Congress Moves to Close Attorney's Fees Loophole in Free Speech Cases Against Public Universities

A newly introduced bill in the House aims to restore the ability of plaintiffs to recover attorney's fees in civil rights litigation, including First Amendment challenges to public university speech policies, following a 2025 Supreme Court decision that limited such recoveries. The Restoring Civil Rights Attorney’s Fees Act of 2026 (H.R. 10335), sponsored by Rep. Glenn Grothman (R-WI), was introduced on September 10, 2026, and referred to the House Judiciary Committee. It amends 42 U.S.C. § 1988 to clarify that a party qualifies as 'prevailing'—and thus eligible for fees—when they obtain a preliminary injunction or temporary restraining order that materially alters the legal relationship between parties and is not reversed, even if later vacated on mootness grounds. The legislation explicitly responds to Lackey v. Stinnie (604 U.S. 192, 2025), a 7-2 decision authored by Chief Justice John Roberts holding that preliminary injunctions alone do not render plaintiffs 'prevailing parties' under the Civil Rights Attorney's Fees Award Act of 1976 when a case becomes moot before final judgment. In that case, Virginia drivers challenged a law suspending licenses for unpaid fines and won a preliminary injunction, but the suit ended without fees after the law was repealed. Legal analysts and free speech advocates argue the ruling creates a strategic disadvantage: public universities, funded by taxpayers, can litigate aggressively or moot cases after an adverse preliminary ruling, draining resources from advocacy groups without reimbursement. Jonathan Turley, in a September 30, 2026, column, highlighted this dynamic in the context of higher education, noting universities' use of public funds to defend speech-restrictive policies while small public interest groups bear the costs. Coverage in The EDU Ledger (September 27, 2026) frames the bill as directly benefiting campus free speech plaintiffs by broadening fee eligibility to include enforceable preliminary relief, settlements, or voluntary policy changes that moot litigation. This development underscores broader tensions in U.S. political discourse, where legal mechanisms increasingly shape the boundaries of protected expression in publicly funded institutions, potentially influencing the balance between institutional autonomy and constitutional safeguards.