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Campus Officials at Growing Risk of Loss of Qualified Immunity

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Rebecca Stewart: 513-479-3335


Campus Officials at Growing Risk of Loss of Qualified Immunity

WASHINGTON / September 9, 2021 – Since 1982, employees of public institutions have been shielded from lawsuits by the doctrine of qualified immunity (1). Recent legal decisions reveal that courts now are rethinking the doctrine, both in the criminal system and on college campuses.

In three cases, Taylor v. Riojas, McCoy v. Alamu, and Tanzin v. Tanvir, the U.S. Supreme Court signaled its willingness to reconsider the long-standing qualified immunity defense (2). These decisions led court watchers to conclude that the “Supreme Court may now be entering a new dawn on qualified immunity, and judges of all levels should take notice.” (3)

Even if the Supreme Court ends up not revisiting the issue, school officials can no longer depend on the doctrine when engaging in conduct that clearly violates students’ due process rights. Indeed, Circuit Courts have denied school officials’ attempts to invoke a qualified immunity defense in three recent Title IX decisions:

  1. Eleventh Circuit: Doe v. U. of Southern Alabama – 2020
  2. Sixth Circuit: Doe v. Michigan State U – 2020
  3. First Circuit: Doe v. Lincoln-Sudbury Region et al – 2021

In Doe v. University of Southern Alabama, Doe alleged the defendant school officials were not entitled to qualified immunity because (1) the defendant school officials acted outside their discretional authority, and (2) the defendant school officials violated Doe’s constitutional right to due process that was clearly established. Although the court ruled that the school officials acted inside their discretional authority, the district court found that Doe “sufficiently alleged a claim that the decision-makers were biased.” Because the due process principle “is clearly established, the Defendants are not entitled to qualified immunity if [Doe] can demonstrate that they were biased.” (4)

In Doe v. Michigan State University, the Plaintiff’s constitutional claim addressed the right to a live hearing and cross-examination. The district court cited to Doe v. University of Cincinnati stating, “the Sixth Circuit held that ‘cross examination is essential to due process only where the finder of fact must choose between believing an accuser and an accused.’”  Thus, the Sixth Circuit accepts cross examination as a due process guarantee, making it “clearly established.” Because the disciplinary proceedings in this case were initiated in February 2018, which was after the Sixth Circuit’s decision in University of Cincinnati, the plaintiff has plausibly demonstrated a violation of a clearly established right, thus eliminating the defendant school officials’ qualified immunity defense at the pleading stage (5).

In Doe v. Lincoln-Sudbury Region et al the complaint plausibly alleged that a retraction letter “clarifying the results” of the school’s sexual assault investigation and concluding that the plaintiff was guilty of sexual assault violated the plaintiff’s right to due process. The defendant student officials failed to “notify him” about retracting the letter and failed to provide him a “meaningful opportunity to be heard” before the issue of the retraction letter. Looking at whether the right is clearly established, the First Circuit noted it had been clearly established that due process safeguards must be afforded when someone is deprived of their property interests. Thus, the district court concluded that “no reasonable school official would have understood that their conduct—issuing the letter, which they allegedly knew to be unsupported by the underlying evidence, without notice or opportunity to be heard—would satisfy due-process requirements.”  (6)

In Doe v. Lincoln Sudbury Regional School Committee, the court set out the following test to assess whether to defendant school officials were protected under qualified immunity; “[t]he [district] court must determine (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” The Doe v. Michigan State University decision relied upon a similar test.

Removal of the qualified immunity defense has occurred in at least one other campus case. In Business Leaders In Christ v. the University of Iowa, et. al., the Eighth Circuit denied qualified immunity to University officials who discriminated against a Christian student group since the case law on the free exercise of religion is so clear and undisputed (7).

SAVE’s “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations” summarizes over 200 court decisions that are consistent with the recent amendments to the Title IX regulations (8). In nearly one-quarter of these cases, judges cited constitutional due process or equal protection bases to support their decision.

Officials at public schools need to think twice before they violate the clearly established constitutional protections of students, or they may find themselves personally liable for civil rights violations (9).



Addendum of September 10: Also see editorial by Greg Lukianoff and Adam Goldstein: Administrators who violate the 1st Amendment rights do not deserve protection of qualified immunity