Qualified immunity, also known as “good faith” immunity, is an affirmative defense that protects government officials from liability for civil monetary damages as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”Harlow v. Fitzgerald, 457 U.S. 800, 818 (U.S. 1982). Accordingly, the applicability of qualified immunity is determined by a two prong test: (1) whether there was a violation of a constitutional right; and (2) whether the right in question was clearly established at the time of the alleged violation. If either of these prongs is not established, a government official is immune to civil monetary damages. Importantly, qualified immunity does not protect against injunctive relief, so government officials with qualified immunity can still be ordered by a court to stop all constitutional violations.
As a threshold matter, the only persons entitled to claim qualified immunity are government officials performing discretionary functions and acting in an official capacity. An official is performing discretionary functions when they are (1) performing a legitimate job related function, (2) through means that were within his power to utilize. Within an educational context, almost all discretionary actions of school officials will be entitled to qualified immunity, as long as those actions do not exceed an official’s power and are related to legitimate educational goals. School principals, teachers, and administrators are generally held to be able to claim qualified immunity when performing discretionary functions.
Once it is determined that a government official is entitled to the presumption of qualified immunity, the burden is shifted to the plaintiff to negate this presumption. Qualified immunity is defeated if “an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.” Harlow v.
Fitzgerald,457 U.S. 800, 815 (U.S. 1982).
When determining if a constitutional right was clearly established at the time of the alleged violation, the question is whether “the state of the law [at the time of the events in question] gave respondents fair warning that their alleged treatment of [the plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
The uncertainty of student free speech rights in the area of cyberbullying and electronic student speech almost assures the application of qualified immunity for school officials who punish cyberbullying activities occurring off-campus. Some federal courts agree, stating that “[i]f courts and legal scholars cannot discern the contours of First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators. . . to predict where the line between on-and off-campus speech will be drawn in this new digital era.” Doninger v. Niehoff, 594 F.Supp.2d 211, 224 (D.Conn.2009). However, other federal courts disagree, holding that qualified immunity is inapplicable if off-campus speech would not merit punishment had it occurred on-campus, as school officials should reasonably know that such speech is protected and any punishment would violate the First Amendment rights of the student. See Evans v. Bayer, 2010 WL 521119 (S.D.Fla. 2010).
Qualified immunity will apply to a lesser extent, if at all, to punishment of on-campus cyberbullying, as the standards applicable to on-campus student speech are well established and publicly available. Under the Harlow standard, it seems that school officials should reasonably know the constitutional rights of on-campus student speakers, and violations of those rights would not be shielded by qualified immunity. However, if the punishment of on-campus cyberbullying is validly pursued under established standards for restricting student speech, then there would be no constitutional violation. In such a situation, qualified immunity would apply in full force.
Sources:
- Harlow v. Fitzgerald, 457 U.S. 800, 818 (U.S. 1982).
- Hope v. Pelzer, 536 U.S. 730, 741 (2002).
- Doninger v. Niehoff, 94 F.Supp.2d 211, 224 (D.Conn.2009).
- Evans v. Bayer, 2010 WL 521119 (S.D.Fla. 2010).
