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Supreme Court of the United States

Deference? Do They Really Deserve It?

October 17, 2017

In the aftermath of CLS v. Martinez, we've been seeing quite a bit of discussion about "deference" -- the idea that courts should give public universities wide room to make its own decisions.  As Charlotte Allen so ably noted, a distorted concept of deference has been applied to ratify extreme forms of viewpoint discrimination and is now being used to try to insulate even speech codes from constitutional scrutiny. This "deference disease" (as I've heard some refer to it) is rooted in a misreading of Martinez -- after all, the Court gave no deference to viewpoint discrimination and instead limited its deference analysis to the question of whether Hastings "all-comers" policy was "reasonable" -- and (I think) rooted in misguided notions of the inherent virtue of academics.

Proponents of deference need to read Barnes v. Zaccari, a case out of the Northern District of Georgia that FIRE first brought to public attention.  The president of Valdosta State University, Ronald Zaccari, expelled Thomas Barnes because Barnes opposed the construction of a new parking garage by (*gasp*) handing out flyers, writing a letter to the editor, and -- horror of horrors -- posting a cut and paste collage on his Facebook page.  Even worse, when Barnes challenged his expulsion, Zaccari wrapped himself around the Virginia Tech shootings and claimed that he was merely trying to protect the college, calling Barnes a "clear and present danger."  It would be hard to think of a more vicious accusation.

Judge Charles Pannell was thoroughly unimpressed with Zaccari's defense.  He not only denied Zaccari's motion for summary judgment, granted Barnes' cross-motion for summary judgment and held Zaccari personally liable for the expulsion.  This is highly unusual.  For too long federal courts have given university officials a pass on their blatantly unconstitutional actions.  For example, how many times do federal courts have to strike down speech codes before they start imposing liability on officials who enact them?  Twenty?  Thirty?  I can't think of any other area of law where public officials are granted such blanket immunity from liability.

With all due apologies to Neil Armstrong for the perversion and inversion of his quote, could this case be one giant leap for Thomas Barnes and one small step towards individual accountability for administrators?

Alliance Defending Freedom

Alliance Defending Freedom

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Alliance Defending Freedom advocates for your right to freely live out your faith