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

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?