In Uzuegbunam v. Preczewski, 592 U.S. ___ (2021), the United States Supreme Court held that plaintiffs asserting constitutional rights have standing to sue for past injuries, even if they only seek nominal damages.  The decision is significant for public entities, but especially public schools, colleges and universities.

In Uzuegbunam, Chike Uzuegbunam, a student enrolled at Georgia Gwinnett College, attempted to proselytize at an outdoor plaza on campus.  A campus police officer quickly ordered Mr. Uzuegbunam to stop, and informed Mr. Uzuegbunam that campus policy prohibited him from distributing written religious materials in the area.  Mr. Uzuegbunam complied with the officer’s directive.

Thereafter, Mr. Uzuegbunam met with the College’s Director of the Office of Student Integrity, who was responsible for enforcing the policy.  Mr. Uzuegbunam asked if he could speak about his religion if he refrained from distributing materials, but the official denied the request.  Instead, the official explained that Mr. Uzuegbunam could only speak about his religion or distribute materials in two designated “free speech expression areas,” which comprised just .0015 percent of campus.  Mr. Uzuegbunam was also required to obtain a permit. 

Mr. Uzuegbunam obtained the required permit, and began speaking in one of the free speech zones.  After speaking for just twenty minutes, however, another campus police officer told Mr. Uzuegbunam to stop speaking.  The officer informed Mr. Uzuegbunam that his speech violated a campus policy that prohibited using the free speech zone for anything that “disturbs the peace and/or comfort of person(s)” because people had complained about Mr. Uzuegbunam’s speech.  The officer threatened Mr. Uzuegbunam with disciplinary action if Mr. Uzuegbunam did not stop speaking. Mr. Uzuegbunam complied with the officer’s directive. 

Mr. Uzuegbunam then filed suit against the College arguing that the College’s speech policies violated the First Amendment.  Importantly, Mr. Uzuegbunam sought nominal damages and injunctive relief.  The College initially defended the policies arguing that Mr. Uzuegbunam’s discussion of religion “arguably rose to the level of fighting words.”  However, the College quickly abandoned that strategy, and did away with the challenged policies.  The College then moved to dismiss the case, arguing that the case was moot because the challenged policies were no longer in place.  Mr. Uzuegbunam agreed that injunctive relief was no longer available because the College changed the policies, but contended that the case was still live because he sought nominal damages.  The District Court agreed with the College and dismissed the case.  The Eleventh Circuit Court of Appeal affirmed, and Mr. Uzuegbunam appealed to the United States Supreme Court. 

The United States Supreme Court began its analysis by noting that standing requires 1) an injury in fact; 2) that is fairly traceable to the challenged conduct; and 3) a remedy that is likely to redress that injury.  There was no dispute that Mr. Uzuegbunam satisfied the first two elements.  Instead, the parties disputed whether Mr. Uzuegbunam’s request for nominal damages satisfied the third element. 

In an 8-1 decision with Chief Justice John Roberts dissenting, the Court ruled that a request for nominal damages satisfies the third element, and litigants therefore have standing to sue.  Justice Clarence Thomas, writing for the majority, wrote that “[n]ominal damages are not a consolation prize for the plaintiff who pleads, but fails to prove compensatory damages.  They are instead the damages awarded by default until the plaintiff establishes entitlement to some other form of damages, such as compensatory or statutory damages.”  Justice Thomas also relied heavily on the common-law history of nominal damages.  While early courts required plaintiffs to prove actual monetary damages, “later courts [] reasoned that every legal injury necessarily causes damage, so [courts] awarded nominal damages absent evidence of other damages (such as compensatory, statutory, or punitive damages), and they did so where there was no apparent or continuing or threatened injury for nominal damages to redress.”  Justice Thomas concluded that “[b]ecause nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.”   

Moving forward, public entities will no longer be permitted to seek dismissal of cases on mootness grounds once they change or withdraw their challenged policies.  As Justice Brett Kavanaugh noted in a concurring opinion, however, public entities should still be able to bring litigation to an end by consenting to entry of a judgment for nominal damages.  If done early, this tactic may limit the amount of attorney’s fees sought by the plaintiff.  Thus, if a public entity is facing a well-founded Constitutional challenge to a policy and the plaintiff is only seeking nominal damages, the public entity should consider changing its policies and consenting to entry of a judgment for nominal damages to end the litigation and limit its exposure for the plaintiff’s attorney’s fees.