Toolbox Tuesday: What’s going to happen with “qualified immunity”?

The Toolbox comprises ten “tools” designed to help campus administrators maintain a safe campus while serving students who engage in challenging behaviors.  Sometimes parents or students sue campus personnel after disciplinary sanctions are imposed.  When that happens, the educator is likely to cite the “qualified immunity” educators enjoy that protects them from personal liability. 

“Qualified immunity” comes up in school law a lot.  I checked the Daily Dawg entries for 2019 and found 21 mentions of this legal doctrine.  Qualified immunity also applies to police officers accused of using excessive force.   So let’s think about that in light of recent developments.

The legal doctrine of “qualified immunity” will not help Officer Derek Chauvin when he is tried for the murder of George Floyd.  That will be a state criminal prosecution.  I’m sure that Minnesota law provides many levels of legal protection for officers’ use of force, but the legal concept of “qualified immunity” that I’m talking about is available only in federal civil litigation.  For educators, this might involve a suit accusing the principal of infringing on free speech, or a superintendent denying due process of law, or a teacher discriminating based on disability.  In any such instance, the lawyer representing the educator will likely argue that the doctrine of “qualified immunity” protects the educator from personal liability.

Cities, states, and the federal government are now considering ways to improve law enforcement practices.  Among the many suggestions being made is the repeal of the doctrine of qualified immunity.   Educators would be wise to keep an eye on this debate.   A bill entitled the Ending Qualified Immunity Act has been introduced.  It would amend the relevant section of federal law by adding the following:

It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed.  Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

If enacted, that language would prevent a police officer from claiming qualified immunity if the officer’s use of force was so excessive as to violate the civil rights of a person.  But it would also prevent an assistant principal from claiming qualified immunity after ordering in-school suspension for a student based on what the A.P. thinks was bullying and a judge later determines is constitutionally protected free speech.

Congress could revoke the doctrine of qualified immunity in cases like Mr.  Floyd’s--where physical force is used, resulting in death or serious injury.   If Congress did that, the next officer who kneels on a person’s neck for nine minutes would face personal liability in a civil suit. 

Or they could revoke qualified immunity altogether.  That move would not only put abusive cops at risk, it would also put educators at higher risk.  That’s what the Ending Qualified Immunity Act would do. Stay tuned, Readers.


Tomorrow: treating parents as partners.