Cases
Walsh v. Hodge
CASE SUMMARY
Did we achieve our litigation objective? No. The Supreme Court denied certiorari.
Court Outcome: The Fifth Circuit denied Dr. Walsh’s lawsuit against the University of North Texas on qualified immunity grounds.
Larger Impact: Universities will continue to get away with due process deficits in their Title IX proceedings as long as they continue to receive qualified immunity.
Summary: NCLA filed a petition for a writ of certiorari asking the U.S. Supreme Court to reject the Fifth Circuit’s expansion of the qualified immunity doctrine and thereby to resolve two separate splits of authority in the federal courts of appeals.
NCLA represented Dr. Walsh, who was fired after a constitutionally inadequate Title IX university hearing on allegations that he sexually harassed a student. He was not permitted to introduce evidence to prove his innocence or have any real-time opportunity to confront and cross-examine his accuser to allow the hearing panel to evaluate her—and his—credibility. Instead, the university hired an outside investigator to look into the complaint and testify before the hearing. In response, Dr. Walsh filed a federal suit against the university officials involved in his disciplinary hearing.
The Northern District of Texas concluded that the Due Process Clause protected Dr. Walsh’s right to cross-examine his accuser and that allowing him to cross-examine an outside investigator who relayed the accuser’s story was not a reasonable substitute. It also decided that his due process right was “clearly established,” negating qualified immunity for Defendants.
On appeal, the Fifth Circuit conversely held that university officials were entitled to qualified immunity. While the Fifth Circuit agreed with the district court that the university officials violated Dr. Walsh’s procedural-due-process right to confront and cross-examine witnesses, it nonetheless accorded qualified immunity to the university officials because, it said, the law was not “clearly established.”
Justices from both ends of the jurisprudential spectrum—JJ. Thomas and Sotomayor—have criticized the “clearly established” prong of the qualified immunity test. Circuit courts are split on how to apply the Supreme Court’s past pronouncements. First, they differ as to whether the mere fact of a circuit split on a point of law suffices to make the law not clearly established. Second, they also disagree about the level of specificity a relevant precedent must have to shield unlawful deliberative, as compared to split-second, decisions made by officials.
NCLA argued that whatever might be the justifications for qualified immunity given to government officials forced to make split-second decisions that violate civil rights, those justifications did not support giving qualified immunity for official actions taken with time and opportunity to deliberate.
RELEVANT MATERIALS
NCLA FILINGS
PRESS RELEASES
NCLA Petitions U.S. Supreme Court to Undo Fifth Circuit’s Expansion of Qualified Immunity Doctrine
February 12, 2021
IN THE MEDIA
Professor punished by kangaroo court asks Supreme Court to let him punish university officials
The College Fix
February 7, 2023