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The Supreme Court Hears Case About Nominal Damages

On January 12, 2021, the United States Supreme Court heard oral arguments in Uzuegbunam v. Preczwski, which tackles the question of whether a lawsuit seeking nominal damages is rendered moot if the unconstitutional law or policy is revised during the course of litigation.

By way of background, Chike Uzuegbunam is a former student of Gwinnett College in Georgia.  While a student there, Mr. Uzuegbunam engaged in outdoor evangelism and distribution of religious literature with those on campus. College officials, however, stopped Mr. Uzuegbunam from sharing his faith with others by requiring him to obtain advanced permission to speak and limiting his speech to a “speech zone” that comprised less than 1% of the campus and which was only open 10% of the week. And though Mr. Uzuegbunam complied with these rules, officials still prevented him from sharing his faith. As a result, Mr. Uzuegbunam filed a lawsuit seeking a declaration that the school violated his constitutional rights and also seeking nominal damages. In response, the school changed its policy and argued that the case was therefore moot. Two lower courts agreed with the school, finding that a claim for nominal damages cannot save a lawsuit that is otherwise moot.

Nominal damages are a small money award that legally recognizes someone’s rights were violated. Nominal damages are often awarded in constitutional and civil rights cases because such rights have inherent value which transcends money, and it can be difficult to quantify harm in such cases.  As Justice Samuel A. Alito Jr. noted, nominal damages are key where “a real concrete violation that can’t be easily monetized.” Mr. Uzuegbunam and his lawyers have also emphasized the point that government officials must be held accountable. The argument goes that if government actors could simply moot similar lawsuits by changing their policies after they were sued, there is no real accountability. Nor would there be much incentive for such actors to promote and maintain policies which conform to the Constitution. On the contrary, government actors could continue violating the Constitution unless and until those affected file lawsuits. Opponents have argued that a suit seeking nominal damages pursued even after the government revises the challenged policy is nothing more than wanting a determination that a plaintiff was right, something akin to an advisory opinion which courts are not permitted to give. Both sides faced tough questions from the justices and a decision in the case is due later this year.

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