Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights

Abstract

This article argues that the courts should deny qualified immunity to public college and university officials who are sued in their personal capacity for violating a student’s First Amendment right to freedom of speech. Qualified immunity shields public officials from personal liability under 42 U.S.C. § 1983 for the violation of a federal constitutional or statutory right insofar as the right in question is not “clearly established” by the law.

The article argues that the expressive rights of students at public colleges and universities are clearly established for purposes of qualified immunity, and that, therefore, courts should reject qualified immunity for two broad categories of First Amendment violations on campus: the enactment of facially unconstitutional speech codes, which chill campus dialogue and the free exchange of ideas by their very existence, and the censorship and punishment of particular instances of constitutionally protected student speech and expressive activity.

The article argues that student plaintiffs would then be able to use Section 1983 suits to vindicate their right to freedom of speech by pursuing monetary damages from individual administrators. Faced with the prospect of paying damages out of their own pockets, administrators would be forced to rethink their policies and practices toward student expression and would be more likely to respect student speech rights, thus allowing a true “marketplace of ideas” to flourish on campus.

Keywords: first Amendment, freedom of speech, higher education, constitutional law, qualified immunity