Supreme Court Silences Institutional ‘Wokeness’
COMMENTARY: The court’s 8-1 decision in Chike Uzuegbunam v. Preczewski is a victory for religious freedom.
The Supreme Court on Monday decided Chike Uzuegbunam v. Preczewski. It’s a huge victory for religious freedom and strikes a blow against the tyranny of campus speech codes.
In 2016, Chike Uzuegbunam was enrolled at Georgia Gwinnett College, a public college 30 miles outside Atlanta. He wanted to talk about his Christian faith with other students and hand out religious literature in one of the college’s outdoor plazas but was told by campus police that doing so was against college policy.
Uzuegbunam went to the person directly responsible for the school’s policy, Gwinnett’s “Director of the Office of Student Integrity.” The school official told him that he could only speak about his religion in two designated “free speech expression areas” on campus — and only with a permit to do so.
Undeterred, Uzuegbunam applied for and was given a permit to use the school’s free speech zone. Shortly after he began speaking on the day allowed by the permit, a campus police officer told him to stop. Someone had filed a complaint and, under campus policy, the free speech zone could not be used for anything that “disturbed the peace and/or comfort of person(s).” The officer threatened the student with disciplinary action if he continued. Uzuegbunam stopped speaking.
Uzuegbunam and another student who also wanted to evangelize on campus sued Gwinnett school officials in federal court. They argued that the policies violated the First Amendment and asked the court to stop the school from enforcing the policies. They also sought nominal damages. (Side bar: Unlike compensatory damages, which are tied to calculable loss, nominal damages are a small sum, typically $1, awarded to a plaintiff whose “loss” is not measurable in economic terms.)
Initially Gwinnett defended its policy, claiming that Uzuegbunam talking about his religion was equivalent to “fighting words.” (Another side bar: The “fighting words doctrine” is a limitation on the free speech protection of the First Amendment. Established by the Supreme Court in its 1942 decision in Chaplinksy v. New Hampshire, the doctrine provides that “insulting or ‘fighting words,’ those that by their very utterance inflict injury or tend to incite an immediate breach of the peace” are among those “well-defined and narrowly limited classes of speech the prevention and punishment … have never been thought to raise any constitutional problem.”)
Fortunately, Gwinnett quickly abandoned this argument and rescinded the challenged policies. And then they moved to dismiss the lawsuit.
In Monday’s 8-1 ruling, the Georgia-born Justice Clarence Thomas wrote, “It is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him.”
Given such a clear violation of the guarantees of the First Amendment, why was this case before the nation’s highest court? It has something to do with the limits on judicial review of disputes.
“At all stages of litigation, a plaintiff must maintain a personal interest in the dispute,” explained Thomas in his majority opinion for the Supreme Court. Two judicial doctrines — standing and mootness — make sure that courts are not offering advisory opinions but resolving, as required by Article III of the Constitution, actual cases and controversies. Standing asks whether a plaintiff has (1) an injury in fact: (2) that is fairly traceable to the challenged conduct; and (3) that there is a remedy that is likely to redress that injury. Mootness occurs if a court can no longer provide any “effectual relief.”
No one doubted that the first two elements, injury and traceability, had been met in Uzuegbunam’s lawsuit against Gwinnett. Since Gwinnett had retracted the offending policies, the question was whether a request of nominal damages for the constitutional violation was sufficient “redress” or, as the district and appellate courts below had ruled, the case was moot.
In deciding that nominal damages was sufficient to keep Uzuegbunam’s case in court, Thomas looked at the kinds of relief awarded at common law. He concluded that common law courts, both before and after the ratification of the Constitution, “reasoned that every legal injury necessarily causes damage.”
Thomas also noted that Justice Joseph Story, one of the most renowned constitutional scholars in U.S. history, applied this logic “to both retrospective and prospective relief.” The historical line of cases establishing that “nominal damages provided redressability” couldn’t be discounted by an originalist like Thomas. He also rejected “the flawed premise that nominal damages are purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff.”
Justice Brett Kavanaugh noted in a brief separate concurring opinion that defendants like Gwinnett may be able simply to pay the nominal amount sought and avoid protracted litigation.
Monday’s case had a lone dissenter. Chief Justice John Roberts argued that the lawsuit was moot since the plaintiffs were no longer students at Gwinnett, the restrictions no longer existed, and no actual damages were alleged. He accused the court of “turning judges into advice columnists.” Roberts left essentially no room for courts to hear claims for nominal damages where a party’s constitutional rights are violated.
What’s particularly interesting about this case is that progressive legal advocacy groups such as the ACLU, Public Citizen and the American Humanist Association filed briefs in support of Uzuegbunam. They found themselves on the same side with many conservative religious freedom and free speech groups in support of the idea that people whose constitutional rights have been violated can continue their cases even when the government rescinds the policies they were challenging.
Uzuegbunam is no longer a student at Gwinnett and the college is no longer enforcing a draconian anti-speech policy. While his "injury" may be only worth only $1 in nominal damages, getting progressive groups on the record against the institutional wokeness that tried to silence Uzuegbunam is priceless.