The United States Supreme Court on July 9, 2020 granted review in a case that raises a procedural question with significant practical implications for the types of constitutional lawsuits often brought against public school districts. The grant of certiorari in Uzuegbunam v. Preczewski (Case No. 19-968) came on the last day of the Court’s term and will be argued sometime when the Court’s new term begins in the fall, with a decision to follow sometime next year. The Court agreed to decide whether a government agency’s change to an allegedly unconstitutional policy is enough to make a lawsuit challenging that policy moot when the party bringing the challenge seeks only nominal damages, as opposed to a larger claim for compensation.
In July of 2016, Georgia Gwinnett College student Chike Uzuegbunam (Uzuegbunam) began distributing religious literature in an open, outdoor plaza on campus. Shortly after he began doing so, he was stopped by a member of Campus Police who explained that Uzuegbunam was not allowed to distribute religious literature (or any literature) at that location in accordance with the “Freedom of Expression Policy” included in the Student Handbook. The policy provided that students were generally permitted to engage in expressive activities only in two (2) designated speech zones and only after reserving them.
Thereafter, Uzuegbunam reserved one of the designated speech zones in order to distribute religious literature and speak to students about his religious beliefs. However, soon after Uzuegbunam began speaking, a member of Campus Police approached him and asked him to stop, explaining they had received calls complaining about his speech. The officer explained to Uzuegbunam that he had only reserved the speech zone for certain specific purposes, not including open air speaking, and that he was in violation of the Student Code of Conduct because his speech constituted disorderly conduct.
As a result, Uzuegbunam stopped speaking entirely. Moreover, Uzuegbunam and another student (Joseph Bradford) – who shared Uzuegbunam’s religious beliefs and desire to speak publicly concerning those beliefs – refrained from speaking publicly or distributing literature in any open, outdoor, generally accessible area of campus, including the two (2) speech zones moving forward.
The two students sued Georgia Gwinnett College officials, pursuant to 42 U.S.C. § 1983, asserting challenges to the constitutionality of the two policies included in the Student Handbook – the Freedom of Expression Policy and the Student Code of Conduct. The students sought declaratory judgment that these policies and the restrictions associated therewith violated their First and Fourteenth Amendment rights, injunctive relief prohibiting Georgia Gwinnett College officials from enforcing the challenged policies and nominal damages (intended to hold the Georgia Gwinnett College officials accountable despite a lack of any alleged compensable injury to the students).
While the case was pending, Uzuegbunam graduated, mooting his claims for declaratory and injunctive relief. Additionally, Georgia Gwinnett College revised the Freedom of Expression Policy such that students would be permitted to speak anywhere on campus without having to obtain a permit, except in certain limited circumstances, and removed the challenged portion of its Student Code of Conduct mooting Bradford’s claims. As a result, the United States District Court for the Northern District of Georgia (District Court) dismissed the case, holding that the claim for nominal damages could not save the otherwise moot constitutional challenges.
On appeal to the United States Court of Appeals for the Eleventh Circuit (11th Circuit), Uzuegbunam and Bradford argued that their nominal damages claim presented an ongoing case or controversy and, therefore, the District Court erred in dismissing the case. The Eleventh Circuit disagreed and affirmed the District Court decision. Uzuegbunam v. Preczewski No. 18-12676 (11th Cir. 2019) (Unpublished).
The 11th Circuit concluded that there are certain cases in which a claim for nominal damages present a live case or controversy – Where nominal damages are the only appropriate remedy to be awarded to a victorious plaintiff. However, there are other cases where the award of nominal damages serve no purpose other than to affix a judicial seal of approval to an outcome that has already been realized. The 11th Circuit concluded that the case at hand fell decidedly in this second category of cases because Uzuegbunam and Bradford had already won by receiving all of the relief they had requested (revision/removal of the challenged policies).
The Supreme Court will now weigh in on whether the government (e.g., public school districts) can moot claims for nominal damages simply by changing an unconstitutional policy after the filing of a lawsuit. It should be noted that had Uzuegbunam and Bradford sought compensatory damages (i.e., any number of concrete injuries as a result of Georgia Gwinnett College enforcing its policies), even if not ultimately proven, their claim for nominal damages likely would have been adequate to sustain the action. This will be an important case for public school districts to watch as constitutional challenges to their policies are raised and they analyze whether to revise or rescind those policies in light of the pending litigation.