CounterCurrent: Week of 6/27
I’ve got good news and bad news. Here’s the good news: More and more, American colleges and universities are being sued for their heinous violations of free expression, due process, and other constitutionally protected rights. The bad news? You’re paying for many schools’ legal fees, and even their monetary penalties if they lose.
We all know that public institutions are funded by taxpayer dollars. But what many don’t think about enough (myself included) is that this includes money spent in legal defense. That’s right: not only do you pay for the bloated bureaucracies in all of your state’s public institutions, but you also pay for their lawyers when these same administrators invariably mess up and get sued. Why is this allowed, and can anything be done?
In this week’s featured article, National Association of Scholars Policy Director Teresa Manning examines this problem, using her native Virginia as a case study. She points to three recent lawsuits—those of Kieran Bhattacharya (University of Virginia), Kiersten Hening (Virginia Tech), and Alyssa Reid (James Madison University)—whose cases pertain to free speech, free expression, and Title IX, respectively.
As disturbing as they are, the specific details of each case are not what should alarm us most. As Manning writes, “it’s more concerning that Virginia taxpayers are footing the litigation bill—not only for the schools’ lawyers to defend employees … but also to pay any judgment if a complainant prevails.”
To explain why this is so, she points to a relatively simple explanation—agency law—as well as a far more complicated matter: the oh-so-controversial practice of qualified immunity.
The agency law issue is pretty straightforward. “The employee is presumed to be acting as an agent of the employer, so the latter is the party responsible for the employee’s actions. By this understanding, employees of state universities are actually agents of the Commonwealth of Virginia—not only paid by taxpayers but also then defended by taxpayer dollars when they must appear in court for their employment-related actions.” This may not sound right or fair, but it’s on the books and is in some cases appropriate (such as when a public institution is sued by a hostile party in bad faith).
The much more interesting question is whether public colleges and universities ought to enjoy the privilege of qualified immunity. You’ve probably heard of this concept before, as it has recently stirred controversy regarding its use in policing. Police officers do not enjoy full immunity, which is reserved for a select few (e.g., judges), but they do have qualified immunity, meaning that they are shielded from lawsuits stemming from cases in which they make an honest mistake in the heat of the moment.
Manning argues that colleges and universities should not enjoy these protections, largely because they operate in a radically different way than, say, the police. She writes,
… qualified immunity is most compelling as applied to police, including their interactions with drivers, since police must often make decisions precisely in tense, time-sensitive and unpredictable situations ...
Not so with employees of public universities. Such school officials usually act with plenty of time, plenty of deliberation, and, increasingly, in concert with other employees in ways that are petty, conspiratorial, and ideological, as illustrated by the medical student case at the University of Virginia. Yet these university employees raise the defense of qualified immunity and, more often than not, the defense is allowed.
What if judges didn’t allow the defense? Well, it would force public institutions to act with more integrity, and they would know that their own budgets are on the line if they don’t. “Financial incentives need to promote responsibility, and the public interest, not the opposite,” Manning writes. “Let school officials defend themselves. Deny them immunity.”
Recent case law has begun to favor aggrieved students and professors. That trend should continue, especially when concerning Title IX, due process, and free speech. Denying public colleges and universities qualified immunity has the potential to change the actions, if not the hearts, of overreaching administrators. “[M]ake them pay and things will change.”
CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications & Research Associate David Acevedo. To subscribe, update your email preferences here.