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If you’re the kind of person who pays attention to court opinions about First Amendment lawsuits, you’ll probably remember the 2007 dissent written by Chief Judge Dennis G. Jacobs of the 2nd U.S. Circuit Court of Appeals in Husain v. Springer. I want to update you on an interesting development in that case—but first, let me recap that dissent for you.

Husain is one of two similar, long-running cases out of New York. It involves a college president who canceled the 1997 student government election after a campus newspaper wrote about it. She felt this violated some kind of “electioneering blackout” rule. The trial judge in the Eastern District of New York initially ruled that the College of Staten Island’s president was entitled to qualified immunity because the right of a college newspaper to comment on college politics was not “clearly established” at the time of the election. The students appealed to the Second Circuit.

Somewhat obviously, the two judges in the majority reversed, finding that the right to a free press was clearly established at the time the president cancelled the election, and remanded for a trial to determine whether the college president could have thought her actions were reasonable given the state of the law. But that isn’t what the decision is remembered for.

Chief Judge Jacobs wrote a dissent where he noted he did not read the majority opinion, insisted that “[t]his is a case about nothing,” that the case was a “slow-motion tantrum by children,” and that the newspaper in question was “illiterate piffle.”

Judge Jacobs felt the case was about “nothing” because the students had already graduated and were only asking for nominal damages of one dollar each. The dissent gained some support from legal blogs that seemed to agree with the basic premise: it’s a big investment of court time to argue over a couple of dollars.

Personally, I disagree. It is always more expensive to vindicate a civil right than it is to ignore it. It cost more money to make a world where Rosa Parks could sit in the front of the bus than it would have to preserve a world where  she was forced to sit in the back, but I wouldn’t characterize that as a “slow-motion tantrum” or a “case about nothing.”

This is even more true in the case of schools, where a relatively fixed graduation date means that schools can always wait until a student plaintiff graduates to make all equitable claims moot. If we limited our understanding of justice in the way Judge Jacobs advocates in his Husain dissent, schools could abuse the civil rights of students with impunity, because it would be a trivial matter to drag out the litigation past graduation.

I don’t believe it wastes a court’s time to ask it to weigh the constitutional validity of governmental actions, even when those actions did not result in a quantifiable dollar loss. The job of a court created by the constitution is to make sure the government’s actions are constitutionally permissible, not that they’re economically neutral. If that wasn’t the case, segregation would be legal under a suitably equitable regulatory structure.

A dramatic example, perhaps — but as a common law system, we do have some obligation to create rules of law applicable to questions beyond the one directly in front of us.

Judge Jacobs concluded his dissent with:

This prolonged litigation has already cost the school a lot of money that could better have been spent to enrich course offerings or expand student day-care. If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars.

One of the two interesting things about this case is attorneys’ fees, which I’ll get back to in a moment.

After the Second Circuit’s remand, the attorney for the college invoked New York commercial law precedent that if the defense consents to an entry of judgment in the full amount of the claims requested by the plaintiffs, the court can avoid a finding of liability or wrongdoing. In other words, because the students were asking for nine dollars in nominal damages, the college would be able to give the students nine dollars and never have to admit it did anything wrong.

While this makes sense in the commercial context, it makes little sense in a civil rights case; the purpose of nominal damages is to get the court to rule on the underlying claim, not to make individuals whole by the transfer of a handful of dollars. (Going back to Rosa Parks, it would hardly have resolved the situation for the bus driver to drop Parks at the curb with four quarters.)

Nevertheless, the district court judge granted the motion and entered an award of $1 per plaintiff, for a total of $9. In entering this judgment, the defense preserved, among other things, the right to contest the students’ entitlement to fees or costs, except on the basis that the court entered the judgment on the defendant’s motion and not after a trial on the issues (we’ll come back to this point shortly).

As I mentioned, Husain was only one of two cases involving voided student elections and student newspaper coverage. The other, Sigal v. Moses, was filed in 1998 in the Southern District of New York and involves City College of New York. After a similar dismissal and appeal, the trial court entered judgment for the plaintiffs in the amount of 339 dollars–$337 for the cost of reprinting the paper and $2 in nominal damages. But the attorney for the students was awarded $120,181 in fees and costs for his years of work on the case.

Which brings us back to Husain, where the same attorney represents the student plaintiffs. In that case, the attorney for the state recently requested more time to reply to the motion for attorney’s fees, saying that the students’ attorney was seeking more than $750,000.

Not bad for a case about nothing. And, if awarded, the fees will provide an interesting disincentive to schools thinking about paying token amounts in damages to avoid a trial.

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