The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It's here, by the Foundation for Individual Rights in Education's Greg Lukianoff & Adam Goldstein. An excerpt:
Have you ever wondered why, despite strong First Amendment protections, students and professors still get punished for exercising their free speech on American campuses? The answer is the doctrine of qualified immunity, and it is time for courts to restrain that doctrine.
Qualified immunity was invented to protect public employees from being unfairly sued for doing their job in good faith. It was intended to be applied in situations where a government employee such as a police officer has to make a split-second decision and couldn't be expected to know they were violating the law when they acted….
But campus administrators are not generally in situations like our hypothetical officer. Most are, in fact, in positions not unlike a judge, with ample time, staff expertise and opportunity to reflect on the constitutional implications of their decisions. And yet, qualified immunity is consistently invoked to protect those decisions, no matter how transparently unconstitutional.
Administrators rely on qualified immunity to avoid consequences when they engage in intentional, considered and collaborative efforts to violate civil liberties, such as when they punished a University of New Mexico medical school student for a pro-life Facebook post; investigated two University of South Carolina student groups for holding a pre-approved demonstration specifically about freedom of speech; and denied an Arkansas State University-Jonesboro student the right to table for her student group because administrators censored all speech outside a "free speech zone" covering 1% of the campus….