The Tarnished Shield of Qualified Immunity


The tragic killing of Daunte Wright as a result of a Brooklyn Center, Minnesota, police officer, even as former Minneapolis officer Derek Chauvin stood trial nearby for that murder of George Floyd, has resulted in renewed requires federal legislation aimed at reducing police violence. Efforts to enact such legislation stalled in Congress during the waning months of the Trump administration last year. Among activists' top priorities at that time, however, was the removal of \”qualified immunity,\” the legal doctrine that usually shields cops and other government officials-including educators-from financial liability for violating citizens' civil rights.

In this issue's cover story, Yale law professor Justin Driver examines the origins of qualified immunity and also the case for reform, with special attention to the implications for K -12 education (see \”Schooling Qualified Immunity,\” features). Readers may be surprised to understand that cases involving teachers, principals, and school board members happen to be central towards the doctrine's evolution. Noticably would be a 1975 Supreme Court case involving the suspension of three Arkansas students for spiking the punch in a high school social. It was if so the court first articulated the standard that plaintiffs cannot overcome the shield of qualified immunity unless they show the federal government official under consideration violated \”clearly established constitutional rights.\”

As Driver reports, this narrow standard has transformed qualified immunity from a sensible protection for officials undertaking their public duties in good faith into something approaching blanket immunity from legal accountability. If plaintiffs cannot identify a binding precedent involving a government official who violated the Constitution in a nearly identical manner to their personal circumstances, they're doomed to lose. This standard has shielded educators who've engaged in \”heinous conduct that, properly understood, contravenes clearly established law,\” Driver writes. Courts have even granted immunity to educators who've strip-searched students to consider minor contraband, simply because there wasn't any previous case in which someone had infringed on a student's rights in precisely the same way.

In June 2021, as a direct consequence of George Floyd's killing, the nation's Education Association and also the American Federation of Teachers both signed onto instructions contacting Congress to enact police reform. Among their demands was to \”end the qualified immunity doctrine which prevents police from being held legally accountable once they break what the law states.\” An invoice that passed the House of Representatives last summer, the George Floyd Justice in Policing Act, might have done just that by eliminating qualified immunity like a defense from liability for police officers only. Another bill introduced in both chambers, the Ending Qualified Immunity Act, might have curbed the defense for those government officials, including educators.

Driver points out there are top reasons to think separately about cops and educators when it comes to qualified immunity. Unlike the daily work of cops, teachers' responsibilities are not \”inherently imbued with legality and constitutionality.\” A teacher's infringement of her student's rights is far less likely to guide to the loss of life. Finally, the constitutional case law that applies to police is well toned, while the law pertaining to teachers is sparse-and riddled with thorny questions regarding, for example, the actual scope of students' free-speech rights both within and beyond school settings (see \”What Teachers Spy in Homes over Zoom Ends up in Court,\” legal beat).

With Congress to date neglecting to act on calls to overhaul qualified immunity, some states are taking matters into their own hands. In April 2021, for instance, the New Mexico legislature passed a law authorizing citizens to file a lawsuit government employers under hawaii constitution if your state or local worker violates their rights. The measure applies equally to police departments and school districts, also it bans using qualified immunity like a defense. Nick Sibilla from the Institute for Justice, a libertarian law practice that testified in support of what the law states, notes that the legislation's supporters spanned the ideological spectrum, in the liberal American Civil Liberties Union towards the conservative Americans for Prosperity.

The impulse for sweeping reform is understandable, but there may be some help to delaying in the federal level to see the effects, if any, from the state legal changes. Will these laws translate into measurably improved police or teacher behavior? Or can they just mean more costly insurance costs for local governments (that's, the taxpayers) and greater paydays for plaintiffs' lawyers? Like so many matters associated with education policy, they are empirical inquiries to which experience will provide better answers.

Martin West

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