In case after case, administrators at public colleges and universities have maliciously gone after students or faculty members for having expressed opinions deemed wrong (“racist,” “unacceptable,” etc.). It’s pure leftist virtue signaling — “Watch how I slam down these backward thinking deplorables!” But if the person who felt the lash happens to sue, he often wins. The Constitution doesn’t allow government to decide what speech is appropriate and what merits punishment.
Then what? Then the plaintiff collects damages and the money comes from the state — not the responsible officials.
That’s the problem Teresa Manning of the National Association of Scholars (and former law professor) discusses in this Law & Liberty essay.
She begins with two such cases that have recently arisen in Virginia (one at Virginia Tech, the other at James Madison University): “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?”
Why indeed? The First Amendment law is clear. The conduct of officials who enjoy hurting those on campus who dare express “unwoke” opinions ought to cost them, not the taxpayers. The problem, Manning notes, is the way “qualified immunity” law has been applied, shielding most public employees, from police officers to university bureaucrats, from liability for misconduct. She argues that there is no reason why the law should protect the latter, at least.
The good news is that the Eighth Circuit recently decided a case against higher-education officials, denying them the safe harbor of qualified immunity. Let us hope that good use will be made of that precedent.
Manning concludes, “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.”