Qualified immunity hurts school kids, too
The debate over qualified immunity has focused largely on how the court-manufactured doctrine has provided sweeping protections to law enforcement officials who willfully violate individual’s constitutional rights.
But the doctrine’s bizarre shield protects more than cops. It can, and has, been extended to all sorts of government officials – including, as Slate notes, public school teachers and administrators who have perpetrated horrors on the kids in their charge:
In T.O. v. Fort Bend Independent School District, the 5th Circuit dismissed a complaint brought on behalf of a first grader who claimed that a teacher seized him by the neck, threw him to the floor, and held him in a chokehold for several minutes. Six days later, in J.W. v. Paley, the court tossed a lawsuit filed on behalf of a special education student who was tased by a school resource officer multiple times, including after the student was lying face down on the ground and not struggling.
Both students brought claims under the Fourth Amendment, which protects civilians from unreasonable seizures, including excessive force at the hands of government actors. Typically, Fourth Amendment excessive force claims arise in the law enforcement context—where police beat or kill a person in the course of detaining them, for instance. The amendment applies to state actors writ large, not just the police, and therefore should presumably apply to public school employees. But the 5th Circuit has been unwilling to say that students have a Fourth Amendment right to be free from excessive force in school.
Let that sink in for a moment…children have no constitutional right to be free from excessive use of force in a school. Thanks to qualified immunity.
But it gets much, much worse:
Qualified immunity’s implications do not end at T.O. and J.W. losing their cases. Under qualified immunity, the court is allowed to conclude that a right is not clearly established and dismiss the case on that basis, without addressing the substance of the underlying right. The practical effect is that it is still unclear whether students have a Fourth Amendment right to be free from excessive force in school and the court can therefore continue to dismiss these types of cases on qualified immunity grounds, without clarifying the right, in perpetuity.
Qualified immunity, then, also protects judges from having to lift a finger to end the abuse.
The solution, then, is for Congress to end qualified immunity – across the board. But don’t count on that to happen. State actors have stacked the rules so far in their favor that even modest reforms will prompt them to wail that the republic will fall without their get out of jail free cards.