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Does a Government’s Late Change of an Unconstitutional Policy Moot Nominal-Damages Claims?

Written by: Phillip E. Friduss, Esq.

Currently knocking on the Supreme Court’s door for permission to be heard is a Georgia Free Speech case questioning whether a government’s post-(lawsuit) filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right. Uzuegbunam v. Preczewski, Case No. 19-968 (appeal from decision of Eleventh Circuit)

While a student at Georgia Gwinnett College, Petitioner Chike Uzuegbunam began distributing Christian religious literature on campus. College officials stopped him because he was outside the 0.0015% of campus where “free speech expression” was allowed. When Chike reserved a free-speech space and again tried to evangelize, officials stopped him because someone complained which, under College policy, converted Chike’s speech to “disorderly conduct” (i.e., “disturb[ing] the peace and/or comfort of person(s)”).

Facing discipline if he continued, Chike sued. Another student, Petitioner Joseph Bradford, self-censored after hearing how officials mistreated Chike. Chike and Joseph raised constitutional claims against Respondents’ enforcement of their policies, seeking damages and prospective equitable relief to remedy the censorship and chill. After Respondents changed their speech policies post-filing, mooting all equitable claims, the lower courts held that Chike and Joseph did not adequately plead compensatory damages, and their nominal-damages claims were moot.

Six circuits hold that a government’s policy change does not moot nominal-damages claims. Two circuits hold such claims moot if the government changes a policy it has never enforced against the plaintiff. The Eleventh Circuit alone holds that, absent compensatory damages, government officials are never liable for violating constitutional rights if they change their policy after being sued.