On Monday, Justice Clarence Thomas told state institutions of higher education that their "free speech zones" and other policies banning expression that "disturbs the ... comfort of persons" likely conflict with the First Amendment. The case was Uzuegbuman, et. al. v. Preczewski, et. al.
The Court's opinion focused mostly on procedure, finding that Petitioner students had standing to sue Georgia's Gwinnett College even though the school dropped the policy at issue, removing claims for injunctive relief and leaving only nominal damages.
But the opinion's forceful conclusion is a reminder that every rights violation imports damage, even if it is hard to quantify in economic terms, which is often the case for First Amendment claims.
More importantly, the opinion strongly suggests that campus limits on free expression and religious exercise run afoul of First Amendment protections. And it makes clear that schools cannot quietly drop their illegal policies when they’re challenged in court and then claim a lawsuit is moot and should be dismissed, only to revive the policies when no one’s looking. This ruse is common at colleges and universities and has, until now, prevented court scrutiny that could otherwise correct the growing number of free speech violations on campus.
Petitioners were former Gwinnett students who, in 2016, distributed religious literature on campus and talked to other students about their faith. They were told by campus officials, however, that such activity was only allowed in two areas, designated as "free speech zones." But even there, they needed a permit. The students then obtained the permit and resumed their activity in the zones, only to be told that the activity violated school policy because other students had complained.
The policy then in place prohibited using the zones to say anything that "disturbs the peace and/or comfort of person(s)."
Because some students complained, the speech "disturbed the comfort" of persons and violated school policy.
The students then sued school officials, claiming the policies violated the First Amendment guarantee of free expression, including religious exercise. The school initially defended the policy, characterizing their religious speech as "fighting words," but eventually dropped the policy altogether and then moved to dismiss the case as moot. The Supreme Court rejected this argument, finding the students had experienced real injury that nominal damages would redress.
The case is significant for a number of reasons: First, the Court is now aware of, and arguably hostile to, campus limits on free speech such as zones, permits, and other time and place restrictions.
Second, the case shows how far from education institutions like Gwinnett have strayed: As any athletic coach can attest, no development happens - either physical or intellectual - without growing pains, aka discomfort. "Get out of your comfort zone!" is a common exhortation in sports, the arts, and business, and for good reason. Institutions of higher education that claim to ban discomfort have relegated themselves to a purpose other than intellectual growth - that is, other than education.
What's more, the comfort ostensibly protected by the policy is false and selective. Traditional Muslim students may be uncomfortable on campus with women there, for example - especially women without a hijab. Does their discomfort mean women must leave? Or cover up? What about pro-life students uncomfortable with abortion advocacy? Religious students uncomfortable with homosexuality? The list goes on.
Probably most disturbing about this case is the realization that Gwinnett's policies are almost certainly not unique. How many schools have sleeper policies like this one that ban expression in violation of the First Amendment because select students feel uncomfortable?
Kudos to the Court for calling out illegal policies like this one. But its opinion is still a sober reminder that college increasingly offers a false concept of comfort instead of education.