For Police, not Professors: Why University Officials Should Be Denied Qualified Immunity for First Amendment Violations (And Why Police Officers and the Fourth Amendment Are Different)

Drake Law Review (forthcoming)

32 Pages Posted: 20 Jan 2023 Last revised: 10 May 2023

See all articles by Tyler Smotherman

Tyler Smotherman

Texas Tech University, School of Law

Date Written: January 10, 2023

Abstract

Contrary to popular perception, qualified immunity does not apply just to police officers. Instead, the controversial doctrine shields all government officials from civil liability for all types of constitutional torts. This includes public university officials who violate students’ First Amendment rights through censorship and viewpoint discrimination. Like the doctrine itself, the application of qualified immunity to universities’ First Amendment violations has come under increased scrutiny. As recently asked by Justice Thomas, “[W]hy should university officers, 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?” This Article is the first comprehensive examination of that question in the academic literature. Specifically, it is the first to argue, from both legal and public-policy perspectives, that university officials and police officers are entirely different types of officials who merit entirely different qualified-immunity analyses for their most common constitutional torts.

Both common law and statutory law support treating university officials’ First Amendment violations differently than police officers’ Fourth Amendment violations. Likewise, numerous practical and public-policy concerns weigh in favor of treating these two types of officials and violations differently. Even while arguing that qualified immunity—at least from an originalist perspective—is a legal farce, this Article recognizes the doctrine’s important role in keeping police on the streets and keeping those streets safe. Therefore, for those skeptical of qualified immunity’s legal basis but sympathetic to the doctrine for public-policy reasons, this Article provides a framework for reform. Using First Amendment violations on university campuses as an example, this Article outlines why the Supreme Court should abolish qualified immunity in many contexts but still maintain an “immunity” of sorts for police officers via the Fourth Amendment itself. Many legal and political obstacles stand in the way of comprehensive qualified-immunity reform. But as the first step on a long journey, the Supreme Court should heed Justice Thomas’s call to reconsider its inapt “one-size-fits-all test” for qualified immunity. When it does so, the Court should remember that the First Amendment is not the Fourth Amendment, and professors are not police.

Keywords: First Amendment, Qualified Immunity, Fourth Amendment, Free Speech, Speech, Expression, Free Exercise, University, Universities, Section 1983, 1983, 42 U.S.C. 1983, immunity, official, liability

Suggested Citation

Smotherman, Tyler, For Police, not Professors: Why University Officials Should Be Denied Qualified Immunity for First Amendment Violations (And Why Police Officers and the Fourth Amendment Are Different) (January 10, 2023). Drake Law Review (forthcoming), Available at SSRN: https://ssrn.com/abstract=4329004 or http://dx.doi.org/10.2139/ssrn.4329004

Tyler Smotherman (Contact Author)

Texas Tech University, School of Law ( email )

United States

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