A university requires a professor to publicly say something he doesn’t believe, and the professor refuses. The university fires him. A district court holds the university’s actions violated the First Amendment, but then rules that the administrators responsible for punishing the professor aren’t liable. The culprit in denying the professor a remedy for the deprivation of his constitutional rights? A legal doctrine that protects government officials called qualified immunity.
FIRE has worked to push back on immunity doctrines to ensure public officials are held accountable for constitutional violations. Where there is a right, there should be a remedy. Yet, time and time again, courts have absolved government officials who violate the Constitution.
In October 2021, a federal court in the Eastern District of Kentucky granted University of Kentucky administrators qualified immunity, despite holding that they violated the First Amendment in non-renewing Dr. Ehab Shehata’s contract based on his refusal to sign a sworn statement that he didn’t believe. Consequently, Shehata could not vindicate his constitutional rights.
Last week, FIRE filed an amicus curiae brief in Shehata v. Blackwell, in support of Dr. Shehata and his appeal in the U.S. Court of Appeals for the Sixth Circuit.
The First Amendment protects public employees
Shehata worked as a surgeon and assistant professor at the UK College of Dentistry from 2013 until June 2020. In January 2019, UK’s provost accused Shehata of fraudulent billing practices, initiated an investigation, and suspended Shehata from clinical activities. In August 2019, UK’s general counsel advised Shehata that the university would not renew his contract unless he signed a sworn statement, for his public file, admitting that he committed fraud. Shehata denied (and still denies) he did any such thing, and refused to sign the statement. So the university fired him.
Just as the First Amendment protects public employees who speak out on matters of public concern, it protects those who refuse to speak on such issues. In 1977, in Wooley v. Maynard, the Supreme Court held the right to speak and the right not to speak are equally protected under the Constitution. It has also long been the case that public employers cannot retaliate against employees for engaging in protected expression.
FIRE asked the Sixth Circuit to reverse the district court’s grant of qualified immunity on Dr. Shehata’s claim of First Amendment retaliation, pointing out that “a right without a remedy is simply not a right.”
A federal statute, 42 U.S.C § 1983, gives those like Shehata, who have been deprived of constitutional rights by state actors, the right to sue for damages. The Supreme Court has recognized that money damages under this statute are an important means of vindicating individuals’ constitutional rights after state actors violate them. However, officials are protected by qualified immunity if the rights they are accused of violating were not “clearly established” at the time of the violation.
Although the district court held that Shehata’s refusal to speak was protected by the First Amendment, it dismissed Shehata’s retaliation claim, granting qualified immunity to the UK administrators who fired him. According to the district court, the law was not clearly established because in no previous case had the Sixth Circuit ever addressed “whether an employee could be forced to speak by his public employer.”
The district court was mistaken, as the Sixth Circuit has addressed this issue before, though perhaps not in a single case. However, the history of qualified immunity in the Supreme Court demonstrates that there need not be a case directly on point for the law to be clearly established. As FIRE explained in its brief, “By improperly fixating on a factually identical in-Circuit case, the district court overlooked that the touchstone of qualified immunity is the reasonableness of the officials’ actions.”
Qualified Immunity is all about reasonableness
In July 2021, the Supreme Court declined to hear an appeal of an Eighth Circuit ruling holding that public university administrators who violated a student’s First Amendment rights were entitled to qualified immunity, and were, therefore, not liable for damages. In a statement respecting the Court’s denial of certiorari in that case, Justice Thomas asked why university officials “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?” He questioned whether the history of qualified immunity could possibly support such a rule.
FIRE agrees that it does not.
From the very first cases to grant qualified immunity, the Supreme Court emphasized that officials should be held liable if they exceed the lawful boundaries of the power imbued by their position. While Section 1983 does not expressly grant immunity, the Court held in Pierson v. Ray that police officers were nevertheless entitled to the defense of “good faith and probable cause” that they enjoyed at common law. The Court later extended similar immunity to all state officials, but made clear the availability of immunity would vary depending on “the scope of discretion and responsibilities” of a defendant’s office.
Eventually, the Court came to identify the boundaries of officials’ power by asking whether the law had been “clearly established” at the time of the challenged act, such that the official could know what they were doing violated the Constitution. That test still grants immunity only to officials whose actions reflect an objectively reasonable decision for someone in their position.
Unlike police, university administrators can take time to know the law
As Justice Thomas pointed out, courts often grant qualified immunity to police officers and university administrators in the same way, even though doing so ignores the court’s history of considering the reasonableness of officials’ actions relative to their varying responsibilities. Some confusion may exist because the Court has sometimes described “clearly established law” in ways that appear to diverge or conflict.
But “reasonableness” has always been the Court’s touchstone for qualified immunity, and the Court has acknowledged that the job of a reasonable university administrator is not the same as that of a reasonable police officer. As we wrote in our brief, “Unlike the day-to-day discretionary acts of a university administrator, police officers’ responsibilities require deciding whether to arrest or use force at a moment’s notice, often in life-or-death situations.”
In Kisela v. Hughes, the Court pointed out that that specificity is of particular importance in determining whether police officers should have reasonably known an arrest or use of force violated the law. In Kisela, within minutes of arriving at the scene after receiving a report of a woman “hacking a tree with a kitchen knife,” an officer observed a woman holding a knife and ordered her to drop it. When she ignored the command and started moving toward another person, the officer had only a moment to decide whether the Constitution would permit him to use force.
FIRE has worked to push back on immunity doctrines to ensure public officials are held accountable for constitutional violations.
University administrators simply do not face that kind of situation. As explained in our brief, “The typical situation subject to a university administrator’s exercise of discretion, rather, permits both investigation of facts and determinations regarding the constitutionality of any proposed action.” Consequently, they should know the constitutional boundaries of their powers without a single case spelling it out. Recognizing this would ensure that more plaintiffs like Dr. Shehata can vindicate violations of their First Amendment rights.
FIRE thus asked the Sixth Circuit to reverse the district court’s grant of qualified immunity on Dr. Shehata’s claim of First Amendment retaliation, pointing out that “a right without a remedy is simply not a right.”
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).