pillars feat
Indiana court invokes absolute immunity in denying professor’s free speech claim  

By November 7, 2017

In a recent ruling, the Court of Appeals of Indiana denied a professor’s free speech claim, holding that Purdue University administrators are absolutely immune from suit. The ruling sets a dangerous precedent for students and faculty seeking vindication for First Amendment violations in our nation’s courts.

The court’s decision revolved around an extraordinary expansion of absolute immunity — a doctrine preventing parties from successfully suing government officials. Rooted in the medieval principle that the king may do no wrong and thus may not be sued without his consent, courts and legislatures have reshaped this concept to the realities of our democratic society, resulting in extremely few officials having this impenetrable shield from liability. Nowadays, it protects judges, prosecutors, politicians, and a smattering of other bureaucrats from suit when engaged in their official duties. The overarching purpose, in the words of one court, is to “preserve their independent decision-making and to prevent undue deflection of attention from public duties.”

Although college officials are not judges or prosecutors, courts do occasionally bestow absolute immunity upon them in certain situations. For example, in 2012, the Colorado Supreme Court held that officials at the University of Colorado at Boulder were immune from suit for firing a professor because their decision “was a quasi-judicial action functionally comparable to a judicial process.” The decision upheld a lower court ruling that compared the university’s process of terminating the professor to an administrative hearing. The courts held that, although these officials are not judges, their actions were similar enough to warrant absolute immunity.  

In last week’s ruling, the Indiana court also analogizes college officials to judges, stating that “[t]he same policies that underlie the grant of absolute judicial immunity to judges justify the grant of immunity to non-judicial officers who perform quasi-judicial functions.” The court reasoned that since these college officials acted like judges during the university hearing process, that they may not be held liable for decisions rendered during these proceedings.

The problems with this holding are too extensive for a short blog, but let’s start with the most pressing: Shielding colleges administrators from suit eradicates any notion of accountability for even their most ridiculously flawed and egregious decisions. The possibility of getting hauled into court for infringing a student’s or professor’s First Amendment rights helps to ensure that these fundamental freedoms are protected on college campuses. This is why judges properly refuse to grant any form of immunity for state college administrators who violate the well-established rights of students or professors.

Such judicial cautiousness is well-warranted, as extending absolute immunity to college officials will have a disastrous impact on civil liberties in higher education. Any college administration could simply mask their determination in legalistic procedures to avoid liability for willful or grossly negligent First Amendment violations.

In this case, Professor Maurice Eisenstein was charged with “harassment” by Purdue University officials for online comments constituting protected speech. He was cleared of this charge after FIRE intervened, yet still found guilty of “retaliation” for other comments. This finding prompted Eisenstein to pursue this lawsuit, only to then find that the doors of Indiana courts are effectively closed to his claims, leaving him with no legal recourse. If this perverse rationale were accepted by the many courts currently hearing the free speech claims of students and professors across the United States, the First Amendment would be a dead letter on college campuses.

Eisenstein vows to appeal this decision to a higher court. A fresh set of judicial eyes may set the record straight on this issue, and we’ll keep our readers apprised of the result.

Schools: Purdue University