OPINION

University officials flagrantly violate student speech rights. Courts let them off the hook.

Tyson Langhofer and John Bursch
Opinion contributors

“Ignorance of the law is no excuse.”

You may have heard this response from a police officer if you have ever tried to get out of a speeding ticket by arguing you were unaware of the speed limit.

It is also one of the most recognized maxims of the American legal system. And for good reason. If subjective knowledge of the law were the standard for culpability, everyone would always plead ignorance after violating the law.

So it may come as a surprise that government officials regularly evade liability for violating citizens’ most fundamental constitutional rights by relying on an argument very similar to the “I didn’t know” defense. The legal term for this defense is “qualified immunity.”

Qualified immunity is not found anywhere in the U.S. Constitution or federal law. It is a doctrine created by the U.S. Supreme Court decades ago. In sum, the doctrine provides that a government official cannot be held liable for violating a person’s constitutional rights unless the right was “clearly established” at the time of the violation – a standard that courts often interpret as requiring a previous legal decision involving nearly identical facts.

In theory, the doctrine seems fair. If a law is not clearly established at the time of the violation, then it seems unfair to punish someone for violating the law. And courts invoke the doctrine most often in cases involving police officers whose jobs require them to make split-second, life-or-death decisions. But in practice, qualified immunity allows all sorts of constitutional abuses to go unpunished. And this is especially true when it comes to First Amendment violations by officials at public universities.

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As attorneys with Alliance Defending Freedom, part of our mission is to defend the First Amendment rights of students and faculty at public universities so that everyone can participate in the marketplace of ideas. Over the past 15 years, ADF has achieved more than 435 victories at campuses throughout the country. But we have also seen firsthand how courts routinely rely on qualified immunity to allow public university officials off the hook for violating students’ First Amendment rights.

Just one recent example: Several years ago, Ashlyn Hoggard was a junior at Arkansas State University. Hoggard wanted to start a Turning Point USA chapter at her campus. The university requires five members to register as a student organization, so Hoggard and another individual set up a table on campus to recruit members for the new chapter.

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Hoggard set up on the side of a large, paved walkway leading to the student union entrance. She was not blocking pedestrian traffic or causing a disturbance. Yet less than 30 minutes after she arrived, university police ordered Hoggard to leave. They said she was violating the university’s speech-zone policy. 

Carl R. Reng Student Union at Arkansas State University in Jonesboro, Arkansas, in 2017.

Hoggard later learned that the university had a policy that required her to obtain permission from a university official 72 hours in advance if she wanted to speak anywhere on campus outside of several small speech zones. Even worse, the policy granted the university official complete discretion in determining whether to grant the request.

The alliance sued the university officials on Hoggard’s behalf, arguing that the policy was unconstitutional, and that the officials violated her First Amendment rights in stopping her from speaking on a public sidewalk.

After almost two years of litigation, the district court held that the officials were entitled to qualified immunity and dismissed the caseOn appeal, the U.S. Court of Appeals for the Eighth Circuit ruled that the officials had violated Hoggard’s constitutional rights, but it also held that the officials were entitled to qualified immunity and could not be held responsible for their unconstitutional actions. 

In other words, public university officials stopped a student from peacefully exercising her First Amendment rights, but they got off scot-free because of qualified immunity. Under current law, some circuits even grant a presumption in favor of qualified immunity, for educators in particular.

This is backwards and unnecessary. The Supreme Court should prevent this type of injustice by revising the qualified immunity doctrine to eliminate this presumption. Public university officials and administrators should be held to a higher standard than police officers and other state officials – not a lower one.

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Supreme Court Justice Clarence Thomas speaks Sept. 16, 2021, at the University of Notre Dame. Thomas and fellow associate justice Sonia Sotomayor have both suggested the court needs to revisit its thinking on qualified immunity.

As Justice Clarence Thomas wrote when the Supreme Court decided not to hear Hoggard’s case, “why should university officials, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?” The Supreme Court has “never offered a satisfactory explanation to this question,” Thomas wrote. 

And there isn’t one. Americans should be able to expect a broader range of professional competence from school officials at the university level, especially when these decisions flagrantly violate students’ most fundamental rights.

Tyson Langhofer is senior counsel and director of the Center for Academic Freedom at Alliance Defending Freedom (@AllianceDefends). 

John Bursch is senior counsel and vice president of appellate advocacy at Alliance Defending  and served as Michigan’s solicitor general from 2011 to 2013.

This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.