Qualified Immunity

It's Time to End Qualified Immunity for College Administrators, Too

The doctrine lets courts allow public universities to get away with eroding their students’ speech rights.

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In the wake of the brutal killing of George Floyd by Minneapolis police officer Derek Chauvin, there have been calls for many types of reform: reducing or eliminating funding for police departments; prohibiting certain practices like chokeholds and no-knock warrants and raids; implicit bias training for police. One measure that has finally garnered attention beyond the libertarian legal community is reforming or eliminating the doctrine of qualified immunity. Qualified immunity is a judicially created doctrine that allows state officials to escape personal liability for violating citizens' constitutional rights unless a court finds those rights are "clearly established"—which they almost never do. 

Individuals whose constitutional rights were violated by state actors can bring a federal lawsuit pursuant to 42 U.S.C. 1983, a civil rights statute that allows people to sue officials acting "under color of" state law for violations of their constitutional rights. The Supreme Court's intent in creating qualified immunity was to ensure that public officials could perform their duties without the constant fear of liability for "reasonable but mistaken judgments about open legal questions." In practice, however, the doctrine has come to insulate public officials from liability unless their conduct has explicitly been declared unconstitutional in a case with a nearly identical fact pattern—an impossible standard to meet, and one that has become a significant barrier to justice. 

As an attorney defending students and faculty whose free speech and due process rights have been violated by public university administrators, I can attest to the fact that qualified immunity is a huge barrier that limits accountability even in the case of seemingly obvious constitutional violations. Just a few days ago, for example, a federal court in Connecticut dismissed, on qualified immunity grounds, the First Amendment claim of Noriana Radwan, a former University of Connecticut soccer player who lost her scholarship after she was captured giving the finger on national television. In one sentence, the court captured everything that is wrong with qualified immunity, and why it is an albatross around the neck of every lawyer fighting against the abuse of power by state officials:

"While Ms. Radwan does have a viable First Amendment claim, because of qualified immunity, the Defendants' motion for summary judgment on this claim will be granted."

In Radwan v. University of Connecticut, the district court held that it is conceivably possible that the administrators' conduct could have been justified by Bethel Sch. Dist. No. 403 v. Fraser, a Supreme Court decision allowing K-12 schools to regulate "vulgar or offensive" speech among schoolchildren. The court acknowledged that "university students, largely over the age of eighteen, are no longer children," and that the Supreme Court has explicitly stated that there is no reason "First Amendment protections should apply with less force on college campuses than in the community at large." The court even acknowledged that the U.S. Court of Appeals for the 2nd Circuit, of which Connecticut is a part, has "expressed skepticism that universities and colleges have as much latitude to regulate student speech as K-12 schools do." But because the 2nd Circuit has never explicitly held that Fraser does not apply to universities, the court dismissed Radwan's "viable First Amendment claim." 

Ladies and gentlemen, qualified immunity.

The Supreme Court currently has the opportunity to review a number of different qualified immunity cases, allowing them to revisit the doctrine. Some of the cases involve alleged excessive force by police. Another involves alleged First Amendment abuses by university administrators. In that case, Hunt v. University of New Mexico, the school disciplined a medical student for an intemperate Facebook post about abortion—something that was clearly constitutionally protected speech. Instead of looking to the decades of case law establishing that university students have robust First Amendment rights and that First Amendment rights apply to online speech, the U.S. Court of Appeals for the 10th Circuit instead looked only for cases specific to the question of whether "sanctioning a student's off-campus, online speech for the purpose of instilling professional norms is unconstitutional." Finding (unsurprisingly) no cases on point, the court held that the university administrators were entitled to qualified immunity.

With the eyes of the nation now on police abuses, it is time to emphasize how qualified immunity has become a shield for government malfeasance of all types, and to reform this toxic doctrine. 

NEXT: Today in Supreme Court History: June 10, 1916

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  1. “Qualified immunity is a judicially created doctrine that allows state officials to escape personal liability for violating citizens’ constitutional rights unless a court finds those rights are “clearly established”—which they almost never do.”

    Again, the point isn’t to protect officials from lawsuits for violating people’s constitutional rights. The point is to protect officials from a slew of frivolous lawsuits every time an administration makes a decision that angers any identity group, any environmental group, any animal rights group, etc.

    If you think free speech would be better protected because administrators were afraid of being personally sued by social justice warriors under the guise of civil rights and Title IX, then you’re out of your mind. That does not compute.

    If school administrators could be sued personally for every decision social justice warriors on campus don’t like, they will be sued personally every time they make a decision that social justice warriors don’t like. That is not conducive to free speech on campus. That is conducive to an environment where school administrators defer to the desires of social justice warriors on speech codes than they do now.

    P.S. Anyone who supports Section 230 on free speech grounds (as I do) should support qualified immunity in these circumstances for the same reasons.

    1. Ken, what about changing our legal system so litigants are responsible for reverse damages if their suit fails?

      1. I don’t see making it harder or easier for poor people to bring suits as a good solution. The idea isn’t to minimize the number of frivolous lawsuits–by itself. The idea is to keep it so that officials can and will make legitimate decisions that anger environmental groups, animal rights groups, and social justice warriors–without risking personal bankruptcy.

        I used the word “risk” there, but I probably shouldn’t. If you remove qualified immunity from officials, the question isn’t whether animal rights groups will sue the individuals who oversee the biotechnology program if they don’t stop animal testing. There is no risk of that at all–because the chances of them getting sued by a slew of animal rights activists is 100%. As sure as the sun rises tomorrow, they will be sued.

        Peta sued the California Dairy Board for false advertising for running an advertising campaign that said, “Great cheese comes from happy cows, and happy cows come from California”. The suit was based on Peta’s contention that the cows of California aren’t really happy. Why wouldn’t they (or their members) sue individual school administrators personally to stop animal testing? That’s the kind of thing they already do for a living to institutions. The only reason they don’t do it to individual officials now is because they can’t.

        With the social justice warriors, it will be even worse. If you think assigning Mark Twain is difficult now, wait ’til you see the syllabus once professor can be sued by social justice warriors personally. The idea that free speech would improve under those conditions is farcical.

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        2. I see no reason why a select few classes of people should be free from frivolous lawsuits. If government officials were frivolously sued often enough for it to be painful enough to restrict their speech, perhaps they would help to fix the broken legal system to which everyone else is subject. Having had to endure millions of dollars in settlements on the most frivolous of suits in my company because it costs more to win than to settle, I am much more concerned about fixing our legal system than in protecting speech. We will not make needed reforms to the legal system as long actors who are best positioned to make such reforms (government employees) are free from such nonsense.

        3. Loser pays will go a long way to solving this problem. Truly frivolous lawsuits would virtually disappear. Why would anyone sue frivolously if they know they have to pay your defense costs?

      2. That’s perfect!

        So, let’s say that you sue some big corporation who harms you…. maybe one of their trucks runs over your kid. So you sue.

        And they send in a big legal team… 7 lawyers, experts, investigators…. millions worth of defense team. Enough to overwhelm your little general practice lawyer and you lose your case.

        So now you are on the hook for millions in damages.

        1. To me, that would be just more confirmation that our legal system is not just broken, but fundamentally wrong. We have an adversarial system, with highly distorting protocol and primacy of rhetoric over objective information. We have data (you know, science) that tells us that people are ridiculously bad as eye witnesses, and as unbiased decisions-makers, so the entire concepts of testimony and juries is equally ridiculous.

          Maybe robots would do better.

          1. Just a matter of time.

        2. Cyto – your example assumes that the case will be decided wrongly. If that’s our starting assumption then arguing fine details about access and paying for it is kind of pointless.

          But anyway, one could come up with some modifications to the loser-pays system that might address your concern.

          (1) Rather than an automatic loser pays rule, it could be loser pays if the jury adds a separate decision that they filed in bad faith.
          +
          (2) Rather than the amount being the other side’s legal costs, the amount could be a deterrent penalty set German style, e.g. one months income/revenue. Yeah, the dad in your example might be out $3K in the unlikely case the jury thought he was making it up. But imagine if Amazon lost and was on the hook for one month of the company’s revenue.

        3. And yet it works in every other developed country. We’re the only one that doesn’t use loser pays.

        4. Back in the better days; the word criminal use to involve ‘intent’. Can farmers sue the weatherman for crop damages because they didn’t predict that hail storm???

          Your very own definition of ‘justice’ is more flawed than the actual justice department.

    2. Anyone who supports Section 230 on free speech grounds (as I do) should support qualified immunity in these circumstances for the same reasons.

      Unless you want to see the government entirely out of the schooling business and think that financial and scholarly ruin is a good option. Perhaps if teachers didn’t just get the benefits of government and got more of its bullshit they would be less quick to advocate for government intrusion in the rest of our lives.

      For the record, I am not entirely sold on that type of thinking. Burning everything to the ground so to speak does have a way of producing outcomes that none of us want.

      1. Regardless, the idea that free speech would improve on campus if only social justice warriors could sue school officials personally is absurd.

        1. But there would be counter suits by conservatives as well. Perhaps it would lead to a more traditional view of what rights actual are once courts actually have to make rulings on Constitutional grounds.

          1. It would mean that government officials would defer on policy to the interest groups that were most likely to bankrupt them personally rather than go by the law or by reason. They would pervert both the law and reason in order to avoid being bankrupted by a slew of frivolous lawsuits, and what are you going to do about that–make better laws or reason with them?

        2. On it’s face, sure. However, I do wonder if something could be done to curb the radical leftist rhetoric that’s spreading from campuses to the rest of society by making them exposed to the real world consequences the same way they want the rest of us to be. If they want the rest of the world to walk on eggshells all the time because of their ideology, they should too. As long as their ideology is a weapon with no friendly fire, it’s going to keep being used.

          1. Meant to reply to to Ken’s comment “the idea that free speech would improve on campus if only social justice warriors could sue school officials personally is absurd.”

            1. Go after school financing then.

              The reason so many students major in identity studies and things like Anthropology (and the school has the budget to employ the staff to teach them) isn’t because Moms and Dads are making big sacrifices so those kids will have a bright future as real estate agents.

              Plenty of that is just there because the government is financing it through student loans and grants. Cut off the source of the moral hazard, and much of it will disappear.

              Short of that, I’m not convinced that their thinking really has infected the country as much as people imagine. I’m know it’s infected broadcast journalism, but they’re not representative of the rest of the country either. Meanwhile, Generation Y and younger are moving to the suburbs once they have children–just like their white flight parents and grandparents did . . .

              Here’s another data point: Elizabeth Warren came in fourth in her home state of Massachusetts, mostly because she took a social justice position against Bernie Sanders, Bloomberg, and others. If the social justice warriors can’t even win a Democratic plurality in Massachusetts, how pervasive are they really? Yeah, they’re running the news outlets, but that just makes them seem bigger than they are–even though, have you seen the ratings for their shows?

              Rachel Maddow is considered a formidable force in progressive news coverage. She averages about 2.5 million viewers.

              https://en.wikipedia.org/wiki/The_Rachel_Maddow_Show#2016-present

              2.5 million / 130 million households equals about 2% of the country.

              Color me skeptical about the influence of progressives and social justice warriors in this country. Ask me why so many people were prepared to riot recently, and I think looking at 40 million people losing their jobs, with low level service jobs being prevalent among them, is probably a better explanation than the prevalence of the influence of social justice warriors.

              1. I definitely understand your apprehension, but “funding” is just a collectivization that they can all hide behind. The administrators aren’t scared of personal liability, they’re just scared of the shrews that are stocking and policing the campuses forcing everyone to nervously nod along to their crazy edicts. Just like Title IX reform started picking up steam the last few years because more and more faculty were being exposed to their own insane kangaroo courts (see Laura Kipnis case) the only way they’re going to see that enforcement of their ideas are more than an abstract to punish clingers, is to hold them to their own rules.

                I agree with you that much of what’s being called the SJW influence is overblown and severely over represented, but considering it was basically a new religion a decade ago and is now something where we all can speak their language and they’re forcing old fashioned liberals out of just about every influential “legitimate” institution (media, government and corporate HR), I would say that the trajectory is cause for concern.

                Progressivism (not in the sense that lefties use it now, but it’s original meaning) is largely designed to entrench unelected bureaucracy loyal to leftist causes lessen the chances that losing elections steers the ship away from their goals. If they are able to constantly expand the bureaucratic state and create a clergy of true believers that get positions for life and that make rules we all have to follow without depending on a slow moving legislative body, they will win. You can say cut funding all you want, but the system is designed to not allow that.

                You’re also right the unemployment being a real, unspoken root cause of all of the unrest. My concern is that it will create ever more popular demand for government solutions that further bolster and expanded the bureaucratic body that can never be reduced or reigned in, all of which is populated by these people that are the true believers of this stuff. In short, they may not actually need the numbers.

                1. “It was basically a new religion a decade ago”

                  I would say this round of the culture war on campus really started in the 1990s.

                  No doubt, there are flare ups, and this is probably the tail end of a big one.

                  Sexual harassment wasn’t a thing before the Clarence Thomas hearings, and that was just the tip of the iceberg.

                  The term was largely unknown (outside academic and legal circles) until the early 1990s when Anita Hill witnessed and testified against Supreme Court of the United States nominee Clarence Thomas.[19] Since Hill testified in 1991, the number of sexual harassment cases reported in the United States and Canada increased 58 percent and have climbed steadily.[19]

                  https://en.wikipedia.org/wiki/Sexual_harassment#Key_sexual_harassment_cases

                  What do you think is bigger, Gamergate or the wholesale introduction of sexual harassment, when no one had ever heard of it before?

                  African-American Studies, Latino Studies, Women’s Studies, these kinds of programs sprang into existence in certain colleges back in the 1960s, but it was in the 1990s, as I recall, when they became mainstream departments pretty much everywhere in the country. I remember them introducing some of these programs at UCLA back in the 1990s.

                  1. “In 1993, students and faculty used civil disobedience to advocate for a Chicano Studies department. Six students and faculty members undertook a hunger strike, with hundreds rallying in support. In a compromise agreement UCLA created a center for interdisciplinary instruction.”

                    https://newsletter.alumni.ucla.edu/connect/2017/sep/hispanic-history/default.htm

                    I remember this.

                    This was when the social justice warriors really started asserting themselves on campus. They didn’t call themselves that back then, but then they don’t really call themselves that now.

                    1. I know the roots really go back to the 90’s and the 80’s. Andrea Dworkin had her heyday back then when the really loonie version of feminism took off. At these points, it’s adherents where having to argue it constantly in the face on a population that mostly laughed at their assertions (rightly so). It really has only been about ten years since it became a religion. Things that were laughed out of the room previously were not only take seriously, they became knowledge and to refute them would be heresy.

                      Again, my point that I’d like to hear you address is about why we should expose university faculty to the frivolous lawsuits in my previous lengthy post. You say no, I say letting them face the consequences of what they’ve wrought may be the only way to stop the spread of a disease that is taking over popular culture in spite of it’s apparent near universal unpopularity.

        3. So what? Free speech isn’t the only issue at play. Student’s rights are being violated. I could turn your words around and say “The idea that securing students’ rights would improve on campus if only we freed administrators from liability for trampling on rights is absurd.” That’s a true statement also. But it proves nothing.

      2. “Unless you want to see the government entirely out of the schooling business…”

        Okay.

        1. Agreed, that sounds like a great idea.

          1. 3rd that idea…
            The very root of the problem is “public universities” = “Commie Universities”.

    3. P.S. Anyone who supports Section 230 on free speech grounds (as I do) should support qualified immunity in these circumstances for the same reasons.

      If section 230 were judicially created, it wouldn’t be section 230.

      1. I glossed over that because my posts are generally long enough without addressing every aspect of every argument . . .

        I don’t see the idea that something is “judicially created” as necessarily a bad thing by itself. Isn’t freedom of association judicially created (in law)?

        https://en.wikipedia.org/wiki/Freedom_of_association#United_States_Constitution

        1. P.S. Being a law doesn’t necessarily make it better either. We have all sorts of awful laws.

        2. I don’t see the idea that something is “judicially created” as necessarily a bad thing by itself. Isn’t freedom of association judicially created (in law)?

          Right. I’m dead certain the country, law, Constitution, and even general sensibility would be better served by two (or more) competing judicial doctrines along the lines of Compuserve Doctrine with the Prodigy Exception (or vice versa) rather than Congress’s unconstitutional and idiotically ham-fisted attempt to stitch the baby back together.

          What was and could be decided on a case-by-case basis now gets quietly tamped down until it becomes a problem that Congress must intervene in on behalf of an electorate/customer base they silenced a priori.

    4. How is “a decision that social justice warriors don’t like” a violation of constitutional rights? Qualified Immunity only applies under section 1983, which allows personal liability for government actors who violate constitutional rights under cover of law.

      1. “How is “a decision that social justice warriors don’t like” a violation of constitutional rights?”

        1 ) Are you unfamiliar with Title IX? Are you unfamiliar with the way Title IX has been used?

        2) We’re talking about protecting people from frivolous lawsuits. Section 230 does the same thing.

        You can’t and shouldn’t be able to win a defamation case without showing malice by a preponderance of the evidence. Since the website owner wasn’t the one who wrote the defamation in question, it should impossible for the plaintiff to show that the plaintiff wrote the comment with malice. Section 230 doesn’t change anything about any of that. It just protect websites from being driven off the web by the expense of frivolous lawsuits. Being sued is an expensive and time consuming thing, and just because social justice warriors shouldn’t be able to win lawsuits against school officials, doesn’t mean they won’t file them.

        1. “Are you unfamiliar with Title IX? Are you unfamiliar with the way Title IX has been used?”

          Title IX is a tack-on to the Civil Right Act of 1964.

          https://en.wikipedia.org/wiki/Title_IX

          Far as I can tell, any administrative decision that impacts people on the basis of race, color, creed, national origin, or sex disproportionately has a legitimate case for a hearing, and I believe that the only reason social justice warriors aren’t suing administrators personally now isn’t because of their high-minded sense of fairness. The only reason social justice warriors aren’t filing these suits against administrators personally is because they can’t.

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  2. Cool. No more immunity for everybody!

    A cop who breaks the law–and some heads–gets fired and jailed.

    A teacher who breaks the law, and maybe who just fails to deliver, gets fired and sued.

    A parent who fails to produce a child with minimal capabilities is financially and criminally liable.

    A person who fucks up gets to enjoy the consequences, without the fiction of social oppression (and institutionalized social rescue).

    1. They keep saying that they want equality under the law for everyone. Let’s give it to them and see if they’re still gun ho about it in ten years. Like most of these leftist causes, the rhetoric for equality has a massive asterisk next to it.

      1. Only the most spoiled have extra time to run around screaming about being oppressed and any more spoiling just encourages more screaming. As if the latest “stolen money” stimulus hand-outs hasn’t reinforced that stance.

  3. ALL immunity should disappear. Qualified or absolute, regardless of job. If a judge authorizes an overbroad warrant, that’s on him. If the warrant form is full of lies, the judge should be clear because he has to assume the stated facts are valid, and the criminal is the cop who lied on the warrant form.

    Or do it this way: charge someone, anyone: the cop who executed the warrant, say. He gets out of it if he can show the warrant should not have been approved. The judge gets out of it if he can show the warrant form was full of lies. The warrant form author gets out of it if he can show his informants lied.

    I frankly don’t care if the shit rolling downhill sticks to the wrong person. If cops executing bad warrants go to jail, they will be a lot more cautious about what the accept. If judges go to jail, they will question warrant forms and keep close track of which cops can be trusted. If informants lie, they will be trusted a whole lot less.

  4. Now do section 230, qualified immunity for the internet.

  5. I read the cases at fire.org. I believe that FIRE does good work. I am heartened whenever an administrator has to pay damages in an obvious abuse of 1A rights. I am discouraged whenever an obvious abuse is rejected because of qualified immunity. I hope that QI will go away. If not then can we at least put in a few common sense parameters about its use.

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  7. Qualified Immunity = Catch 22
    You can’t sue unless there is a prior identical case.
    A prior identical case cannot be made because it is forbidden.
    Judges who support this rule should feel mortified.
    Please feel free to take the above equality and spread it around.

  8. Better not hope those SCOTUS cases end up deadlocked with Roberts casting the final vote.

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  10. Just a few days ago, for example, a federal court in Connecticut dismissed, on qualified immunity grounds, the First Amendment claim of Noriana Radwan, a former University of Connecticut soccer player who lost her scholarship after she was captured giving the finger on national television

    This is the hill you want to die on? Seriously?

  11. Before commie education. Education use to mean real world practical skill building and competency. Now it’s just gangster affiliation certificates. The ‘Associates Gang’, The ‘Bachelors Gang’, The ‘Masters Gang’ and the almighty jump through pointless hoops ‘Doctors Gang’…

    Ask any professional; commie education isn’t good for practically anything except to filter determination level.

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