Free speech and the “other” qualified immunity

Free Speech abstract

Over the past few years, qualified immunity has been the legal issue at the forefront of police reform.

While major events like the 2020 death of George Floyd have inextricably linked qualified immunity to over-policing, it’s important to note that it is not limited to criminal justice reform alone.

As our colleague David Deerson noted a few years ago, “Qualified immunity protects all government officials, not just police officers, from financial liability when they violate constitutional rights.”

“Government officials” includes administrators at public universities—which means that, unfortunately, qualified immunity plays a pernicious role in the fight to protect campus free speech.

What is qualified immunity?

Qualified immunity is a doctrine invented by the Supreme Court in the 1960s that lets government officials off the hook from wrongdoing as long as they do not violate “clearly established” laws.

Even if the official in question acted maliciously and violated constitutional rights, qualified immunity still applies unless a plaintiff can show the official knew, or should have known, his conduct was plainly unlawful.

The doctrine’s original purpose was to protect public workers who acted in good faith in instances where they had to make immediate decisions and did not have adequate time to ensure they weren’t violating a law when they acted.

But high-profile cases of police abuse have, often tragically, shown how qualified immunity prevents accountability and allows bad state actors to violate rights without facing legal consequences.

On college campuses, the consequences of qualified immunity may be less tragic than in police encounters—but with over 1,600 public universities in the United States serving millions of students, qualified immunity on campus is a significant problem.

Campus free speech and qualified immunity

In 2017, Arkansas State University (ASU) student Ashlyn Hoggard sued university administrators after she was denied permission to set up a table on campus to inform fellow students about their First Amendment rights and collect signatures for her conservative-leaning organization, Turning Point USA (TPUSA).

ASU has strict rules that confine the practice of free speech on campus to a small, designated “free speech zone,” which students are permitted to use only after they obtain administrative permission. When she applied for permission to set up within the designated zone, she was denied. She decided to try her luck outside of the free speech zone, but campus security shut her down immediately.

Hoggard sued the administration for violating her First Amendment rights.

Campus administrators denied any wrongdoing. They even went so far as to claim that they supported free speech. They asked the court to dismiss the case arguing that Hoggard did not have standing to bring forth the suit because the campus administrators were protected by qualified immunity.

The courts agreed with administrators. Hoggard then asked the Supreme Court to hear her case. They declined.

Qualified immunity is supposed to protect public representatives in instances where they had to make immediate decisions and there was no time to check the constitutionality of their actions. But the ASU campus administrators were not put in a position where an immediate threat of any kind compelled them to act first and consider the consequences later. On the contrary, they had more than enough time to consider whether their actions were constitutional violations of free speech.

As Justice Clarence Thomas opined: “[W]hy should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?”

This judge-made doctrine is an enormous barrier to holding government officials accountable in every area of the law. It creates a trap: If the government can argue a law isn’t clearly established, it can claim qualified immunity, which means courts might never reach the merits of a lawsuit—and will therefore never hand down a decision that clearly establishes the law in question.

Turning on their own

Students are not the only ones being harmed by campus administrators invoking the protection of qualified immunity. Sometimes campus representatives even turn on their own.

For professors who have been retaliated against for teaching a non-politically correct viewpoint in the classroom or posting on social media something that challenges orthodoxy on topics related to race, sex, or sexual orientation, qualified immunity is going to be an even-more-insurmountable barrier.

The speech rights of professors are generally subject to a balancing test which weighs the professor’s interest in speaking against the university’s pedagogical and other interests. Because this balancing test is fact-specific, courts have generally refused to find that university administrators violate clearly established law, even when those officials are expressly targeting a professor for her speech. This means that university bureaucrats can engage in a campaign of retaliation without consequence, as with the one experienced by Pacific Legal Foundation client Elizabeth Weiss.

Dr. Weiss is a fully tenured and acclaimed professor of anthropology at San Jose State University who specializes in osteology—the study of human skeletal remains. She holds controversial views about the Native American Graves Protection and Repatriation Act (NAGPRA), and other similar laws, which require laboratories and museums to hand over certain Native American remains to the tribes for reburial.

“I’m against reburying bones,” she says. “I think they can tell us a lot about the past.”

Weiss believes the bones are a key resource for training young anthropologists and archeologists and especially for forensic anthropologists. Studying remains, for example, can help forensic anthropologists identify abuse-related traits in the bones of children who die of possible abuse and neglect. Considering that child abuse results in nearly 2,000 deaths a year in the U.S., aiding in correctly identifying abuse-related traits in the bones can help bring to justice those who caused the fatal abuse and help bring closure to other family members.

After the 2020 release of her book Repatriation and Erasing the Past, which argues against reburial, Weiss was called “anti-indigenous” and even racist. One day, she came to campus and found herself locked out of the university’s collection of remains, of which she served as the curator for over 18 years.

The ostracization did not end there.

Administrators held a Zoom meeting called “What to Do When a Tenured Professor is Branded a Racist,” as well as a series of “anti-racism” workshops where participants called for censoring her views. Weiss was even denied permission to hold a counter-event where she could make her case. Worse still, she was threatened with disciplinary action and other forms of retaliation if she continued to express her views on campus.

PLF is helping her fight back.

Thanks to qualified immunity, campus administrators know that they are shielded from personal accountability for their actions. While a court may order them to stop ongoing illegal behavior, they are insulated from ever being required to provide compensation to professors whose careers they decimate and reputations they tarnish.

Qualified immunity is particularly inequitable in this university context. None of the typical justifications apply to the bureaucrats that engage in this modern-day witch hunt to drive out the vestiges of independent thought from academia.

As Justice Thomas expressed, university officials are not required to engage in split-second decision-making like police officers. Instead, they can consult with the well-paid attorneys who work with the university to determine whether their actions are illegal.

Indeed, in consultation with lawyers, these bureaucrats often attempt to come up with the craftiest and most subtle ways to violate the First Amendment in order to avoid liability. There is simply no excuse for their illegal behavior. We need to hold them accountable.

Campus bureaucrats beware

University bureaucrats should be required to think twice before they violate the First Amendment. Choosing to violate freedom must be costly. Otherwise, these bureaucrats will be susceptible to the siren song of cancel culture and will choose to restrict freedom rather than allow students or other faculty members to be offended. They will choose suppression of speech rather than bad PR for allowing controversial ideas to spread.

If we do not reform qualified immunity, then we can expect to see professors and students increasingly disciplined or fired for speaking out. If we value freedom of thought on campus, then we must make it possible to hold university officials accountable.