First Amendment Group Tells Appeals Court University Officials Shouldn’t Have Access To Qualified Immunity
from the ah-the-famous-'fast-moving'-deliberations-of-government-officials dept
Qualified immunity has been heavily criticized for what it allows law enforcement officers to get away with. The Supreme Court-created doctrine excuses officers from civil rights lawsuits even when it’s been shown rights were violated… so long as the rights violation hasn’t been previously ruled a rights violation by other courts with jurisdiction over the case. That means cops are free to violate rights repeatedly until a court rules otherwise, clearly establishing the violation.
Qualified immunity wasn’t meant to be a bad thing. It was meant to give government officials a bit of a buffer zone for judgment calls during fast-moving situations — the sort of thing that occurs regularly during police work. But the doctrine covers all government officials, even those who have plenty of time to consider the constitutional implications of their actions before moving forward.
Last August, two members of the Foundation for Individual Rights in Education (FIRE) wrote an op-ed for USA Today, arguing that qualified immunity should not be handed out to university administrators who violate the rights of their staff or students. They’re nothing like cops, who have to make quick decisions when facing potentially deadly threats. They’re people ensconced in offices with access to ample legal counsel and the time to research the issue at hand.
Thanks to this lawsuit escape hatch, administrators feel all too comfortable violating rights on the regular:
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.
Now, FIRE is taking this op-ed to court. It has filed an amicus brief [PDF] challenging the awarding of qualified immunity to university officials who fired an assistant professor for refusing to sign a statement admitting to criminal acts he denies he has committed.
In October 2021, a federal court in the Eastern District of Kentucky granted University of Kentucky administrators qualified immunity, despite holding that they violated the First Amendment in non-renewing Dr. Ehab Shehata’s contract based on his refusal to sign a sworn statement that he didn’t believe. Consequently, Shehata could not vindicate his constitutional rights.
Compelled speech is a First Amendment violation. As a publicly funded school, the university had an obligation to respect Dr. Shehata’s rights. It chose not to. And the district court, despite finding Shehata’s rights had been violated, chose not to hold anyone accountable for the violation.
Although the district court held that Shehata’s refusal to speak was protected by the First Amendment, it dismissed Shehata’s retaliation claim, granting qualified immunity to the UK administrators who fired him. According to the district court, the law was not clearly established because in no previous case had the Sixth Circuit ever addressed “whether an employee could be forced to speak by his public employer.”
Though the court may have been correct no single case provided precedent that covered this particular violation, FIRE argues there’s a wealth of precedent that should have made it clear to university officials compelling an employee’s speech would be a First Amendment violation.
This Court has made clear that a public employer cannot fire an employee in retaliation for refusing to speak. Over thirty years ago, it held the First Amendment rights of public employees include that to refrain from speaking on a matter of public concern. Langford v. Lane, 921 F.2d 677, 680 (6th Cir. 1991). In so holding, the Court relied on longstanding Supreme Court precedent. Id. (First Amendment protection “extends equally to ‘the right to speak freely and the right to refrain from speaking at all.’” (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977))). In turn, Wooley relied on the Court’s seminal decision in Board of Education v. Barnette to recognize that “[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley, 430 U.S. at 714 (quoting 319 U.S. 624, 637 (1943) (holding compulsory flag salute and recitation of Pledge of Allegiance violated First and Fourteenth Amendments)).
Similarly, it is clearly established in this Circuit that the First Amendment prohibits retaliation for protected conduct. Indeed, almost thirty years ago, this Circuit recognized “the contours of the public employee’s right to be free from adverse employment action on the basis of protected speech” were clearly established. Williams v. Kentucky, 24 F.3d 1526, 1537 (6th Cir. 1994); see also Kiessel v. Oltersdorf, 459 Fed. Appx. 510, 515 (6th Cir. 2012) (“In the Sixth Circuit, a public employee’s First Amendment right against retaliation for protected speech has been clearly established for nearly two decades.”).
Even if that’s not enough to show cases on point have “clearly established” the law in this Circuit, FIRE points out the Supreme Court itself (which has made the qualified immunity doctrine appreciably worse over the past few decades) has chastised courts for ignoring obvious violations by searching for cases directly on point.
On top of that, there’s the question as to why qualified immunity — something meant to grant leeway during quickly evolving situations — should even apply to administrators dealing with situations that not only aren’t quickly evolving, but entirely of their own making.
The job of the reasonable university administrator differs greatly from that of the reasonable police officer, and the Supreme Court has articulated why: Unlike the day-to-day discretionary acts of a university administrator, police officers’ responsibilities require deciding whether to arrest or use force at a moment’s notice, often in life-or-death situations.
University administrators will rarely (if ever) be confronted with such a situation. The history of the qualified immunity doctrine under Section 1983 dictates that courts should not grant so broad a protection as would allow officials to ignore the constitutional boundary of their authority in circumstances that allow that boundary to be reasonably ascertained. The administrator has neither the powers of arrest nor use of force, so need not evaluate at a moment’s notice whether discretion
counsels the use of either. The typical situation subject to a university administrator’s exercise of discretion, rather, permits both investigation of facts and determinations regarding the constitutionality of any proposed action
Given these facts, it makes no sense to award qualified immunity to the university administrators even if there’s no “clearly established” case directly on point. The administrators had the ability to investigate case law surrounding its plan to compel speech as well as seek qualified legal guidance on the Constitutional implications of this demand. That they apparently chose not to shouldn’t prevent the professor from seeking justice for this rights violation.
Qualified immunity already does more harm than good when it comes to fast-moving, potentially violent situations. It should not be allowed to encompass situations where things are neither quickly developing nor potentially dangerous. By extending qualified immunity to school administrators, the court told Dr. Shehata it recognized his rights, but was unwilling to remedy the violation. And, as FIRE’s brief points out, a right without a remedy really isn’t much of a right.