College officials often act in ways that trample on the First Amendment rights of students (sometimes faculty too), and the courts have often agreed when the aggrieved parties sue. The problem is that any money that’s paid out comes from the school (meaning, the taxpayers), not the officials themselves. They get a free pass due to a vague and legally shaky doctrine called “qualified immunity.” (Qualified immunity also shields bad conduct by other public officials, especially police.)
In today’s Martin Center article, I write about this issue.
Qualified immunity is a judicial construct that has scant historical basis. In fact, in earlier times, the law provided no immunity for rights-violating conduct by officials. Unfortunately, in a 1982 case, the Supreme Court crafted it to protect officials who had to make fast decisions. Whether that’s a good idea or not, it makes no sense at all to apply it to college administrators who don’t have to make spur-of-the-moment decisions and could easily consult with counsel before acting.
The lower courts have mindlessly expanded qualified immunity, but at least there is now some resistance. An Eighth Circuit decision recently remanded a case where the district court had granted qualified immunity, telling it that the officials should have known that their conduct (blatant viewpoint discrimination against a Christian organization) was a First Amendment violation.
In another case, the Supreme Court could have taken the appeal and weighed in against the absurd application of qualified immunity, but, disappointingly, declined to grant cert.
Most colleges and universities are obsessed with “diversity training” these days, but apparently have no interest in training their officials in how to avoid violating the First Amendment. They should do less of the former and some of the latter.
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