by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef’s latest Martin Center column argues that college officials should face consequences for violating people’s rights.
Here is a recurring situation on American college and university campuses—an official acts in a way that violates the constitutional rights of students or faculty members, usually by trampling on the First Amendment.
The aggrieved party then sues, naming the institution and the officials who approved the actions as defendants. Those lawsuits often succeed, with the court declaring that the conduct in question was indeed illegal and requiring that the school pay damages and attorney’s fees to the plaintiff.
All right, but what about the individual defendants?
They are almost never held personally liable for their actions. That is because of a legal doctrine known as qualified immunity, which the Supreme Court declared in a 1982 case, Harlow v. Fitzgerald. Qualified immunity says that public officials are presumptively immune from personal liability when they act in ways that violate the rights of others, unless the law was so clear that they must have known that what they were doing was illegal.
The Court’s reason was that some officials (particularly police) often have to make quick decisions in situations where the public interest would not be well-served if they had to worry about personal liability. As the Fourth Circuit put it in a 1992 case (Maciarello v. Sumner), qualified immunity protects public officials who made “bad guesses in gray areas.”
Over the years, qualified immunity has expanded so that it today covers higher education administrators when they violate the constitutional rights of students or faculty members. Why should it, though? They don’t have to make spur-of-the-moment decisions when they decide how to treat students or faculty over things they’ve said or done that they regard as inappropriate. …
… A best-case scenario for Hoggard would be that the Court hears the case and rules in a way that defangs the qualified immunity doctrine so far as it has been applied to college officials.