Colleges pay out millions of dollars annually to settle lawsuits over their violations of the First Amendment. Most of the money is earmarked for the attorneys’ fees of students or faculty who sue colleges. Very little of the money is earmarked to pay the damages of the students and faculty whose free speech rights are violated (such as financial losses a professor suffers due to being disciplined, or emotional distress experienced by a student who was punished for her speech). That’s because state university officials can be ordered to pay attorney fees under a federal law (42 U.S.C. 1988), but sovereign immunity generally protects state universities from having to pay damages to the students and faculty for the harm they have suffered. Sovereign immunity does not prevent a faculty member from seeking reinstatement to his job, nor does it prevent a student from challenging his expulsion. A few state universities, such as the University of Pittsburgh, are not protected against damages by the sovereign immunity contained in the Eleventh Amendment. Local school districts, by contrast, are not protected by the Eleventh Amendment’s sovereign-immunity provisions, except in a few states like California, where education is so centralized that school districts are considered part of the state and thus covered by the Eleventh Amendment.
Non-profits that file lawsuits on behalf of students and professors routinely collect attorneys fees in settlements from colleges, non-profits such as the Becket Fund for Religious Liberty, Alliance Defending Freedom, and Foundation for Individual Rights and Expression. These fees usually amount to less than 25% of non-profits’ annual budgets, because the non-profits are unable to collect attorneys fees in many cases (such as those they lose outright), and because non-profits spend a lot of time and money on outreach and messaging, as well as scouring the country for potential plaintiffs to sue over college policies that restrict speech.
In 2019, the University of Iowa paid $1.9 million to the Becket Fund for Religious Liberty to settle a lawsuit over its club approval policies. The settlement paid the Becket Fund’s fees for representing InterVarsity Christian Fellowship and Business Leaders in Christ. Both groups sued the University of Iowa after school officials told them they had to allow student leaders who did not share their beliefs, such as gay activists.
From 2021 to 2022, Alliance Defending Freedom, a Christian legal nonprofit, collected $1,668,200 in settlements for college free speech lawsuits. The legal group also won at least seven policy changes as part of its lawsuits, including a favorable Supreme Court decision, ensuring future students and groups on those campuses do not face similar problems.
The College Fix reports that
of ADF’s successful free speech lawsuits, four involved religion, three involved permit requirements for free speech and two involved LGBT-related issues, such as the use of a student’s preferred pronouns. The remaining two lawsuits involved microaggressions and student organization fund denials.
Nine of the eleven lawsuits resulted in monetary payments from the universities.
“We are grateful that we have been able to achieve victories for many brave clients who are willing to take a stand for the free speech rights of all students,” Tyson Langhofer, ADF’s senior counsel and academic freedom center director told The Fix via email. “However, we are disappointed that there are still so many public universities that consistently violate, rather than protect, the First Amendment rights of their students.”
“Universities should be a marketplace of ideas. Instead they have become an assembly line for one type of thought,” Langhofer said. “That is contrary to both the First Amendment and the purpose of the university.”
Listed below are the 11 incidents where conservative students and professors have been punished by universities for expressing their First Amendment right over the past two years.
Filed April 2022, settled December 2022: Christian law students and a professor sued the University of Idaho after the university served them with no-contact orders for expressing their support of Biblical marriage between a man and woman. The lawsuit was settled with the university for $90,000 after the court issued a preliminary injunction against the university.
Filed October 2021, settled December 2022: Students in Ratio Christi sued the University of Nebraska for denying the student group of funding for a speaker event. The university revised its funding policy for student organizations. The lawsuit was settled with the university for $25,000 after the court ruled that the case can continue.
Filed April 2020, settled September 2022: A professor sued the University of North Texas after the university fired the professor for mocking microaggressions in the classroom. The lawsuit was settled with the university for $165,000 after the court ruled that the case can continue.
Filed December 2016, settled June 2022: A Christian student sued Georgia Gwinnett College after the school prevented him from evangelizing on campus. The university changed its free speech policy in hopes of avoiding litigation. The lawsuit was settled for $800,000 after a favorable ruling of 8-1 by the Supreme Court.
Filed February 2019, settled April 2022: A Christian professor sued Shawnee State University after the university punished the professor for refusing to use female pronouns for a gender dysphoric male student. The lawsuit was settled for $400,000 after a favorable ruling by the U.S. Court of Appeals for the 6th Circuit. Professor Nicholas Meriwether, as a result, can never be forced to use someone’s pronouns that do not correspond to their actual sex.
Filed October 2021, settled February 2022: At University of Houston-Clear Lake, Christian students sued the school revoking Ratio Christi’s registered student organization status due to its morality requirement among members. The university changed its policy to allow all campus groups to maintain their own values and mission. The lawsuit was settled with the university for $26,200.
Filed January 2020, settled June 2021: In January 2020, Montclair State University was sued by the Young Americans for Liberty chapter after it was denied use of free speech zone without two-week permission. The university eliminated its Bias Education Response Taskforce and the two-week policy of free speech zones. The lawsuit was settled with the university for $42,000.
Filed August 2020, settled May 2021: A Catholic student sued Florida State University after the student government removed him for criticizing Black Lives Matter and transgenderism, in alignment with his religious beliefs. The lawsuit was settled with the university for $95,000 after the court ruled against FSU.
Filed May 2020, settled January 2021: Pro-life students sued Chemeketa Community College for reinstating a policy that requires two weeks’ notice to use the university’s small free speech zones. The university changed this policy after the lawsuit was filed, in hopes of avoiding litigation. The lawsuit was settled with the university for $25,000.
Filed March 2021, ongoing: In March 2021, Christian colleges sued the U.S. Department of Education after an LGBT group sued to remove First Amendment protections for religious universities. ADF’s motion to intervene in the LGBT group’s lawsuit was granted in April 2021.
Filed May 2021, ongoing: Students in Young Americans for Liberty chapter sued the University of Alabama for a policy that limited free speech to small zones on campus and requires a permit three days in advance. The state supreme court allowed the lawsuit to continue in December 2022.
