• April 18, 2014

Federal Judge Finds Former College President Personally Liable in Student-Conduct Case

A former public-university president who unilaterally dismissed a student may be held personally liable for legal damages, a federal court in Atlanta ruled last week.

The case involves Ronald M. Zaccari, a former president of Valdosta State University, and T. Hayden Barnes, who, as a sophomore in the spring of 2007, had protested plans to build parking garages on the campus by, among other things, posting fliers and a collage that referred to a "memorial parking deck." That May, Mr. Zaccari informed Mr. Barnes in a letter that he presented a "clear and present danger" and had been administratively withdrawn from Valdosta State.

Mr. Barnes appealed to the Board of Regents of the University System of Georgia, and in early 2008, as the process stalled, he sued in federal court. A few days later, the regents overturned his expulsion, but Mr. Barnes pursued the lawsuit with support from the Foundation for Individual Rights in Education.

"It was no longer about getting Hayden back in school," said Will Creeley, director of legal and public advocacy for the group, "but rather righting the clear wrong that had been committed against him."

On Friday a federal judge said that Mr. Zaccari, who discounted the opinions of counselors and fellow administrators that Mr. Barnes was not a threat, violated his due-process rights. Courts generally expect public universities to give students some type of notice and afford them a hearing before taking any disciplinary action.

Mr. Zaccari also disregarded advice from university lawyers about those requirements, wrote Judge Charles A. Pannell Jr. of the U.S. District Court in Atlanta. "The undisputed facts show that Zaccari ignored the lawyers' warnings that withdrawing Barnes would require due process."

By violating "clearly established" law, the judge said, Mr. Zaccari is not protected under the sovereign immunity constitutionally granted to state institutions.

The ruling also found the regents liable for breach of contract, because the university did not follow policies and procedures in its student handbook, which the judge determined to be a binding agreement between students and the board. Courts differ on the legal standing of such documents, but Judge Pannell was clear: "The VSU Student Handbook provided to Barnes upon enrollment constituted a valid, written contract."

The case will now proceed to a damages phase, as the court determines how much, if anything, Mr. Barnes is owed.

The Georgia system declined to comment on pending litigation. And a lawyer representing Mr. Barnes, Robert Corn-Revere, declined to discuss the damages his client would request. Mr. Barnes never returned to Valdosta State but graduated from Kennesaw State University and is now enrolled at the University of Baltimore School of Law.

FIRE, meanwhile, declared it had won a victory against the authoritative whims of administrators everywhere. "There might be a sense in a small state school," Mr. Creeley said, "that you can run the place like a fiefdom without fear of consequence."

Using the Label 'Threat'

Mr. Barnes was dismissed from Valdosta State a few weeks after the shootings at Virginia Tech. At that time, university judicial systems were already becoming less legalistic, and students' due-process rights were eroding, said Gary Pavela, a lawyer who frequently consults with colleges. Changes in policy and perspective after the tragedy at Virginia Tech have further jeopardized students' rights, he said.

"It's a great temptation to seize upon the fears that arose out of Virginia Tech and apply the label of 'threat' or 'perceived threat,' and then use it to get rid of people who bother us," said Mr. Pavela. "We are getting a little bit ahead of ourselves in thinking we can dispense with due process."

At Valdosta State, Mr. Zaccari had discussed Mr. Barnes's actions with staff members who typically compose a threat-assessment team: a counselor, a police officer, a lawyer, and student-affairs administrators.

Decisions about how to proceed when a student's conduct has raised concern are inevitably tricky, said Allen W. Groves, dean of students at the University of Virginia, who is also a lawyer.

"Obviously you're always trying to see where the line falls," Mr. Groves said. Even when a student is perceived as a threat, "those due-process rights don't go away," he said. "There has to be some opportunity to be heard."

Several lawyers characterized the Valdosta State case as the tale of an outlier president, as well as a reminder to follow due-process procedures. One saw it as a victory for midlevel staff members, like the ones who had recommended against dismissing Mr. Barnes.

"A dominant administrator can too easily ram something through," said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. "Let the people who know what they're doing do their job."

Comments

1. 22228715 - September 08, 2010 at 07:13 am

Higher Ed Law 101 for anyone who has a higher ed degree... Fair play = notice and a chance for him to tell his side of the story. And, at a public institution, this is extremely non-optional. Darn, I hate it when FIRE is right...

2. sagrube - September 08, 2010 at 08:43 am

It is astounding to me that in this day and age an individual who displayed enough competence to be hired as a President could so blatantly ignore the reasoned counsel of so many.

3. tee_bee - September 08, 2010 at 09:04 am

I hope that few, if any, boards of trustees or top administrators worry too much about this decision. It appears that the courts are saying that a president of a university who behaves like a fool, confident of his rectitude against near-unanimous counsel, is personally liable for doing something really stupid. This teaches an important lesson: don't do stupid stuff.

4. laker - September 08, 2010 at 09:44 am

@tee_bee

"the courts are saying that a president of a university who behaves like a fool, confident of his rectitude against near-unanimous counsel, is personally liable for doing something really stupid"

isn't this the definition of hubris?

"This teaches an important lesson: don't do stupid stuff."

I couldn't agree more...

5. softshellcrab - September 08, 2010 at 10:30 am

Whoa! Do the posters above realize that this pertains to all of us in higher education, or at least to those of us in state schools? This case breaks new ground, and it should not stand. You don't have to be president. It pertains equally to every department chair, dean OR FACULTY. It says if the decision maker has given less than due process, he or she could be held personally liable. Not the school, but the individual. The proper way to police this apparently stupid and arrogant behavior would have been for the university to possibly be liable, but not the individual. Do you realize what this opens up? All hiring decisions, bad grades, actions against unruly students - all are open to a question of whether due process was followed, and now leave the decision maker open to personal attack if it is judged (in a judge's or jury's opinion, remember. That O.J. jury was sure an agent of good judgment, weren't they?) to be an action taken without due process. It opens up a real can of worms. Forget this particular clown in this case. Think about the broader issue of what is being established here. I don't agree with this at all, and it sounds very "chilling".

6. 11284814 - September 08, 2010 at 10:55 am

With all possible respect for # 5, the decision really doesn't say that any mistake, including a mistake that deprives one of due process, creates personal liability. It has to be a decision that violates clearly established law. I have no difficulty concluding that the president did ignore clearly established law, and I don't have any concerns that this will unduly burden us in academia.

7. contreras - September 08, 2010 at 11:14 am

The most interesting aspect of this case is that the student handbook is treated unambiguously as a contract. Many schools declare that their publications are not contracts. It will be worth tracking that part of the decision if there are any appeals.

Alan Contreras
Oregon

8. 11223435 - September 08, 2010 at 11:16 am

Assumptions about this man's competence and his performance at his interview are just that: assumptions. After a very difficult search, when folks at the "head office" in Atlanta apparently stopped several campus choices from moving forward, on the basis of blackballing by one or two "votes" in those offices, and other later candidates were slammed by provincial expectations about spouse participation in the president's activities...this guy just showed up one day, brought out of his planned retirement in his sculpting studio.

9. theblondeassassin - September 08, 2010 at 11:21 am

The failure of a university to follow its own procedures, as published, is the most common reason for the UK's Office of the Independent Adjudicator (OIA) to uphold student complaints.

You think that people would learn after a while that if you have a process, you have to stick to it.

10. 12080243 - September 08, 2010 at 11:41 am

If you think this kind of presidential misconduct cannot happen to a tenured full professor, you're clearly mistaken. And if you think that administrators should be given immunity, you're mistaken again. They have too much power and very little accountability. When I questioned the wasteful spending habits of administrators and their toadies at the University of Southern Mississippi, I was labeled a danger and summarily banned from the College of Business building (but oddly not the entire campus).

Three years have passed since Martha Saunders, President of the University of Southern Mississippi banned me from teaching, service, faculty governance rights, and the College of Business building without even the courtesy of talking to me much less exercising proper due process. Martha Saunders, having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was questioned recently in a deposition re litigation styled DePree v. Saunders, et al. Read details of truly ridiculous administrative behavior: "What President Saunders Thinks". Keep in mind by conservative estimate the cost President Saunders incurred to investigate me and conduct this campaign against my speech was between $2 million and $2.5 million.

President Saunders is the same university president who was recently highlighted in the Chronicle, among other publications, for firing tenured faculty for "economic exigencies." There is no "economic exigencies" when it came to her multimillion dollar purchase during a recession of an airplane to fly her and other high administration personnel around the state. Trouble is the Institutions of Higher Education in Mississippi, instead of holding Saunders accountable, is using the airplane, too, i.e., they are participating in squandering taxpayer and student money. There's no accountability for such nonsense. See, www.usmnews.net, "President Saunder's Extravagance".

Chauncey M. DePree, Jr., DBA
Professor
School of Accountancy
College of Business
University of Southern Mississippi

11. 11272784 - September 08, 2010 at 12:06 pm

The need for due process is well supported in this case. Students are not chattels to be dismissed at a whim.

12. softshellcrab - September 08, 2010 at 12:12 pm

@ No. 6. 11284814

I appreciate your comment, but I am holding to my point. I bet if you are either a faculty or an administrator, that a detailed perusal of all your actions/decisions over the past, say, five years would yield a number of actions/decisions that can be quite plausibly argued to have "violated clearly established law". Same with me or anyone else (probably worse for me!) I guess I am saying I don't think it's nearly as clear a delineation as you see it as. Maybe I'm wrong, I don't know. I just don't like the individual liability aspect of this. Those of us who cause liability for our institution by doing boneheaded things will be taken to task for it.

13. landrumkelly - September 08, 2010 at 12:46 pm

"I just don't like the individual liability aspect of this."

Some people like to hide behind groups, thinking that they will thereby escape responsibility for their misdeeds.

God is full of surprises, and occasionally so is a federal judge.

Landrum Kelly, Jr.

14. amnirov - September 08, 2010 at 12:55 pm

FIRE does more to protect academic freedom than the next to useless AAUP or any faculty organization. Three cheers for FIRE!

15. 22011344 - September 08, 2010 at 04:23 pm

The law on individual liability for intentional acts of employees (servants) has been well established since the middle part of the 19th century. If a driver (employee) negligently causes an intersection collision, the driver generates liability for the employer under the doctrine of respondeat superior. If the driver after the collision, assaults the other driver, that intentional act will be outside of the umbrella of the employer's liability. Here the intentional act was denying the student's constitutional right to due process.
As for poster #14, I would like to see some empirical support for the declaration that FIRE has done more for free speech rights than the AAUP. That claim without any support has about same credibility as the Administration telling us in the 1960's that "there is light at the end of the tunnel" in re Viet Nam.

16. jaysanderson - September 08, 2010 at 08:18 pm

I echo what has been written already: Write policies and follow them. No one, not even our god-like university presidents, can be allowed to operate above laws and rules.

I also agree with an earlier contributor who said that college presidents have too much power. They do, way too much, and egos to match, most of them. Damn shame, isn't it? They are in a position to do so much for so many and much of it is squandered in vanity construction and self-serving projects. Just a damn shame.

17. abichel - September 08, 2010 at 08:38 pm

I am a three-time alumnus of VSU and an avid advocate of student activism at same. The president was wrong to take it upon himself to render this decision - his position does not embody that level of authority. Due process would have resolved the problem. Thank God for lawyers, and chalk one up for the hell raisers!

18. 12080243 - September 08, 2010 at 10:36 pm

Please be aware that due process does not guarantee a just outcome. As a matter of fact, when a corrupt university president is more subtle than a clumsy President Zaccari, it is quite simple, during due process, for him/her to--for example--select, as is their prerogative, an ombudsman to investigate. The ombudsman I have in mind is Gordon C. Cannon. We had the opportunity to question him under oath about his performance as an ombudsman--a privilege for which I am grateful. A question may give you a flavor of what a scientist by training thinks as he performs his duties for a corrupt president. Question to Cannon: “If (someone) told you something, and it wasn't true, and you based your recommendation (in your ombudsman report) on that fact, would that change your recommendation?” Cannon's answer: “I don't think it would change anything.” For details about the deposition of Cannon, see www.usmnews.net: "Gordon C. Cannon, University Ombudsman." Truth is due process is very important, but, just as important, do not assume that it is done with integrity. Devotion to truth and evidence is not to be forgotten in the process of giving one his/her due.

Chauncey M. DePree, Jr., DBA
Professor
School of Accountancy
College of Business
University of Southern Mississippi
m.depree@usm.edu

19. fsweitz3 - September 09, 2010 at 12:26 pm

Due process rights aside for a moment, am I missing something? How could this student's behavior have been construed as threatening or dangerous?

20. princeton67 - September 09, 2010 at 03:54 pm

"Former College President": Why "Former"? Because three weeks (Oct. 24 to Nov. 14, 2007) after expelling Barnes, President Zaccari announced his retirement! Go to http://www.valdosta.edu/news/releases/zaccari.111407/. All fulsome praise - not a word about Barnes' expulsion.

21. 22079340 - September 09, 2010 at 06:00 pm

One has to wonder how and whether this kind of ruling, wherein a college acts to "get rid of a person who bothers" them, might apply to faculty and staff against whom trumped up charges of being "threatening" are "resolved" through grievance processes in which faculty and staff express little confidence.

Granted that the AAUP has become a toothless lion; however, it would be enlightening to know what FIRE's take is on this issue.

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