FIRE Op-Ed in USA Today Against Qualified Immunity for Public University Administrators

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….

Comments

[Queen Amalthea]

This is mostly a moral panic by folks who could care less about protecting speech but I'd agree the rationale for qualified immunity (which I generally oppose) applies with less force for university administrators.

[TwelveInchPianist]

So... FIRE is taking the correct position, but they are only taking the correct position because of a moral panic, and not because of the examples they cite of schools suppressing speech and being protected by qualified immunity?

And FIRE could care less about the first amendment?

Now that's a hot take.

[Queen Amalthea]

"FIRE is taking the correct position"
Yes, ultimately here.

"but they are only taking the correct position because of a moral panic"

More like they are taking a correct position about something that is largely a moral panic. That happens all the time.

"not because of the examples they cite of schools suppressing speech and being protected by qualified immunity"

Many moral panics can cite anecdotes to support the panic.

"And FIRE could care less about the first amendment"

It's almost like I wrote 'protecting speech' and not 'first amendment' (which are not the same thing). Hey, actually I did!

Talk about hot takes...

[TwelveInchPianist]

"More like they are taking a correct position about something that is largely a moral panic. That happens all the time."

Sounds like in your view you are doing the same thing.

"Many moral panics can cite anecdotes to support the panic."

You still haven't made a connection between an alleged moral panic and FIRE's correct position.

"It’s almost like I wrote ‘protecting speech’ and not ‘first amendment’ (which are not the same thing). Hey, actually I did!"

Consider that nit picked! Of course, you have provided no evidence to support your claim that FIRE couldn't care less about free speech.

QA, your take is the hottest!

[Queen Amalthea]

"Sounds like in your view you are doing the same thing."

?

"You still haven’t made a connection between an alleged moral panic and FIRE’s correct position."

Of course not, as I said "More like they are taking a correct position about something that is largely a moral panic."

" you have provided no evidence to support your claim that FIRE couldn’t care less about free speech"

As I said below my take is less specifically about FIRE than about others engaged in this moral panic. But FIRE is fine with private institutions restricting speech as long as they are honest about not caring about speech (well, and even here they are inconsistent).

[TwelveInchPianist]

So your comment had nothing to do with this post, just unspecified others who you think are taking a correct position for the wrong reasons?

"But FIRE is fine with private institutions restricting speech as long as they are honest about not caring about speech..."

Evidence?

[Krayt]

Rev says so. In his defense, he provided a service by pointing this out, and this site now takes up cases where private universities violate their own mission statements which blabb about free speech being necessary to the advancement of human knowledge high and noble yo. You know, that crap religious, and now, woke universities want to abridge?

[Queen Amalthea]

This post is about fighting qualified immunity for college administrators that violate student's rights and so was my comment.

"Evidence?"

Are you really not familiar with FIRE's policies re: institution's that restrict speech systemically in ways public school administrators could only dream of but are private and honest about it?

[DaivdBehar]

All immunities should end for several reason.

1) They justify violence as a remedy in formal logic. The contrapositive of a true assertion is always true. Liability is a replacement for endless cycles of violent revenge that makes life unlivable. Liability was a great advance from 5000 years ago, that was a major factor in the growth of civilization. Immunity therefore justifies endless cycles of violent revenge. Formal logic has more certainty than the laws of physics. The courts need to learn critical thinking and to put logic above selfish interests, or face violence;

2) they grow the enterprise, like government. They represent an unauthorized form of industrial policy by the scumbag lawyer profession, the most toxic, in the country;

3) they prevent improvement in the practice;

4) they deprive victims of carelessness procedural due process rights to a fair hearing under the Fifth Amendment;

5) the immune have just dealt immunity to themselves, in a conflict of interest. Immunities have no validity, even if statutory, since lawyers wrote those immunity laws. They are garbage;

6) the immune are all dumbasses.

[Queen Amalthea]

Authoritarian nut job.

[DaivdBehar]

7) Immunity was justified by the sovereign's speaking with the voice of God. This justification is psychotic, delusional, and supernatural. All immunities violate the Establishment Clause. Its psychotic nature informs all adherents of immunity. They are nuts.

[Jimmy the Dane]

F.I.R.E gets accused of many things such as being right wing shills but rarely, if ever, is it for not caring about protected speech. If anything they are probably the only mainstream national advocacy group left that you can count on taking a solid stance on free speech these days (the ACLU having abandoned that role many years ago).

Maybe they pick and choose right wing speech cases more then the left wing cases to appease their donors, but they have always been solid on free speech in general.

[rsteinmetz]

Maybe it's because most University Administrators are Left Wing and mostly go after Right Wing students?

[rsteinmetz]

Maybe it's because more University Administrators are Left Wing and they mostly go after Right Wing Students?

[Queen Amalthea]

Maybe the Right Wing looks for, creates, misrepresents and/or publicizes outrage examples more?

[rsteinmetz]

Possibly, but FIRE has taken what might be considered Left Wing causes like this one.

https://www.thefire.org/one-day-after-fire-files-lawsuit-med-school-approves-students-long-denied-club-application/
Advocating single payer healthcare.

They have also opposed to various laws and policies restricting discussion and teaching Critical Race Theory.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Left-wing academia is far more likely to oppress right wingers.

[BillyG]

Right wingers being defined as anyone to the right of Stalin?

[Queen Amalthea]

" but rarely, if ever, is it for not caring about protected speech"

Well, part of the issue is only caring about 'protected' speech rather than speech in general (again, not the same), while also intimating that you do care about the latter, but only, er, selectively.

Also, my criticism is not so much FIRE itself but the people who in general are in a moral panic about supposedly rampant 1st Amendment violations by academe. These people don't care about protecting speech as a general neutral principle, they were largely the same ones calling for the NFL or Olympic Committee to fire players who engaged in wicked speech, etc.,

[TwelveInchPianist]

"These people don’t care about protecting speech as a general neutral principle, they were largely the same ones calling for the NFL or Olympic Committee to fire players who engaged in wicked speech, etc.,"

I'm not sure this is even inconsistent.

When rating private schools that don't promise free speech, fire provides a waring to that effect.

I doubt people who think the NFL should discipline players for protesting during the national anthem would object to providing a waring that the NFL doesn't promise players free speech during the national anthem, but I doubt such a warning is necessary.

[Queen Amalthea]

Wow, now who is picking the nit?

[BillyG]

Mr Volokh, I think you would enjoy talking with Glenn Greenwald (if you aren't already). They two of you are large proponents of Free Speech.

https://twitter.com/ggreenwald

[Rev. Arthur L. Kirkland]

" only mainstream national advocacy group "

FIRE is not mainstream. It is part of the clingerverse.

[TwelveInchPianist]

A rather facile comment, I'd have to say.

[Queen Amalthea]

As the second bit of the apple here, lol.

[TwelveInchPianist]

Well, I figured I'd deal with the substance of your comment first. Elevate the discussion, as it were.

[Queen Amalthea]

More likely you posted the first and then pulled an 'aww man, I should've said..." as you recalled something you were butthurt over.

[TwelveInchPianist]

Why would I be pull an 'aww man'? Or be butthurt?

Both of my comments were on the money.

Nothing wrong with a second bite at the apple in this context, as long as they're two good bites.

[Queen Amalthea]

I'm glad you acknowledge what was apparent, that you're butthurt.

"Nothing wrong with a second bite at the apple in this context, as long as they’re two good bites."

OK, so are you going to provide those two?

[wreckinball]

Just stick with free speech being absolute. That is what we are now veering away from.

[Queen Amalthea]

It's never been absolute, it can't be absolute. You want it to be prohibited to, say, punish someone who tells the Russians who our spies in their country are? Or someone who gives a direct threat to someone? Or who stands in the street outside your house at 2 am and screams obscenities at your house?

[Life of Brian]

Interestingly enough, all your examples are exceptions incorporated into the criminal code and prosecuted by the justice system, not sui generis exceptions for liberal butthurt created and enforced by academic administrators devoid of statutory authority to do so.

[Queen Amalthea]

Interestingly enough, someone doesn't understand what 'absolute' means.

[Lawperson5000]

I would imagine the stakes for most of these cases are pretty low. What are the individual damages likely to be against a public university administrator for First Amendment violations, like punishing a student for a Facebook post? Removing qualified immunity may increase deterrence more than the only remedy being liability to the institution (and taxpayer), but not much. Also, there is logic for qualified immunity for university administrators similar to police--they should not be punished simply for doing their jobs and having to make judgments within the scope of their jobs (and as we know, QI already is overcome by violation clearly established law, which is likely more "clearly established" under the 1st Amendment than, say the 4th). I, too, think QI has gone to far, but there are some policy reasons that a public university official and police officer would be treated similarly for this purpose.

[David Nieporent]

I would imagine the stakes for most of these cases are pretty low. What are the individual damages likely to be against a public university administrator for First Amendment violations, like punishing a student for a Facebook post? Removing qualified immunity may increase deterrence more than the only remedy being liability to the institution (and taxpayer), but not much.

Individual damages are low, but attorney’s fees are also recoverable, and they’re not.

[Stephen Lathrop]

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.

Ever notice the suspense with which legal experts await court decisions in contested speech cases? Not that the experts aren't sure they are right, of course. Just that opposing experts say they are right in opposite ways.

Is it fair to say here that FIRE proposes to criminalize those who don't guess right about court decisions? Or is the notion just that opposing FIRE's preferred take with regard to a contested speech issue ought to be criminalized?

To look at the problem more generally, and more forgivingly, it seems evident that there is advocacy from some academics to pressure courts to change free speech standards, sometimes in ways which strike bystanders as far-fetched. Some academics want speech standards which are less accommodating of hate speech, and of weaponized speech against specific targets.

That makes me mindful of litigants against enforcement standards for wetlands laws, for instance, who bring controversial cases to court—sometimes with the backing of cause-oriented litigation factories similar to FIRE, like the Pacific Legal Foundation.

Surprising results in suits like that have become a means to alter previously-customary legal interpretations about all sorts of laws. Sometimes I have wondered inwardly whether that kind of legal-pressure conduct ought to be criminalized. Here I am, wondering about it again, with regard to FIRE. Of course I don't worry at all about similarly orchestrated legal campaigns on behalf of civil rights. Those seem to me entirely praiseworthy.

[BillyG]

I congratulate you on a wonderful piece of propaganda. Your misdirection is masterful. If someone didn't do a careful reading, they would probably think you had a decent response.

Is it fair to say here that FIRE proposes to criminalize those who don’t guess right about court decisions? Or is the notion just that opposing FIRE’s preferred take with regard to a contested speech issue ought to be criminalized?

Example, your claim that FIRE is trying to criminalize actions (false) or that these issues are contested (also false). A good misdirection over civil violations. FIRE would prefer administrators to be held responsible for their deliberate violations. Perhaps the Administrators should consult the university lawyer first in the same way HR departments are consulted for employee action?

Some academics want speech standards which are less accommodating of hate speech, and of weaponized speech against specific targets.

And here you add in the nebulous "hate speech" which is missing from the examples cited. Your masterful post attempts to conflate the speech violations with cracking down on "hate speech" instead of addressing the violations actually cited.

That makes me mindful of litigants against enforcement standards for wetlands laws, for instance, who bring controversial cases to court—sometimes with the backing of cause-oriented litigation factories similar to FIRE, like the Pacific Legal Foundation.

And here you do (attempted) guild by association & further misdirection. FIRE is helping the actual victims of the violations but you ignore it and portray it as a 3rd party lawsuit. Wonderful propaganda technique.

Surprising results in suits like that have become a means to alter previously-customary legal interpretations about all sorts of laws. Sometimes I have wondered inwardly whether that kind of legal-pressure conduct ought to be criminalized. Here I am, wondering about it again, with regard to FIRE. Of course I don’t worry at all about similarly orchestrated legal campaigns on behalf of civil rights. Those seem to me entirely praiseworthy.

And here you use repetition for your persuasion along with "thinking past the sale". You add items which aren't even on topic (criminalizing legal-pressure conduct). You imply FIRE is trying to change interpretation rather than rely on the long standing interpretation. And you imply they aren't working for civil rights but are in fact the opposite.

I must congratulate you for a post which takes a Free Speech case and argues supporting Free Speech is a violation of civil rights. BRAVO.

[Ben_]

It makes sense when you understand that leftists don't actually believe in rights. They believe the special people should win. And if that means talking about rights, they'll play the game so the special people win. If denying rights and violating rights help the special people win, then they're very, very happy to deny rights and violate rights and rationalize it to you however.

All concepts -- including reality itself -- are subservient to making sure the special people win.

[Rev. Arthur L. Kirkland]

Disaffected, desperate, demoralized, defeated right-wing losers are among my favorite culture war casualties.

[Ben_]

In Lathrop LaLa Land, no immunity from civil suits "criminalize[s] those who don’t guess right".

How can poor University Presidents ever find the resources to defend themselves in a civil lawsuit (for their deliberate actions to arguably violate others civil rights)???? Oh the humanity!

[TwelveInchPianist]

"Is it fair to say here that FIRE proposes to criminalize those who don’t guess right about court decisions?"

Sigh. No. Fire proposes to expose state actors who don't guess right about court decisions to civil liability under section 1983. And just about every state has statutes the indemnify state employees from 1983 claims.

[QuantumBoxCat]

I think you touch a major point that the op-ed doesn't account for. A police officer doesn't have time to consult with legal staff to provide a legal rationale for a particular course of action. The officer must make the decision at the particular moment. University administrators have ample time to consult with legal staff, who may take time to construct a legal rationale that justifies the universities action in a particular case. This is not to say that the university will prevail in court, but rather that their actions are based on their interpretation of case law as applied to the facts of the situation.

FIRE fails to acknowledge that for every legal advocacy group (like themselves) that takes one position on an issue, there is another ready to argue the opposing view.

[Guardian253]

Finally, an article about extinguishing qualified immunity where government actors have time to reflect on a situation, the resources to consult legal authority, and time to deliberate and make a reasoned decision. These people, and any government actor who has time to deliberate and consult experts should not have qualified immunity. I find it appalling that government actors who have to act quickly, under duress, with incomplete information, without opportunity to deliberate or consult experts are held to a higher standard than those that are not under such constraints. It's illogical and non-sensical. For those who want to get rid of QI, it would be best to start with bureaucrats and administrators in climate controlled buildings, not people who have to make split-seconded decisions in chaotic situations.

[Tall Paul]

There are a lot of academic administrators scratching their heads today. They can't figure out why they would need any kind of immunity because nearly all of them are firmly convinced that the laws that apply to everyone else surely don't apply to them.

[M L]

Wow, reads just like my comment I posted here recently. 🙂