Six years after Thomas Hayden Barnes was tossed out of college without warning for vociferously criticizing a plan to replace campus greenspace with parking garages, his First Amendment claim still awaits a day in court.
That day is a bit closer with an argument docketed at the Atlanta-based Eleventh Circuit U.S. Court of Appeal, which is considering whether Barnes’ retaliation claim was dismissed prematurely.
In a brief jointly filed Monday by the SPLC and 11 other free-speech organizations, the Foundation for Individual Rights in Education, Inc., and attorney Lawrence G. Walters ask the Eleventh Circuit to reinstate Barnes’ First Amendment claim against former Valdosta State University president Ronald Zaccari.
Since his ordeal at Valdosta State, Barnes has successfully completed his undergraduate degree — elsewhere — and a law degree. Still, he awaits justice for Zaccari’s abrupt decision to brand him a threat and expel him from college, merely for aggressive advocacy that included a website mocking Zaccari’s pet parking-deck project.
Barnes has already prevailed once in his case, demonstrating that Zaccari violated due process by summarily expelling him without a hearing before a neutral decisionmaker. (Having berated Barnes for his impertinence in daring to question the president, Zaccari hardly qualified as “neutral.”) But a win on the core First Amendment issue would set a meaningful precedent for all students that a college cannot silence critics by equating persistent criticism with “dangerousness.”
The issue before the Eleventh Circuit is a narrow procedural one that has little to do with whether Barnes’ speech was constitutionally protected.
U.S. District Judge Charles A. Pannell, in a 2010 ruling that was mostly favorable to Barnes, refused to entertain Barnes’ First Amendment claim because he read the lawsuit as stating only a claim for “conspiracy” to violate the First Amendment. Since there was no proof that Zaccari conspired with anyone — the expulsion Pannell wrote, was Zaccari’s doing alone — there could be no conspiracy claim.
That was an overly literal and legalistic reading of the lawsuit, which — although it did use the word “conspire” — clearly was intended to state a First Amendment retaliation claim against Zaccari individually, conspiracy or not.
A civil complaint need not state all of the legal theories entitling the plaintiff to a remedy. It is necessary only to set forth a “plausible claim for relief,” the Supreme Court has said.
Barnes’ First Amendment complaint unmistakably said that Zaccari retaliated against him for constitutionally protected expression, and that was more than enough to give Zaccari fair notice of the claims against him. Judge Pannell was mistaken to dismiss that element of the complaint, and the Eleventh Circuit should restore the retaliation claim and make Zaccari answer for the full consequences of his overreaction.