Kagan invoked “the most famous nominal damages case I know of in recent time” — superstar Taylor Swift’s successful lawsuit against a radio host who she said groped her, and for which Swift sought a pittance.
“Nobody thinks that being sexual assaulted is really only worth a dollar. Nobody thinks that. It’s worth a lot more than that,” Kagan told Georgia Solicitor General Andrew Pinson, who was defending the college. “But that’s all she wanted. She wanted to prove a point.”
The songwriter’s example resonated with other justices. “Justice Kagan’s question suggested that really what Taylor Swift wanted was, you know, vindication of the moral right, the legal right, that sexual assault is reprehensible and wrong,” said Justice Amy Coney Barrett.
Kristen K. Waggoner, a lawyer for the conservative Alliance Defending Freedom, said that was what her client Uzuegbunam was seeking as well, when he sued Georgia Gwinnett College in 2016.
Campus police stopped him from handing out religious tracts on the school’s plaza in Lawrenceville, saying “expressive activity” was allowed only in two designated speech zones on campus. Uzuegbunam reserved one of the spots.
“Students frequently stand in public areas to speak about issues that are important to them. I did that, too, talking about my beliefs, offering Christian pamphlets and engaging cheerfully with interested students,” Uzuegbunam wrote in an op-ed in The Washington Post. “It was a chance to meet new people and respectfully share how Jesus changed my life, only to be confronted again by officers who said there had been complaints.”
Uzuegbunam, joined by another student, eventually sued the college in federal court, alleging among other things a violation of their rights to free speech and free exercise of religion.
Before the case was decided, the college discarded its restrictions. The judge declared the case moot, and a panel of the U.S. Court of Appeals for the 11th Circuit agreed. They said the students’ request for nominal damages was not enough to keep it alive.
Uzuegbunam’s appeal to the Supreme Court was endorsed by a range of groups that often find themselves at odds: the Trump administration and the American Civil Liberties Union, for instance, and conservative legal religious organizations such as the Becket Fund along with the American Humanist Association.
“There is an intrinsic value to the lost constitutional right that far exceeds the one, 10 or 100 dollars that is afforded in response for that,” Waggoner told the court, adding “vindication does occur through a nominal damages award just as with any other award.”
But Pinson said that lower courts were right to conclude the case was over once the college changed its policy, and that the system worked as it was supposed to.
“Litigation prompted college officials to review their policies, and just 10 weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for petitioners but for all students,” Pinson said. “And it even led to an enduring statewide policy change for every public college in Georgia.
He continued: “That kind of early out-of-court resolution should be encouraged.”
The justices struggled with whether nominal damages are a good stand-in for what Justice Samuel A. Alito Jr. said is a “a real concrete violation that can’t be easily monetized.”
Chief Justice John G. Roberts Jr. worried it wasn’t enough to make the kind of case federal courts should decide. “The only redress you’re asking for is a declaration that you’re right,” Roberts said. “You want the court to say, you know, you’re right.”
Justice Brett M. Kavanaugh said he suspected the case was really about attorney fees. If a court finds a constitutional violation, the government is on the hook to pay attorney fees for the challenger. The situation is more complicated if the government just changes the restriction or the case is dismissed.
“That may be what’s really at stake here,” he said.
If so, that is important, too, Waggoner said. Congress and the courts have long recognized that awarding attorney fees to those who challenge unconstitutional actions is “critical to not only the plaintiffs that are losing their civil rights and injured in these actions, but it’s critical to our nation and it’s a noble purpose to vindicate those constitutional rights.”
The case is Uzuegbunam v. Preczewski.