Justices Sotomayor and Thomas agree. Professors Neal Katyal and Philip Hamburger agree. And the American Civil Liberties Union (ACLU) and the New Civil Liberties Alliance (NCLA) agree. The United States Supreme Court should reconsider its qualified immunity jurisprudence. And that is precisely what the NCLA has asked the Supreme Court to do in its petition for certiorari in Felkner v. Rhode Island College.
Qualified immunity is a court-created defense that allows government officials to escape liability even when they engage in egregious conduct violating Americans’ constitutional and statutory rights—so long as they did not violate “clearly established law.” Indeed, under Supreme Court precedent, officials can evade accountability unless a factually similar case has already established that the conduct at issue infringed on an individual’s constitutional or other rights. Such a rule bars legitimate constitutional claims by requiring a “first” case, sending precedent-setting cases to a permanent holding room.
William Felkner slipped into this permanent qualified immunity purgatory when the Rhode Island Supreme Court barred his First Amendment claims—claims that it had previously ruled were entirely valid to bring to court. Felkner, a self-described conservative libertarian who was booted from Rhode Island College’s Master of Social Work program, had sued various faculty members and administrators, alleging they had discriminated against him based on his viewpoint in violation of his free speech rights.
Although the state Supreme Court held Felkner had presented sufficient evidence to establish their violation of his First Amendment rights, the court held that qualified immunity prevented him from suing for damages. It was not enough for Felkner to provide evidence that faculty members and administrators told him the college, as a “perspective school,” required students to lobby the Rhode Island legislature in support of the school’s “perspective,” which was “a leftist position on social welfare issues.” Nor was it enough that the college barred Felkner from focusing on welfare reform for his graduate thesis, a topic Rhode Island College considered “toxic.” Rather, to recover damages for the infringements on his First Amendment rights, the Rhode Island Supreme Court, relying on Supreme Court precedent, held that Felkner needed to identify a closely analogous prior case establishing that similar conduct violated constitutionally protected free speech rights.
Such a rule perpetuates acknowledged constitutional violations. It even guarantees increasingly expansive suppression of speech because officials know they can act with impunity as almost any power grab can be presented as unprecedented. With this qualified immunity doctrine, the U.S. Supreme Court excuses—and dangerously encourages—unlawful conduct.
The Supreme Court’s qualified immunity precedent also holds no basis in law or history. As NCLA details in its petition for review, when Congress passed Section 1983, which authorizes private lawsuits for constitutional or other violations against those acting under color of state law, it expressly provided that such government officials “shall be liable.” That language “is absolute and unqualified,” and the historical record confirms Congress, which passed the law in the aftermath of the Civil War, intentionally sought to halt “the reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States,” by holding state actors liable. Yet nearly 100 years later, the Supreme Court invented the “clearly established law” standard out of whole cloth, a standard that contravenes the plain text of the law and, sadly, continues to control to this day.
Notwithstanding this nullification of the plain language of Section 1983, the textualists on the Supreme Court (other than Justice Clarence Thomas) have regularly ignored entreaties for the high court to reconsider the flawed doctrine. Meanwhile, Justice Sotomayor has rightly found other flaws with the “clearly established law” doctrine, stressing that it “sends an alarming signal to … the public [that] palpably unreasonable conduct will go unpunished.” Examples include everything from police stealing suspects’ property to a jailer watching a pretrial detainee commit suicide in a cell without intervening or calling 911.
Felkner v. Rhode Island College offers an ideal vehicle for the Court to restore the statute’s original meaning and revoke the get-out-of-jail-free card played by governmental actors who deprive Americans of their constitutional rights to avoid liability. Reconsidering this doctrine within the safe confines of academia, where state actors have time to reflect on and reverse unconstitutional intrusions, will allow the Supreme Court to address the textual and historical correctness of qualified immunity unencumbered by concerns about eliminating qualified immunity in the context of policing—even though as the NCLA’s petition stresses, overruling qualified immunity will not require officers to be perfect; it will merely require them to act reasonably.
While Justice Sotomayor’s complaints of qualified immunity focus most forcefully on excessive force claims, she should see Felkner as providing an opening salvo in the destruction of the despised doctrine. The recent petition for certiorari in Felkner should also appeal to the textualist wing of the Supreme Court because, as NCLA’s petition establishes, the plain language of Section 1983 and the original understanding of the “shall be liable” language confirm that the “clearly established law” standard is untethered from its statutory language.
While the Supreme Court is already set to weigh in on three NCLA cases this term alone, the NCLA’s petition for certiorari in Felkner v. Rhode Island College should also command the high court’s attention, as the time has come for the Supreme Court to change course, reverse the unsound doctrine of qualified immunity, and restore the unqualified remedy Congress provided to the people for deprivation of their fundamental Constitutional rights.