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A major federal court victory earlier this month vindicated the procedural due process rights of former Valdosta State University (VSU) student Hayden Barnes, but not his First Amendment or substantive due process rights. A motion for reconsideration filed last Friday by Barnes' attorneys aims to change that.

More than three years ago, Barnes was expelled from VSU for peacefully protesting the university's construction of a parking garage. Former VSU President Ronald Zaccari labeled Barnes a "clear and present danger" and had him "administratively withdrawn" from VSU for posting a collage on Facebook to protest the environmental impact of the planned parking garage. On Sept. 3, 2010, United States District Judge Charles A. Pannell, Jr. ruled that Zaccari's placing a letter of expulsion under Barnes' door without providing notice and a fair hearing violated his right to due process. This constitutional violation was so obvious, in fact, that Judge Pannell deemed Zaccari personally liable for damages Barnes suffered.

Judge Pannell's decision is a big win for students' due process rights and for students' rights in general. The decision is a warning that administrators like Zaccari can and will be held personally accountable for flagrant constitutional violations. However, Judge Pannell's opinion did not properly protect Barnes' First Amendment rights. Judge Pannell improperly dismissed Barnes' First Amendment claim, and reconsideration of this dismissal would go a long way to preventing administrators from retaliating against protected speech in the future.

Judge Panell's opinion recounts how Zaccari called for an investigation into Barnes' "employment and grades" simply because Barnes would not "go away" and continued to raise awareness about the parking garage. Zaccari's investigation into Barnes and the subsequent expulsion were clearly motivated by Barnes' protected speech, and Judge Pannell did not rule otherwise. Yet, Judge Pannell dismissed the First Amendment component of Barnes' complaint on a technicality. Because two sentences of Barnes' complaint accused Zaccari of "conspiring" with other university staff members to violate Barnes First Amendment rights, Judge Pannell misinterpreted Barnes' complaint as raising only a conspiracy claim, and not an individual claim against Zaccari.

According to Judge Pannell's order, Zaccari could not be held liable for violating Barnes' First Amendment rights because Zaccari "alone made the decision to administratively withdraw Barnes from VSU." The court found that VSU staff, from legal counsel to college counselors, told Zaccari that Barnes did not pose a danger, so Judge Pannell allowed Zaccari to escape liability on the conspiracy claim.

In response to the ruling, Barnes' lawyer and FIRELegal Network member Robert Corn-Revere filed a motion last week asking Judge Pannell to reconsider his dismissal of Barnes' First Amendment claim. A motion for reconsideration, which is different than an appeal, can be filed if the trial court judge has made an error of law that must be corrected.

Corn-Revere's motion for reconsideration argues that Zaccari should be liable for retaliating against Barnes for his protected speech. As the motion for reconsideration demonstrates, Barnes' complaint alleged both a conspiracy and individual claims against Zaccari for violating Barnes' First Amendment rights. The motion provides portions of the complaint depicting Zaccari's individual responsibility for retaliation.

• Page 6: Zaccari called Barnes to his office because of his initial flyers. "Zaccari further stated that Barnes had personally embarrassed the President with Barnes's protest activities and that he thought Barnes had ‘gone away' after receipt of the apology letter."
• Page 6: "Zaccari questioned Barnes as to, ‘Who did [Barnes] think [he] was?,' adding that Barnes had made his life hard for him and that he ‘could not forgive [Barnes].'"
• Page 6: "[W]hile attending the [Board of Regents] meeting on April 17-19, 2007, Zaccari directed that inquiries be made by members of his staff into Barnes's academic records, his medical history, his religion, and his registration with the VSU Access Office."
• Page 8: Zaccari met with [university employees] on April 20, 2007, to "infor[m] the group that he had investigated Barnes's employment and grades, and he further expressed complaints about Barnes's correspondence regarding the parking garage."

The motion further argues that Zaccari did conspire with several members of university staff to violate Barnes' rights, and thus Zaccari is guilty on both the individual and conspiracy claims for his First Amendment violations. The motion also contends that Zaccari infringed upon Barnes' substantive due process rights, which protect against arbitrary and irrational administrative action, because Zaccari unlawfully retaliated against Barnes for protected speech.

According to federal rules of civil procedure, plaintiffs' complaints should be read liberally in order to prevent denials of justice based on technical oversights. FIREhopes that Judge Pannell, who recognized the grievous due process violations against Barnes, will amend his First Amendment ruling. Zaccari's attempts to stifle free expression on campus should not go unpunished due to a misreading of Barnes' complaint.

Even if Judge Pannell does not grant the motion for reconsideration, his favorable ruling on due process will remain in force. The decision goes a long way in ensuring that administrators are prevented from ignoring the Constitution. Zaccari will now have to pay for trampling upon Barnes' due process rights, and hopefully he will also be liable for his disregard of the First Amendment.

However, if Judge Pannel fails to reverse his mistakes, Barnes' motion asks that he certify the issues for appeal to the United States Court of Appeals for the Eleventh Circuit.

Of course, we'll keep you posted here on The Torch.