240. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).241. Id. at 287. In Mt. Healthy, the trial court had found that the plaintiff's release of a memoregarding the defendant's adoption of a dress code for teachers was a "substantial factor" in thedefendant's decision not to rehire him. The Court remanded the case for a determination ofwhether the defendant would have reached the same decision on the grounds that the plaintiff hadhad arguments with school employees, referred to students as "sons of bitches," and made anobscene gesture to two girls when they failed to obey his commands as cafeteria supervisor. TheCourt ruled that if his contract would not have been renewed for the latter reasons, he could notbe reinstated, even though his dismissal stemmed in part from his exercise of protected free speechrights.242. In the words of the Court, "[t]he constitutional principle at stake is sufficiently vindicatedif such an employee is placed in no worse a position than if he had not engaged in the conduct."Id. at 285-86.The lower courts have also applied a restrictive test of causation in first amendment actionsfor damages. See, eg., Stoddard v. School Dist. No. 1, 590 F.2d 829, 834 (10th Cir. 1979); Buise v.Hudkins, 584 F.2d 223, 231 (7th Cir. 1978).243. See, eg., Bishop v. Pecsok, 431 F. Supp. 34,37 (N.D. Ohio 1976); Hughes v. Dyer, 378 F.Supp. 1305 (W.D. Mo. 1974).244. E.g., Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349-50 (7th Cir. 1970).HeinOnline -- 67 Cal. L. Rev. 1271 1979
CALIFORNIA LAW REVIEWIVNOMINAL DAMAGESThe Carey Court held that nominal damages are recoverable forany violation of procedural due process, regardless of whether the re-sulting substantive deprivation of life, liberty, or property is deemed tobe justified.245 Significantly, the Court authorized the recovery of nom-inal damages not only to perform a declaratory function,246 but also tovindicate a legal right.247 Noting that common law courts "tradition-ally have vindicated deprivations of certain 'absolute' rights that arenot shown to have caused actual injury through the award of a nominalsum of money," the Court concluded that the right to procedural dueprocess is absolute both because "of the importance to organized soci-ety that procedural due process be observed" and because "it does notdepend upon the merits of a claimant's substantive assertions.'248The Court specified that the nominal damage award should notexceed the standard sum249 of one dollar.250 This part of the Court'sdecision will eliminate the confusion that has been generated by lowercourt opinions awarding "nominal" damages approaching $1,000.2"1However, the insubstantial amount of an award of nominal damagesunderscores its limited utility as a separate and independent remedy.Apart from the possibility of bringing a class action,252 potential plain-tiffs are not apt to initiate constitutional tort litigation to recover nomi-nal damages alone.