U.S. Supreme Court Rules Students Can Pursue Free Speech Claims Against College Based On Policies No Longer In Effect

On March 8, 2021, the U.S. Supreme Court held in Uzuegbunam v. Preczewski that claims challenging a campus policy on distribution of religious literature were not mooted by the school’s decision to change the policy. Specifically, the Court held that a request for nominal damages satisfies the redressability element necessary for Article III standing where a plaintiff’s claim is based on a completed violation of a legal right.

Plaintiffs were students at Georgia Gwinnett College, a public college in Georgia, where campus policy allowed distribution of written religious materials in only two designated “free speech expression areas” and required a permit to do so. One of the plaintiffs was prevented from distributing materials by campus police officers, including on one occasion when he had obtained a permit and was in a designated area. The other plaintiff alleged that he decided against speaking about his religion on campus because of the campus policy and enforcement.

Both plaintiffs sued the school, seeking nominal damages and injunctive relief. The school initially defended its policies, but subsequently changed them and moved to dismiss the case as moot. Plaintiffs agreed that their claim for injunctive relief was moot, but argued that their case was still live because of their request for nominal damages. The district court agreed with the school, holding that Plaintiffs’ request for nominal damages was not sufficient to establish standing, and the Eleventh Circuit affirmed.

The Supreme Court reversed, noting that “the law recognized ‘not merely pecuniary’ injury but also ‘personal injury’” and thus “every violation [of a right] imports damage.” The Court recognized that “a single dollar often cannot provide full redress,” but nevertheless the ability “to effectuate a partial remedy satisfies the redressability requirement.” Furthermore, a contrary rule would result in “the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.” Thus, the Court concluded that a request for nominal damages was sufficient to establish standing where the plaintiff’s claim was based on a completed violation of a legal right.

Uzuegbunam will make it more difficult for schools to obtain dismissal of lawsuits that are based on policies or practices no longer in effect, even where no compensatory damages are sought. This decision, however, leaves open the question of whether a school facing such claims could nevertheless end the litigation by accepting the entry of a judgment for nominal damages.

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Every school is different, and there is no one-size-fits-all approach. Please contact a member of Goodwin’s Higher Education or Appellate and Supreme Court Litigation groups to discuss what might be right for your institution.