On January 12, the United States Supreme Court heard oral argument in the case of Uzuegbunam v. Preczewski, which occurred in the context of religious speech on a college campus. The question at issue in the case is whether a plaintiff may proceed with a case when all that remains at issue is a claim for nominal damages. This case could have important ramifications for civil rights cases where plaintiffs have been subjected to an allegedly unconstitutional policy that is thereafter changed or abandoned by a defendant.
Background: University’s Freedom of Expression Policy Challenged
The student plaintiff in this case, Chike Uzuegbunam, distributed religious literature in an open, outdoor plaza on the campus of Georgia Gwinnett College (GGC). He was prohibited from that distribution and from subsequent attempts to speak and distribute literature under GGC’s “Freedom of Expression Policy” which limited expressive activity to certain areas of campus and required speakers to obtain a permit. Uzuegbunam, and another student who shared Uzuegbunam’s religious views and desired to speak on GGC’s campus, challenged GGC’s policy under the First and Fourteenth Amendments. Their lawsuit in federal district court sought nominal damages, among other forms of relief. GGC filed a motion to dismiss the complaint.
Before the district court ruled on the motion, three significant events occurred. First, Uzuegbunam graduated from GGC. Second, GGC revised its “Freedom of Expression Policy” to allow students to speak anywhere on campus without having to obtain a permit. And third, the Eleventh Circuit ruled en banc in Flanigan’s Enterprises, Inc. of Georgia v. City of Sandy Springs, 868 F.3d 1248 (11th Cir. 2017), that a request for nominal damages will only save an otherwise moot challenge to an allegedly unconstitutional policy or law if the plaintiff has also requested compensatory damages. Based on these developments, the district court granted the defendants’ motion to dismiss and the plaintiffs appealed to the Eleventh Circuit, which affirmed, based on its ruling in Flanigan’s.
Supreme Court Considers the Nature of Nominal Damages
Before the Supreme Court, the lawyers for the plaintiffs argued that the Eleventh Circuit is an outlier in that the other Courts of Appeals that have addressed the question have held that a plaintiff that has alleged nominal damages may proceed with a claim against an allegedly unconstitutional or illegal policy or law against a challenge for mootness. Plaintiffs argue that this is necessary especially in the area of civil rights laws where the harm suffered is often difficult to quantify. Defendants argued that to allow a claim to proceed where only nominal damages are at issue is to allow an end-run around the Supreme Court’s standing requirements under Article III which require a real and substantial injury.
The oral argument before the Supreme Court was held by telephone due to the COVID-19 pandemic. All members of the Court questioned attorneys on both sides. The United States argued as amicus curiae in support of the plaintiffs. It is always dangerous to predict the outcome of a case based on oral argument and that is especially true in this case. The Justices had tough questions for lawyers on both sides and are considering deeply the nature of nominal damages. Are they merely symbolic—a psychic victory for a plaintiff who prevails? Or are they used to compensate for real harm that is difficult or impossible to quantify—like the harm to a person who is unconstitutionally prevented from sharing his faith with his classmates?
As a practical matter, savvy plaintiffs’ lawyers will likely adjust their pleadings to however the Court may rule. Some of the Justices noted in oral argument that an imaginative lawyer can always develop some claims for actual damages—bus fare to campus, for example—to satisfy a requirement that compensatory damages are required to escape a later mootness challenge. A ruling in favor of the Eleventh Circuit here, however, will overturn the rule in several circuits and make it easier for defendants to obtain dismissal of cases on the basis of mootness. A decision in this case is expected no later than June 2021.
If you have any questions about this case, please contact the author.
The author would like to thank law clerk Ramon Ryan for his valuable assistance on this article.