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An environmental activist expelled from Georgia’s Valdosta State University (VSU) has won a $50,000 award in a lawsuit against the university president who kicked him out of school in 2007. In a dramatic rebuke to President Ronald Zaccari, the federal jury that heard the case found Zaccari personally liable for violating Hayden Barnes’ due process rights.

The case emerged from a dispute over a planned parking structure that Barnes considered a waste of money and an environmental blight on the campus. At least three times Zaccari reached out to Barnes to complain about his organizing against the garage — which included flyering about other uses to which the money could be put and calling members of the VSU board of regents to urge them to reject the proposal —  and when Barnes posted a collage on Facebook that called it the “Zaccari Memorial Parking Garage,” Zaccari claimed it was a threat to his safety and expelled him without a hearing.

Zaccari’s conclusion that Barnes posed a threat of violence was contradicted by campus mental health officials and Barnes’ own therapist, and his decision to expel Barnes without due process violated university policy. The University of Georgia System’s board of regents reversed the expulsion the following year, and Zaccari took an early retirement from the university as the scandal around his actions grew.

When college administrators violate students’ rights they are generally protected from personal liability by a legal principle known as qualified immunity. Under qualified immunity, a government employee who acts wrongfully may only be sued as an individual if his or her behavior violates “clearly established law” of which a reasonable person would have been aware.

In this case, however, a federal jury found Friday that Zaccari’s actions were so egregious that he could be held personally responsible for them, and that his position as a government employee did not shield him from individual liability. Zaccari was told to pay Barnes damages of $50,000 plus attorneys’ fees, which will be assessed at a later date.

A separate lawsuit against the VSU board of regents is currently pending.

Barnes was represented in his lawsuit by FIRE, the Foundation for Individual Rights in Education. Though I’ve clashed with FIRE on some issues in the past, they got this one exactly right and won a very important victory.

College and university administrators need to know that if they wantonly violate students’ rights they run the risk not only of damaging the institutions they serve but also of facing personal legal consequences.

As a result of Friday’s decision, such administrators have new reason to tread carefully.

A student who sued her school district over a requirement that she wear an ID tag equipped with an RFID chip that allowed the school to track her movements lost her court case yesterday.

The case filed in a Texas federal court, was a strange one. San Antonio sophomore Andrea Hernandez objected to the RFID chip on the basis of theology, not privacy — she believes that the tracking tag is the Mark of the Beast warned of in the biblical book of Revelation. As a result, she contends that her religion forbids her from wearing the tag, and that the school’s tag requirement is a violation of her First Amendment rights. As her father put it in a September letter, “it is our Hell Fire Belief that if we compromise our faith and religious freedom to allow you to track my daughter while she is at school it will condemn us to hell.” In a later meeting with a district official he also expressed concern that wearing the chip might cause cancer.

Hernandez was suspended later that month for refusing to wear her school-issued ID, and told that she would not be allowed to return without it. District officials gave her the option of transferring to a school that didn’t use the tracking chips. Instead she sued, and won a preliminary injunction against the suspension. Yesterday’s ruling lifted that injunction and freed the district to transfer her to another school. (Hernandez is likely to appeal.)

So where does the victory come in? Well, at a relatively early stage of the process, the school offered to give Hernandez an ID badge with the RFID chip disabled. Her movements wouldn’t be tracked, her attendance wouldn’t be automatically logged — it’d just be an ordinary ID on an ordinary lanyard.

Hernandez refused this accommodation on the grounds that even a chip-less ID — which her father referred  to as a “symbol” of the RFID tracking program — constituted forced speech in favor of the program itself. The court rejected that argument yesterday.

It’s not clear whether Hernandez would have prevailed in court if the school hadn’t offered the compromise that it did, but the language of the court’s ruling made it clear that she would have been on stronger ground. (They did not address the question of the constitutionality of the ID requirement on privacy grounds, as Hernandez explicitly disavowed such a claim.)

Yesterday’s ruling, then, leaves many of the core issues surrounding student RFID tags unresolved. But it does provide support for the idea that allowing students to opt out of RFID requirements is a reasonable accommodation, as well as raising the public profile of the opt-out path for those students who might be interested in it.

One note about the RFID requirement. Although yesterday’s ruling claimed that the tags “are expected to improve [school] safety by allowing school staff to know the whereabouts of a student that may be missing or unaccounted for in the event of a fire alarm or other emergency evacuation,” that’s not the reason that the chips were added.

In Texas, as elsewhere in the country, state school funding is set partially on the basis of student attendance. When students are absent, funding goes down. Equipping ID cards with RFID, and mandating that students wear the IDs on campus at all times, allows the school to automate attendance-taking and include students who arrive late, leave early, or otherwise fall through the roll-call cracks in their attendance reports. More accurate record-keeping means more state money.

As is so often the case these days, this new — and potentially problematic — education policy is driven primarily by the ongoing crisis in public school funding.

A federal judge has ruled that three supporters of “ex-gay” therapy may not be sanctioned by the state of California under a new law against the use of so-called conversion therapy on gays, lesbians, and bisexuals under the age of 18.

The law, SB 1172, passed earlier this year and is set to go into effect on January 1. Declaring that “being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming,” and that “sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people,” the law bars mental health professionals from attempting to change the sexual orientation of gay minors.

Judge William B. Shubb, a George HW Bush appointee, ruled that three men challenging the law — psychiatrist Anthony Duk, therapist Donald Welch, and prospective counseling student Aaron Bitzer — may not be sanctioned under its provisions until the resolution of a pending court case on their claim that it violates their free speech rights.

In his ruling Judge Shubb declared that SB 1172 is “unlikely” to survive constitutional scrutiny because its underlying premise — that conversion therapy is harmful to minors — is based on “questionable and scientifically incomplete studies.”

Judge Shubb’s ruling currently applies only to the three named plaintiffs, but their lawyer says that they would be willing to add any other mental health practitioner facing sanctions under the law to their suit.

The typical Supreme Court oral argument lasts an hour, with the lawyer for the petitioner (whoever brought the suit) taking the first thirty minutes, and the lawyer for the respondent (the other party) taking the second. Each attorney stands at a podium when it’s his or her turn, and gives a presentation on their case to the nine justices. Or tries to.

That half hour isn’t just their time for making arguments, it’s also the justices’ time for questioning, and they can — and do — interrupt at any moment, for any reason. As an attorney arguing in front of the Supremes, you’re trying your best to get through the material you want to get through while also responding to any idea that pops into any justice’s mind. It’s a bit like batting in the World Series, but with every player on the opposite team hurling balls at your head.

It’s kind of awesome.

I’ve attended SCOTUS oral arguments only once, for a zero-profile case that a friend of a friend was arguing. (I took a road trip one other time and slept out all night trying to get in for Lawrence v. Texas, but a local college’s RA had brought her whole floor and we missed the cut.) The case I saw presented was a boring, technical, marginal one ultimately decided in a 9-0 decision, but seeing it argued in person was thrilling, strange, and — because I knew one of the attorneys — nerve-wracking even to watch.

The Supreme Court is, according to the Constitution, the final interpreter of the Constitution itself. If you don’t like what they decide, you’ve got to pass a constitutional amendment overturning them (something that’s ridiculously hard to do and hasn’t happened in four decades) or just sit tight and wait until they change their minds. And because there are only nine justices, and because they have so much discretion, changing one of their minds can change the course of history.

Supreme Court oral arguments are as close as an ordinary American can ever hope to get to watching the actual internal machinery of the federal government in operation. Whatever you think of that government, whatever you think of the institution of the Court itself, it’s impossible to observe it closely and not come away with a staggering sense of historical contingency.

Fisher v. Texas, the college admissions case SCOTUS heard argued last week, is a big deal. A win for the plaintiff, Abigail Fisher, could mean an end to affirmative action in higher education in the United States, a major transformation in the country’s colleges and universities, and an altering of the life opportunities of the next few generations of Americans. In arguing this case, the Supremes were arguing over not just higher education policy but over what kind of country we are, what principles will guide us going forward. They were arguing about the nature of race and the meaning of fairness, and because they’re the Supreme Court of the United States, they get to decide how those concepts operate in American law.

This is a big deal and a big, complicated case, and over the next week or so I’ll be making my way through the oral argument transcript, analyzing the most important (and weirdest) moments.

See you tomorrow for part one.

The transcript of Wednesday’s oral argument was released that afternoon, and it’s fascinating reading. So fascinating, in fact, that I think I’m going to make a project of writing about it next week — a series of posts excerpting and discussing the most interesting exchanges.

In the meantime, I wanted to just highlight a couple of things.

First, the justices were clearly paying attention to the “standing” issue — the question of whether Abigail Fisher has a case she’s properly situated to bring before the Court. You can’t just decide to sue the government because you don’t like something they did. (If you could, everybody would be suing all the time, and the court system would collapse.) You have to show that you’ve been harmed in a way that the courts can fix, and the standards for what kinds of harm count in which circumstances are narrow and complicated.

I’ll go into this in a little more detail next week, but given the way I broke down the case’s possible outcomes in my last post, it’s worth underscoring that the Supremes may just rule that Fisher wasn’t harmed, or can’t be made whole, and show her the door. If that happens, we’ll go through all this again with another lawsuit brought by a better plaintiff at some point in the next few years — possibly with a different lineup of justices on the Court, and almost certainly with Elena Kagan able to participate fully.

Second, Justice Sotomayor was a pretty strong questioner in this, her first campus affirmative action case. Given that she got into Princeton as an affirmative action admit, and that she once described herself as “a perfect affirmative action baby,” that’s perhaps not surprising. But it seems to me that the impact of Sotomayor’s advocacy, and her life experience, may be felt more in the next phases of the process than it was in oral arguments. Sonia Sotomayor would not be sitting on the Supreme Court today if affirmative action didn’t exist, and that fact renders the Court’s dilemma in this case more concrete than it otherwise might be.

About This Blog

n7772graysmall is the work of Angus Johnston, a historian and advocate of American student organizing.

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