On April 13, Barnes posted this collage on Facebook under the headline “S.A.V.E. – Zaccari Memorial Parking Garage.”2 S.A.V.E. referred to Students Against Violating the Environment, the VSU environmental group that Hayden believed should be opposing the garage. “Memorial” referenced Zaccari’s claim that the garage was to be part of his legacy.
On May 7, Hayden found an official notice slipped under his door, telling him that he had been “administratively withdrawn,” effective immediately.3 Stapled to the note was the only evidence offered for this decision: the collage, which President Zaccari claimed was an “indirect” threat against his life because it used the word “memorial.” Within a few days, Hayden was locked out of his dorm room and ordered to leave campus. The notice’s promise of an appeal if he received a “certificate of mental health” from a psychiatrist proved a false hope. Not only did Hayden provide the certificate and letters verifying his mental health from both a psychiatrist and a psychologist, but he also wrote a detailed and impassioned appeal, arguing that his sudden expulsion because of political speech without so much as a hearing, formal charges, or a chance to respond was a violation of his constitutional rights to due process and free speech, not to mention the university’s own policies. Despite the fact that the law was overwhelmingly on his side and that he had done everything the university asked him to do, his appeal was denied.4 The euphemistic term “administrative withdrawal” was revealed for what it was: permanent expulsion.
The punishment of Hayden Barnes for a collage on Facebook may seem like an extreme case, but it isn’t all that exceptional. A popular misconception is that battles for free speech on campus were fought and won in the 1960s, and that free speech emerged victorious again after a challenge by politically correct speech codes in the 1990s. I am sorry to report that this is not the case. The VSU president’s attitude towards dissent is replicated by administrators both high and low at too many colleges across the country, where differences of opinion are not viewed as opportunities to learn or to think through ideas. Instead, dissent is regarded as a nuisance at best, and sometimes as an outright threat—even when it’s only about a parking garage.
That’s why there is plenty of work to do at my organization, the Foundation for Individual Rights in Education (FIRE), which defends free speech rights and other student rights on campuses around the country. FIRE learned about the troubles of Hayden Barnes in fall 2007 through an article in a Georgia newspaper. When I first met Hayden in the winter of 2008, I felt like I was being reacquainted with an old friend from college. He was mellow, with a scruffy hippie beard, and lived with his irresistibly lovable girlfriend in a small apartment in southern Georgia. We liked the same music, we were both Democrats and environmentalists, and we even studied the same kind of Buddhism. His understated and calm manner made it all the more impressive to me that he was an EMT—and all the more strange that Valdosta State University had called him a “clear and present danger” to the campus. For First Amendment lawyers, students of history, and fans of Tom Clancy, “clear and present danger” is a legal doctrine arising from World War I that refers to grave threats to the nation itself, such as encouraging sabotage, espionage, outright revolt, or other forms of terrorism and treason.
FIRE researched the case thoroughly and wrote a letter to the university demanding an explanation.5 After VSU failed to adequately respond to our letters, we started issuing press releases, our standard weapon in fighting abuses on campus. FIRE’s unofficial motto is that colleges cannot defend in public the rights violations they commit in private, and as president of FIRE, I have seen hundreds of colleges and universities back down in the face of public embarrassment. But VSU would not budge.6 Finally, we enlisted the help of Robert Corn-Revere, an eminent First Amendment attorney, and after he filed suit in January 2008, the VSU Board of Regents finally reversed the university’s decision against Hayden and offered him readmission.7 Hayden—who was by then completing his education at another college—understandably declined.
The court’s opinion revealed a number of previously hidden facts that made the case even worse than we at FIRE had known. Internal documents and testimony showed it was Hayden’s opposition to the parking garage, not fear of mortal danger, that led the VSU president to expel him.8 Zaccari even called Hayden into an hour-long meeting to harangue him about the parking garage, asking him, “Who do you think you are?” and stating that he “could not forgive” him. This attempt to browbeat and guilt-trip a student out of a strongly held position is fairly typical in my experience, and if it fails, campus administrators have a toolkit of policies and rationales they can use to punish students who do not back down.
Over the course of just a few weeks in the spring of 2007, Zaccari held meeting after meeting with his administration on what to do about Hayden, despite being told repeatedly by his staff that Hayden was not a threat, that Hayden deserved due process if Zaccari planned to punish him, and that the president couldn’t just kick a student out of school over a disagreement. According to the court’s opinion, Zaccari even ordered staff to look “into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office.”9
The VSU Access Office is the university’s department for students with disabilities. Zaccari learned that Hayden had sought counseling for depression and anxiety, which he tried to use as justification for ruling him a threat. He talked to a campus counselor and to Hayden’s psychologist, both of whom told him in no uncertain terms that Hayden was not a danger to himself or anyone else. Indeed, for all the prying Zaccari did, it would have been difficult for him to miss that Hayden was a decorated EMT and a believer in nonviolence.
Finally, Zaccari seemed to give up trying to convince anyone that Hayden was a threat and instead announced that he would exercise his presidential authority to expel him unilaterally, without a hearing or even prior notice, both of which are required by Valdosta State policy and by the Bill of Rights.
In light of this evidence, the court ruled that President Zaccari had violated Hayden’s due process rights so clearly and brazenly that he should be held personally and financially liable for damages. This is a severe penalty, as government employees are usually protected by “qualified immunity.” The ruling showed that the judge believed Zaccari knew, or at least should have known, he was violating Hayden’s constitutional rights by kicking him out of college. Zaccari appealed the ruling, but in February 2012 the Eleventh Circuit Court of Appeals upheld the finding against Zaccari.10 At this writing, Hayden is poised to graduate from law school (inspired to attend because of his experiences in this case) and that lovable girlfriend is now his wife.
But while things are working out for Hayden, it took an aggressive campaign by FIRE and a federal lawsuit to vindicate his rights—rights that were firmly established by the Supreme Court even at the time he was punished in 2007.
Campus Censorship: Alive and Thriving
On college campuses today, students are punished for everything from mild satire, to writing politically incorrect short stories, to having the “wrong” opinion on virtually every hot button issue, and, increasingly, simply for criticizing the college administration just as Hayden Barnes was. In the coming pages, you will see a student punished for publicly reading a book; a professor labeled a deadly threat to campus for posting a pop-culture quote on his door; students required to lobby the government for political causes they disagreed with in order to graduate; a student government that passed a “Sedition Act” empowering them to bring legal action against students who criticized them; and students across the country being forced to limit their “free speech activities” to tiny, isolated corners of campus creepily dubbed “free speech zones.” You will see Christian students being banned from watching The Passion of the Christ, while another college financially sponsored an angry mob’s censorship of a play making fun of The Passion of the Christ. Meanwhile, schools as venerated as Yale and Harvard have gotten into the censorship act for things as seemingly inoffensive as quoting F. Scott Fitzgerald. And all of this is happening at the very institutions that rely most on free speech, open exchange, and candor to fulfill their mission. At the same time, we are paying more and more for higher education, which, perversely, expands the very campus bureaucracy