First Amendment group says academic officials on Court of Appeals should not have access to qualified immunity

from ah-the-famous-rapid-deliberations-of-government-officials department

Qualified immunity has been heavily criticized for allowing law enforcement to get away with it. The doctrine created by the Supreme Court exempts officers from civil rights suits even when the rights have been shown to have been violated…as long as the violation of rights has not previously been found to be a violation of rights by other courts with jurisdiction over the case. This means cops are free to repeatedly violate the rights until a court rules otherwise, clearly establishing the violation.

Qualified immunity wasn’t meant to be a bad thing. It was intended to give government officials a kind of buffer zone for judgment calls during rapidly evolving situations – the kind of thing that regularly happens during police work. But the doctrine covers all government officials, even those who have ample 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 granted to university administrators who violate the rights of their staff or students. They have nothing to do with the cops, who have to make quick decisions in the face of potentially deadly threats. They are people in offices who have access to a lot of legal advice and time to research the issue at hand.

Thanks to this lawsuit escape hatch, admins feel all too comfortable violating rights on a regular basis:

Administrators rely on qualified immunity to avoid consequences when they engage in intentional, thoughtful, and collaborative efforts to violate civil liberties, such as when they punished a University of New York medical student. Mexico for a pro-life Facebook post; investigated two groups of students at the University of South Carolina for having a pre-approved demonstration specifically on freedom of expression; and denied an Arkansas State University-Jonesboro student the right to testify for her student group because administrators censor all speech outside of a “free speech zone” covering 1% of the campus.

Now FIRE is taking this editorial to court. He filed a amicus brief [PDF] challenging the granting of qualified immunity to university officials who fired an assistant professor for refusing to sign a statement admitting criminal acts he denies having committed.

In October 2021, a federal court in the Eastern District of Kentucky allowed University of Kentucky trustees called immunity, though they argued they violated the First Amendment by not renewing Dr. Ehab Shehata’s contract because of his refusal to sign an affidavit to which he did not believe. Therefore, Shehata could not assert his constitutional rights.

Forced speech is a violation of the First Amendment. As a publicly funded school, the university had an obligation to respect Dr. Shehata’s rights. He chose not to. And the district court, despite finding that Shehata’s rights had been violated, chose not to hold anyone liable for the violation.

Although the district court ruled that Shehata’s refusal to speak was protected by the First Amendment, it denied Shehata’s request for retaliation, granting qualified immunity to the British administrators who fired him. According to the district court, the law was unclear because, in no previous case, had the Sixth Circuit ever considered “whether an employee could be compelled to speak by his public employer.”

While the court may have been right, no case provided precedent covering this particular violation, FIRE argues that there are a multitude of precedents that should have made it clear to university officials that an employee’s speech would be a violation of the First Amendment.

This Court clarified that a public employer cannot fire an employee in retaliation for refusing to speak. More than thirty years ago, he considered the First Amendment rights of public employees to include the right to refrain from speaking on a matter of public interest. Langford v. Lane, 921 F.2d 677, 680 (6th Cir. 1991). In so ruling, the Court relied on long-standing Supreme Court precedent. Identifier. (First Amendment protection “also extends to the ‘right to speak freely and the right to refrain from speaking at all’” (quoting Wooley v. Maynard, 430 US 705, 714 (1977))). In turn, Wooley relied on the Court’s landmark decision in Board of Education v. Barnette to recognize that “[t]he right to speak and the right to refrain from speaking are complementary elements of the larger concept of “individual freedom of spirit”. of oath of allegiance violated the First and Fourteenth Amendments)).

Likewise, it is made clear in this circuit that the First Amendment prohibits retaliation for protected conduct. Indeed, nearly thirty years ago, this Circuit recognized “the contours of the public the employee’s right to be free from any action detrimental to employment on the basis of protected speech” have been clearly established. Williams v. Kentucky, 24 F.3d 1526, 1537 (6th Cir. 1994); see also Kiessel v. Oltersdorf, 459 Fed. Approx. 510, 515 (6th Cir. 2012) (“In the Sixth Circuit, a public employee’s right against retaliation for protected speech has been well established for nearly two decades.”).

While this is not enough to show that specific cases have “clearly established” the law in this circuit, FIRE points out that the Supreme Court itself (which has significantly entrenched the qualified immunity doctrine over the past few decades) chastised the courts for ignoring the obvious. violations by researching the cases directly on point.

On top of that, there’s the question of why qualified immunity—something intended to provide leeway in rapidly changing situations—should even apply to directors facing situations that not only don’t do not evolve rapidly, but which are entirely of their making.

The job of the reasonable college administrator differs greatly from that of the reasonable police officer, and the Supreme Court explained why: Unlike the day-to-day discretionary acts of a college administrator, the responsibilities of police officers require to decide whether to stop or use force at any time, often in life or death situations.

[…]

University administrators will rarely (if ever) face such a situation. The history of the doctrine of qualified immunity under s. reasonably determine this limit. The Administrator has no power of arrest or use of force, so there is no need to assess at any time whether the discretion
recommend using one or the other. Rather, the typical situation subject to the exercise of discretion by a university administrator allows both the investigation of the facts and the determination of the constitutionality of any proposed action.

Given these facts, it makes no sense to grant qualified immunity to university administrators even if there is no “clearly established” case directly to the point. The administrators were given the opportunity to investigate the case law surrounding his plan to impose the floor as well as to seek qualified legal advice on the constitutional implications of this request. That they apparently chose not to shouldn’t stop the professor from seeking justice for this rights violation.

Qualified immunity already does more harm than good when it comes to fast-paced and potentially violent situations. It should not be allowed to encompass situations where things are neither rapidly changing nor potentially dangerous. In extending qualified immunity to school administrators, the court told Dr. Shehata that it recognized his rights, but was unwilling to remedy the breach. And, as FIRE’s brief points out, a right without a remedy really isn’t a right.

Filed Under: 1st Amendment, Free Speech, Qualified Immunity

Companies: fire department, University of Kentucky

About Jessica J. Bass

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