The ruling also find the four administrators including former Senior Vice President Warren Madden, former Senior Vice President for Student Affairs Tom Hill and Leesha Zimmerman, director of ISU’s trademark office can be held personally responsible for violating the students’ constitutional rights, setting up the potential for the students to seek monetary damages.
Iowa taxpayers would be responsible for paying, since state law indemnifies state employees sued in federal court for action pertaining to their jobs.
The students, Paul Gerlich and Erin Furleigh, planned in 2012 to print T-shirts “NORML ISU” on the front with the university’ mascot, Cy the Cardinal. On the back the shirt read, “Freedom is NORML at ISU” with a small cannabis leaf above NORML.
The university initially approved the group’s design but later blocked it claiming it violated the school’s trademark policy after getting pressure from conservative lawmakers and an appointee of then-Republican Gov. Terry Branstad.
The students sued in July 2014 and in early 2016 U.S. District Judge James Gritzner ruled the administrators violated the students’ free speech rights and barred the university from prohibiting printing the T-shirt. The administrators appealed.
The appeals court in February agreed with Gritzner, concluding that the administrators’ unusual trademark approval process for the NORML group was motivated in part by political pressure and confirmed that universities cannot discriminate against students or their advocacy organizations based on political views.
The court ruling also denied the administrators’ contention that they had qualified immunity, a legal protection available to public officials who are found to have made reasonable decisions and who do not knowingly violate the law.
The university administrators asked the appeals court to rehear the case and in an unusual move the three-judge appeals panel that decided the case unanimously chose to rehear it. On Tuesday they reaffirmed their earlier decision, however, this time on a 2-1 vote with two Democratic presidential appointees concluding since the university officials took action that violated the former students’ First Amendment rights they’re not protected by qualified immunity.
James Loken, a George W. Bush appointee disagreed and wrote in a dissenting opinion the case is different enough from others that there is no precedent for holding school officials personally responsible for the actions specified in this case.
The attorney for the students, Robert Corn-Revere, said Wednesday they plan to “pursue all available remedies.” They include seeking compensatory damages and attorney fees once the appeals process is exhausted.
The case, even though it centers on the pro-marijuana legalization group, drew support from several conservative organizations including anti-abortion and campus free speech groups. Their attorney, Casey Mattox said the finding of personal responsibility is important part of Tuesday’s decision.
“What we find with many universities is they’re violating students’ free speech rights and there’s little accountability. A decision like this helps to build accountability into the law where they have to make sure they’re not violating students’ rights rather than just being able to rely upon on the courts later,” Mattox said.
Of the four administrators only Zimmerman remains at the university. Leath left last month to head Auburn University. Madden and Hill retired last year.
The university could appeal the decision by seeking further review in the 8th Circuit or by asking the U.S. Supreme Court to review it.
“Iowa State has received the order, and we’re evaluating next steps,” said spokeswoman Annette Hacker.