SCOTUS Holds Nominal Damages Can Stop Government Gamesmanship


WASHINGTON, D.C. – The U.S. Supreme Court ruled 8-1 today in support of the petitioners in Uzuegbunam v. Preczewsk and upheld the 200-year-old common law tradition providing that a claim of nominal damage as little as $1.00 can prevent the government from mooting a case. Justice Thomas wrote the opinion joined by the other justices except Chief Justice Roberts, who dissented.

Liberty Counsel submitted an amicus brief on behalf of Child Evangelism Fellowship (CEF) in this case in support of the petitioners. CEF is often faced with unconstitutional treatment in public school districts in which CEF attempts to change the violation without litigation. Yet, some school districts refuse to fall in line with the First Amendment, and then CEF has no choice but to file in federal court. After resisting change and defending in court these unconstitutional policies, sometimes for years, some school districts will attempt to moot the case and avoid a judgement and attorney’s fees and costs by either changing their policy or dragging out the case until the students have graduated or moved on beyond the relevant grade level. Today’s ruling means that a nominal damage claim can prevent mootness and require the court to address the constitutional violation, along with entitlement to attorney’s fees and costs.

In today’s ruling, Justice Thomas bases his opinion on the same rationale argued in Liberty Counsel’s brief, which is that history and common law mandate a finding that past injuries be redressed, even if by small sums. In his opinion Thomas wrote, “The law tolerates no further inquiry than whether there has been a violation of a right. When a right is violated, that violation imports damage in the nature of it and the party injured is entitled to a verdict of nominal damages… [A] person who is awarded nominal damages received relief on the merits of his claim and may demand payment for nominal damages no less than he may demand payment for millions of dollars in compensatory damages.”

Justice Thomas also added, “Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.”

In this case, Chike Uzuegbunam tried to share his faith in Christ with others on the taxpayer-funded school campus, Georgia Gwinnett College. The college silenced him because he was not standing in the “proper zone,” ironically labeled a “free speech zone,” when he distributed literature and shared his faith with other students. Officials required Uzuegbunam to get advance permission to use one of two small speech zones that made up less than one percent of the campus and were only open 10 percent of the week. Uzuegbunam complied and reserved time, then began sharing his faith in the zone. Two police officers ordered him to stop because they allegedly had received a complaint. Under the college’s policy, it is considered “disorderly conduct” if someone says that speech makes them uncomfortable. The officers said if Uzuegbunam continued to share his faith, he would face discipline. Uzuegbunam stopped speaking, and another student self-censored after seeing how officials treated Uzuegbunam.

After being sued, the college initially tried defending its unconstitutional policies by claiming Uzuegbunam’s witnessing amounted to the constitutionally unprotected “fighting words.” After the litigation continued in the district court, and perhaps sensing that labeling Christian witnessing to be disorderly conduct and fighting words was a constitutionally dubious position, the college changed its policy and requested the court to dismiss Uzuegbunam’s lawsuit. 

In essence, Uzuegbunam had prevailed but could not continue his litigation because all that was left was a nominal damages claim. Although every circuit court of appeals in the nation has held that nominal damages present a live controversy that federal courts can use to determine that the government violates a plaintiff’s constitutional rights, the Eleventh Circuit dismissed his case, saying that nominal damages are not enough to maintain a federal case. That decision ignores the vital role that nominal damages play in making sure the government is held to account for violating constitutional rights. As the Supreme Court said long ago, “The law recognizes the importance to organized society that [constitutional] rights be scrupulously observed,” and nominal damages are the vehicle by which courts can do that.

Liberty Counsel Founder and Chairman Mat Staver said, “Today’s decision by the Supreme Court recognizes the vital role nominal damages play in constitutional litigation. Just because the damages are referred to as nominal, does not mean the vindication of constitutional rights is equally nominal. Government officials should not violate First Amendment rights, change course, and then face no consequences for that abuse. That equates to games of constitutional whack-a-mole. This decision will be particularly helpful in the church litigation in which the Governors are constantly changing their executive orders and then arguing the case is moot. This litigation tactic has come to an end.”

SOURCE Liberty Counsel

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