Why Are We Letting School Administrators Use Qualified Immunity To Escape Accountablity For Violating Free Speech Rights?

from the when-time-isn't-a-factor,-I-guess-just-keep-fucking-up dept

Administrators of publicly-funded schools have a strange habit of misunderstanding the limits of their power and failing to respect the freedoms extended to their students by the Constitution. Naturally, this has resulted in lawsuits. Lots of them. And lots of losses for administrators, including one recent notable loss delivered by none other than the US Supreme Court.

But administrators aren't actually feeling these losses, for the most part. As government employees, they have access to qualified immunity, which gives them a chance to avoid being sued as long as they've violated rights in a non-clearly-established way. (Not only that, but if this shield somehow fails, it's taxpayers who foot the bill for courtroom losses.)

An op-ed for USA Today, written by FIRE (Foundation for Individual Rights in Education) members Greg Lukaniaoff and Adam Goldstein, asks why we're allowing administrators to avail themselves of this protection, given they're not asked to make speedy decisions under tremendous pressure.

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. In a sense, qualified immunity is the name we’ve chosen for the grace we grant public officials for unintentionally wrong decisions that otherwise would merit discipline, termination or damages paid to victims of violations of constitutional rights.

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.

While it makes (limited) sense to give cops a little leeway when dealing with possibly deadly situations, it makes very little sense to pretend school administrators are in the same position. The circumstances in which they find themselves on the wrong side of the Constitution never deal with life-and-death situations. Nor are they under any pressure to make hasty decisions on matters involving students' rights. They have ample opportunity to examine the issue before them and consider the implications (including the Constitutional ones) of their proposals and decisions.

And yet, they ask for qualified immunity, aligning themselves with government employees who don't enjoy the same luxuries they do. The pleas for immunity work often enough that the threat of lawsuits is rarely a deterrent. The fact that the public foots the bill to defend public employees from accusations of rights violations makes deterrence an even more abstract idea, leading administrators to treat violations like victimless crimes. As long as they aren't personally harmed, there's been no foul.

Without effective deterrents in place, terrible, bad, dumb stuff happens.

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.

The op-ed doesn't argue qualified immunity is a good thing for cops -- people who have plenty of training and experience, but apparently very little know-how when it comes to respecting rights. They shouldn't have it either. But, at least in some cases, mistakes are made during fast-moving situations that have the potential to be deadly. Administrators have all the time in the world to research applicable case law before taking action that affects students' speech. But they so very rarely perform due diligence and, with qualified immunity in place, can be rewarded for their willful ignorance.

Strip it all away. But if we have to start somewhere, why not take qualified immunity away from people who have the time and resources to carefully consider their actions, but appear more willing to do whatever they want and roll the dice on an early escape from litigation?

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Filed Under: 1st amendment, civil liberties, civil rights, free speech, qualified immunity, schools


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  • identicon
    Anonymous Coward, 27 Aug 2021 @ 12:30pm

    Why Are We Letting School Administrators Use Qualified Immunity To Escape Accountablity For Violating Free Speech Rights?

    Because other forms of rape typically have a stronger backlash.

    reply to this | link to this | view in chronology ]

  • icon
    Darkness Of Course (profile), 27 Aug 2021 @ 1:14pm

    Fast thinkers them admins

    My experience as a kid (long time gone) was the average principle and friends thought on their feet. I never saw any of them reach for a book (no web), or call a lawyer that wasn't related to them about violating rights of their students.

    They get pissy, upset about what was said, not whether they had the right to say it. The biggest difference from my experience, my experience with my children, and the modern one is nobody in the front office of any school has the excuse, they didn't know.

    They knew, they just rated their own reaction as more important than The Constitution. Same old, same old.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 27 Aug 2021 @ 1:54pm

    "Why Are We Letting School Administrators Use Qualified Immunity To Escape Accountablity For Violating Free Speech Rights?"

    Because we have different rules for different people.

    If you and I trade the market on inside information, we go to jail
    For those in Congress & their friends, its a job perk.

    If you or I shoot someone because they pissed us off, we got to jail.
    QI means never having to be responsible for some people.

    We can never expect our betters to be bound by the rules meant for the little people. All men are created equal *

      • unless they have power then they can do whatever they want.

    We need to teach the children early that their 'rights' only extend as far as an authority figure will allow.
    We make a nice show of these rights being the bedrock of the nation, but in practice they always let our betters get away with ignoring them if their target is a lesser person.

    Imagine if we put civics back in schools & taught children that they have rights that the system will recognize & hold everyone accountable if they violate them instead of looking for a loophole to make trampling those rights okay. Our betters might not manage to get away with so much if we knew the rules applied to everyone & they faced the same punishments for violating them.

    Indoctrinate the children young so they never question authority and strive to someday gain enough power that they get to be the authority.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 28 Aug 2021 @ 1:17pm

    Collaborative? More like conspirators!

    “Administrators rely on qualified immunity to avoid consequences when they engage in intentional, considered and collaborative efforts to violate civil liberties,”

    This is why I have been saying for years, don’t (just) sue them, ARREST them. A federal citizens arrest for a felony that citizen directly witnessed is lawful in 49 out of 50 states and on all federal lands (United States v. Di Re (1948)). Conspiracy by public officials to violate civil, statutory or constitutional rights is a federal felony (18 USC 241). You cannot have collaboration on a crime without it being a conspiracy crime.

    Any citizen can make a citizen’s arrest, and resisting or fleeing from one is just as illegal, subject to all the same formal and informal consequences, as doing those things when arrested by police. In some states - Texas for example - you don’t even need to be a US citizen to make lawful arrests. Kids, as the US supreme court has ruled numerous times, don’t stop being citizens just because they went to school, and the victim of a felony is almost always on the scene before police are.

    An arrest doesn’t require physical force at all, they can be made using words alone and be 100% legally binding.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Aug 2021 @ 11:17am

    I remember, when I went to elementary school, the provincial police routinely sent a constable to speak to each class once explaining why it is wrong to steal and claiming that theft under some arbitrary amount (then $200, now $5000) was a crime which carried a two-year prison sentence.

    I wish I had asked him if he were willing to apply the same standard to adults or persons in a position of authority who steal from kids.

    ie: kid steals a $1 pack of chewing gum from MegaMart, cop charges them, supposedly that' s two years max in Club Fed

    so why not: teacher steals the same pack of gum from a student because chewing gum in class is bad, shouldn't that instructor also get two years max in Club Fed?

    Equality before the law and all of that, you know? A right, not a privilege.

    Unfortunately little pre-adolescent me didn't think to ask that officer that question in that classroom that day, and will always regret it.

    There are plenty of crimes which target kids or students, such as bicycle theft where that bike is the only vehicle that person owns, which are not taken seriously at all. They need to be subject to the same standard as anything else. No qualified immunity.

    reply to this | link to this | view in chronology ]


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