Legislative Retaliation against University Speech

[Michael MASINTER]

It is true that section five empowers congress to enact remedial
legislation abrogating the eleventh amendment immunity of states in the
face of a history of state conduct violationing the fourteenth amendment,
but it has not done so through any legislation relevant to the
hypothetical claim here.  Absent specific section five legislation, the
eleventh amendment looms as a virtually insurmountable barrier.  I say
"virtually" because Milliken permits ex parte Young suits to compel the
spending of state money to forestall future unconstitutional conduct, but
Milliken only involved a reallocation of state money already earmarked for
educational spending.  A suit which seeks to compel the expenditure of
funds never appropriated by the legislature for any purpose pushes
Milliken substantially beyond any previous holding, and raises core
federalism concerns, at least in the absence of section five legislation.

State court litigation presumably would fare no better because of Alden v.
Maine, assuming no parallel remedy under the state constitution.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Sun, 7 Apr 2002, William D Rich wrote:

> Michael Masinter rightly points out that there would be significant
> questions concerning the availability of an appropriate remedy.  What I
> meant and should have said was that the reduction of the University's
> budget explicitly because a faculty member had engaged in protected
> speech violates well established principles of free speech.  John Parry
> had already pointed out one practical problem with the enforcement of the
> First Amendment in this instance:  namely, that the University might be
> politically ill-advised to challenge the funding cut.  I pointed out that
> the budget cut wouldn't be an effective means of punishing the faculty
> member's speech unless either (1) the University disciplined the faculty
> member, in which case the University would be liable to a First Amendment
> claim on the part of the faculty member, or (2) the faculty member cares
> about the well-being of the University and is inhibited by the threat of
> future budgetary reprisals against the University, in which case his or
> her standing to litigate the claim is questionable.
>
> As far as the remedy is concerned, I don't think the main obstacle is the
> 11th Amendment, as Michael seems to suggest.  The claim would assert
> rights under the 14th Amendment, so there could be abrogation of 11th
> Amendment immunity.  (There could also be waiver of sovereign immunity if
> the suit were brought in state court.)  The main difficulty, I think,
> arises from the fact that what is being challenged is a (presumably
> unconditional) legislative appropriation.  If the legislation were
> conditional in nature (e.g., the University's subsidy shall be reduced by
> $100,000 in the event that the University fails to discipline the faculty
> member for his or her speech), a court could just enjoin enforcement of
> the condition (even though the consequence would be a legislatively
> unauthorized expenditure).  Courts frequently compel states to expend
> money by enjoining or otherwise preventing things the legislature wants
> accomplished (e.g., criminal convictions) unless the state provides
> required subsidies (e.g., appointed counsel for indigent defendants).  It
> isn't obvious what mechanism would be available to force the expenditure
> here without directly enjoining the legislature to appropriate the funds
> (which I agree is not something a federal court would do), but Missouri
> v. Jenkins suggests that there various ways in which this might be done,
> depending on the (to me, at least, unknown) specifics of the situation.
>
> Bill Rich
> Univ. of Akron Law School
>
>
> At 11:45 PM 4/5/2002, you wrote:
>
>       I am curious about why the claim below would be easy.  I take
>       the claim to
>       be that the legislature unconstitutionally refused to
>       appropriate money,
>       and therefore the relief to be the provision of that money.
>       Who is the
>       defendant? Individual legislators enjoy absolute immunity per
>       Tenney v.
>       Brandhove. The state enjoys 11th amendment / sovereign
>       immunity.  An ex
>       parte Young claim against a state treasurer in his/her
>       official capacity
>       seeking to compel the writing of a check for unappropriated
>       funds surely
>       raises serious eleventh amendment issues under Edelman v.
>       Jordan, Quern v.
>       Jordan, Seminole Tribe and Coeur d'Alene since it is, in
>       substance, an
>       order granting monetary relief against the state.
>       Collectively those
>       cases suggest that far from being easy, the claim may be
>       fruitless.
>
>       Michael R. Masinter                     3305 College Avenue
>       Nova Southeastern University            Fort Lauderdale, Fl.
>       33314
>       Shepard Broad Law Center                (954) 262-6151
>       masinter at nova.edu                       Chair, ACLU of
>       Florida Legal Panel
>
>       On Fri, 5 Apr 2002, William D Rich wrote:
>
>       > If the legislature makes it explicit that, as punishment
>       for a faculty
>       > member's having engaged in protected speech, the University
>       is being funded
>       > at a lower level than it otherwise would be funded, the
>       free speech claim
>       > should be pretty straightforward.  As John Parry has
>       observed, however, the
>       > University may well forgo such a claim for political
>       reasons.  (The
>       > University should have standing to assert the free speech
>       rights of the
>       > faculty member because of the substantial relationship that
>       exists between
>       > the University and the faculty member.  Whether it, as an
>       institution, has
>       > its own free speech rights against the state is not an easy
>       question, as
>       > others have pointed out.)
>       >
>       > More interesting perhaps is the question of whether the
>       faculty member
>       > could successfully assert a free speech claim were the
>       University to choose
>       > not to.  If the cut in funding is to succeed in punishing
>       the speech of
>       > which the legislature disapproves, it would have to be
>       either (1) by
>       > causing the University in turn to punish or restrict the
>       faculty member's
>       > speech, or perhaps (2) by deterring the faculty member from
>       engaging in
>       > such speech because he or she cares about the well-being of
>       the his or her
>       > University and does not wish to cause the University to
>       suffer the
>       > consequences of funding cuts.  Either way, the faculty
>       member should have a
>       > meritorious claim.  If the legislature, by cutting the
>       University's funding
>       > expressly as punishment for the faculty member's engagement
>       in protected
>       > speech, were to induce the University to punish or restrict
>       the faculty
>       > member's speech, the University's action would be
>       unconstitutional and the
>       > legislation that prompted it would afford the University no
>       defense.  If,
>       > on the other hand, the University takes no action against
>       the faculty
>       > member, the only way the budget cut might inhibit free
>       speech would be by
>       > causing the faculty member to self-censor for fear that
>       speaking out would
>       > redound to the detriment of his or her beloved (or at least
>       beliked)
>       > University.  A governmental act that punishes one person
>       for the
>       > constitutionally protected speech of another, not on the
>       theory that the
>       > person being punished should have exercised control over
>       the speaker (a
>       > form of vicarious liability) but rather on the theory that
>       the speaker
>       > cares about the person being punished and therefore may be
>       inhibited from
>       > speaking, violates not one but two constitutional norms:
>       freedom of speech
>       > and what has been called the corruption-of-blood principle
>       (but might
>       > better be termed the vicarious punishment prohibition).  If
>       the University
>       > does not take or threaten action against the faculty
>       member, the biggest
>       > obstacle to a successful challenge by the faculty member
>       may be the
>       > requirement of injury for standing to litigate the claim.
>       >
>       > Bill Rich
>       > Univ. of Akron Law School
>       >
>       >
>
>
>