It seems like the Daily Dawg deals with the term “clearly established” just about every week. This comes up when school employees are sued personally for alleged violations of federal law. The lawyer representing that school employee (“the Defendant”) will often file a Motion to Dismiss the case, asserting that the Defendant is protected by the legal doctrine of “qualified immunity.” If this argument works, the Defendant can resume normal life without the fear of personal liability putting clouds in the coffee.
You folks are entitled to “qualified immunity” even when you violate murky, ambiguous legal standards. But if you violate legal standards that are CLEARLY ESTABLISHED then you are in hot water. So there are endless arguments over what is, and is not, CLEARLY ESTABLISHED.
The most popular formulation of the standard for qualified immunity is that it protects “all but the plainly incompetent or those who knowingly violate the law.”
This leads to lawyers saying some pretty unflattering things about their clients. Stuff like this:
Boy Howdy, Your Honor, my client screwed up big time on this one. I mean…what the heck was he thinking???? It was a mistake. A bad judgment call. A very bad one. But whatever else you might say about my client, you can’t say that he KNEW that he was violating the law. He doesn’t know doodlysquat about the law! Believe me, I know. I’ve been trying to school him! Nor, Your Honor, was he PLAINLY incompetent. Maybe a little negligent. Careless. Unthinking. In need of vast improvement. But “plainly incompetent”? I think not!
If the judge buys that argument, the client is off the hook. Embarrassed perhaps, but dismissed from the case.
This “qualified immunity” is a great thing for educators, but there is a problem. It all hinges on what is “clearly established” and the only thing “clearly established” about “clearly established” law is that it’s not “clearly established.” Here’s the latest example.
A child welfare caseworker in Colorado conducted what amounted to a strip search of a four-year old girl, looking for signs of possible abuse. She took pictures also. The parent sued the caseworker personally, alleging that she violated the little girl’s right to personal privacy under the 4th Amendment. The case went to the 10th Circuit Court of Appeals, where two of the three judges held that it was not “clearly established” that this was an unconstitutional search. Thus the caseworker was entitled to “qualified immunity.” The third judge dissented and would have held the caseworker personally liable.
SCOTUS declined to hear the case, thus bypassing a chance to clear things up for us. According to Mark Walsh (no relation), longtime legal editor for Education Week, there are three SCOTUS justices ready to overhaul the law of qualified immunity: Ginsburg, Sotomayor and Thomas. If there were four, the case probably would have gone to the Supreme Court. But it didn’t, so the lawyers will continue to argue over what is and is not “clearly established.”
The 10th Circuit case is Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019). The Supreme Court turned it down on May 20th.
DAWG BONE: THERE IS NOTHING “CLEAR” ABOUT WHAT IS “CLEARLY ESTABLISHED.”
Tomorrow: Do you know what a “catastrophe” is?