likely to become moot after the students graduate, the students stress, and the school may change them when a lawsuit is filed. Moreover, the students add, these kinds of policies rarely cause the kind of harm for which students can recover compensatory damages.
The students also warn of another possible side effect of a ruling against them. If claims for nominal damages become moot after the school changes its policies, they contend, it will also make it harder for plaintiffs to prevail in the future when school officials assert that they are protected by qualified immunity, because courts will not weigh in on the constitutionality of the policies and there will not be a body of “clearly established” law to make clear to officials in the future that their conduct is wrong.
The students enjoy support from a wide range of “friends of the court” briefs. In addition to the federal government, which assures the justices that cases seeking only nominal damages will be “relatively rare,” other briefs come from both ends of the ideological spectrum (and many in between). On the conservative side, the Foundation for Moral Law, the nonprofit affiliated with former Alabama Supreme Court Chief Justice Roy Moore, who was forced out of office after he refused to remove a Ten Commandments monument from the court building, stresses the importance of protecting religious liberty. On the liberal side, the American Humanist Association, which advocates for secular humanism and the separation of church and state, tells the justices that, if they affirm the lower court’s ruling, they “will be telling Congress, the Executive Branch, every State, and every municipality in our nation that it is proper to experiment on our liberties by passing laws that violate the First Amendment.” The humanist association frequently opposes the conservative Christian group representing the students – the Alliance Defending Freedom – including two years ago in a Supreme Court case about a cross on public land. Here, however, the two groups are aligned on the same side.
The college’s arguments
The college officials, represented by the Georgia attorney general’s office, explain that the policies that the students challenge have been “permanently” changed to allow the students “to share their faith at any time and place on campus without limitation — just what they sought to achieve through their lawsuit.” The students, the officials stress, therefore agree that their claims to block the college from enforcing the old versions of the policies are moot; their claims for nominal damages, the officials argue, are similarly moot.
The Constitution, the officials contend, only gives federal courts the power to decide cases that have “real stakes for the parties, not abstract disputes.” A case becomes moot, they continue, when a court is no longer able to grant the kind of “practical relief” that will provide a remedy for the plaintiff’s injury.
Nominal damages, the officials reason, are not simply “a small amount of compensatory damages.” Instead, they are “a legal symbol that the plaintiff gets zero compensation for a past injury.” Therefore, the officials conclude, when a plaintiff seeks nominal damages, the case can go forward only if the plaintiff is trying to protect his legal rights from future injury. Otherwise, they say, if there is no possibility of continuing or future injury, nominal damages can’t provide any relief.
In this case, the officials stress, the students didn’t ask for damages to compensate them for any injuries that they suffered when the school enforced its policies; instead, they asked for a dollar in nominal damages. But all that dollar would do, the officials observe, is give the students “the satisfaction of having a federal court say they are right” – which, in the absence of any possibility of future injury, is the kind of advisory opinion that is not a live controversy for purposes of the Constitution.
The officials caution the justices that allowing the students’ case to go forward will have sweeping consequences for the mootness doctrine, effectively “swallowing” it in any case in which nominal damages are available. Specifically, they contend, lawsuits would not be moot as long as a plaintiff could allege a violation of his constitutional rights in the past; the plaintiff would not need to show that he was actually injured or that he could be injured again. Moreover, the officials added, there are other remedies – such as injunctions and declaratory relief, as well as compensatory damages – to address violations of the Constitution.
Last year, in New York State Rifle & Pistol Association v. City of New York, the Supreme Court sent a challenge to New York City’s restriction on the transport of guns back to the lower court, reasoning that the case was moot after the city changed the rule. Justice Samuel Alito dissented from that decision, noting (among other things) that if the Supreme Court were to rule for the challengers on the merits, the challengers “would be eligible for nominal damages.” “And it is widely recognized that a claim for nominal damages,” Alito wrote, “precludes mootness.” Both Justice Neil Gorsuch and Justice Clarence Thomas joined that part of Alito’s dissent, suggesting that the students will find some sympathetic ears at next week’s oral argument – and that interest in the case will likely go well beyond the education context.
This post was originally published at Howe on the Court.