Editor's Note: This article was originally published by Law & Liberty on June 24, 2021 and is crossposted here with permission.
Virginia’s public universities are getting sued—and Virginia’s citizens are paying the price. This needs to change.
In March, for example, the University of Virginia lost its motion to dismiss a case brought by Kieran Bhattacharya, a medical student who questioned the concept of “microaggressions” as “subjective” during a university-sponsored panel discussion. Despite his polite and thoughtful comportment (the exchange was recorded), the organizers of the event filed a “Professional Concern Card” against him, then banned him from campus, and finally had him expelled. He filed suit in October 2018 claiming the school violated his First Amendment free speech rights.
Virginia Polytechnical University, or “Tech,” has also recently been sued for First Amendment violations—twice, in fact: First by the organization Speech First on behalf of students challenging the school’s harassment policies for unconstitutionally chilling speech because they ban “unwelcome jokes about someone’s identity” (or not reporting such jokes) and also ban “urging religious beliefs on someone who finds it unwelcome.” Another policy requires students to register with the University before handing out political flyers on campus. This “intimidates students into silence … based on content,” says Nicole Neilly, Speech First President. The second suit was brought by former Tech soccer player Kiersten Hening who claims her coach, Charles Adair, punished her when she refused to kneel before games when a “unity statement” was read. Such kneeling is a form of political protest associated with the Black Lives Matter movement and requiring it looks like compelled speech. Hening says the pressure by her coach was “so intolerable that I felt compelled to leave the team.”
Last, James Madison University (“JMU”) has been sued by Alyssa Reid, a former employee who says a faculty member, and once romantic interest, falsely accused her of sexual harassment and then tapped cronies in the Title IX office to investigate her, withholding information and evidence in the process: “I didn’t receive information about the case against me until I had already been suspended by the University,” she reports. Her claim alleges due process violations.
While the facts of these cases are themselves concerning, it’s more concerning that Virginia taxpayers are footing the litigation bill—not only for the schools’ lawyers to defend employees (typically provided by both University counsel and often also the state Attorney General), but also to pay any judgment if a complainant prevails.
Why should Virginians pay to defend these wrongheaded policies or for the ideological misconduct of school officials? Shouldn’t they be responsible for their own acts and their own defense?
Part of the answer is agency law in employment, which applies in both the private and public sector: 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.
That said, the agency relationship breaks down when employees engage in intentional bad acts, since principals don’t usually employ agents for deliberate wrongdoing.
However, another issue arises at state universities or in the public sector: The doctrine of immunity, or the protection from lawsuits and liability given to public employees when they’re engaged in official acts. Immunity is under scrutiny now, not as applied to school officials but as applied to police—also public employees—because of highly publicized, violent police encounters.
But the immunity doctrine is best explained as applied to other officials in the justice system: Judges and prosecutors. These officials enjoy “full immunity,” or complete immunization from lawsuits for their official acts, since without such protection they would likely face suit all the time. After all, their official acts inevitably anger someone—the losing party in a case, for example, or those charged with crimes.
Such “full immunity” is contrasted with “partial immunity,” also called “qualified immunity,” conferred on other state actors, such as police, but only when they make honest mistakes or, as one court put it, make “bad guesses in gray areas.”Second guessing such decisions is not only unfair but risks public harm if such officials fail to act for fear of lawsuits. (Think of first responders hesitating because they fear getting sued.)
However, public officials cannot invoke immunity when they violate “clearly established rights” or “transgress bright lines” at least in theory. Thus, when “qualified immunity” is raised as a defense by public employees, courts are tasked with probing facts: Did the actor violate clearly established rights such that immunity should be denied? Or were the actions closer to guesses, or on-the-spot judgement calls, in unfamiliar circumstances where the law is not clear—“gray areas”—such that immunity should apply?
As it happens, 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 (gray areas) and also where judgement calls mean life or death.
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.
A notable exception recently came out of Iowa, however, in the case Business Leaders In Christ v. the University of Iowa, et. al. The court there denied qualified immunity to University officials who discriminated against a Christian student group at the business school since the case law on the free exercise of religion is so clear and undisputed. The opinion means that the officials named as defendants can now actually be found personally liable for their constitutional violations, a potentially powerful deterrent to this type of misconduct (though insurance-like indemnity arrangements may still protect more senior administrators).
But the defense of qualified immunity for university employees raises other issues, not addressed by the court’s opinion, as good as it is: First, immunity seems completely misplaced when used by school administrators carrying out “official acts” for the simple reason that those same acts are carried out also by school administrators in the private sector, who enjoy no such protection. Allowing state university employees to claim “qualified immunity” in effect protects public employees more than private ones—that is, it allows public employees to escape responsibility and misbehave more than private actors, even though the reverse is usually expected: We typically demand higherstandards of behavior from those in the public sector, who represent public values and are, theoretically, answerable to the public. But current immunity doctrine means their bar is lower.
Second but related, employees at public universities not only have no incentive to behave, they have every incentive to misbehave. After all, the consequences will be paid by the Commonwealth and never by them. This is not just a double standard; it’s what’s called “moral hazard” which not only invites misconduct but, in this context, basically guarantees it.
At present, this misconduct takes the form of staff using public schools and universities to impose ideologies that the public would never support if asked. (The recent protests by parents against schools pushing “Critical Race Theory” (“CRT”) on their kids, including in Loudoun County, is an excellent example of this. In a worrisome, ideological fashion, school officials have now even targetedand intimidated mothers who have spoken out.) But that’s the point: School officials neither ask nor answer for their grand plans of social change, creating microaggressions here, banning religious evangelization there. If a court finds these actions illegal, so what? They’ll just try again next year.
Obviously, this win-win proposition for university officials must stop. Financial incentives need to promote responsibility, and the public interest, not the opposite. Where to start?
No magic wand can fix this overnight, of course. Legal doctrines such as qualified immunity will change slowly, if at all, and a program to counter woke ideology among the staff in our schools and teacher colleges will also take time.
That said, public officials in Virginia and other states need to know that the immunity defense is being misapplied to employees of state universities at the expense of citizens who were never consulted about their ideological goals; and these same citizens also never consented to pay their defense. Let school officials defend themselves. Deny them immunity.
What’s more, policy makers can actually make state schools pay by reducing state appropriations for the institution in the amount of both legal expenses and any judgment.
Such policies must still allow schools and their employees to get sued; this is an important check on both the institution and the individual. But the stakes would be higher for them because school officials could be found personally liable and institutions would pay the price through reduced appropriations. How else to restrain uncontrolled administrators and their ideologies run amok?
It’s no elixir but it’s a start—make them pay and things will change.
Teresa Manning is Policy Director at the National Association of Scholars.