WASHINGTON (CN) — Supreme Court Justice Clarence Thomas used a college campus First Amendment case to sound off Friday about jurisprudence that affords school officials the same immunity given to police officers.
"But why should university officers, 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?" Thomas wrote. "We have never offered a satisfactory explanation to this question."
The grievance from Thomas came as the Supreme Court slammed the door on Ashlyn Hoggard's bid for civil damages from Arkansas State University officials. Back in the fall of 2017, Hoggard set up a table to recruit students in starting a chapter of the conservative group Turning Point USA. School officials claimed that such activities could only occur on campus free-speech zones, but the zone could only be used through a reservation system, and Hoggard was deemed ineligible since the group she wanted to start didn't yet exist.
Last year, the Eighth Circuit agreed that this policy violated Hoggard's rights, but it also found that the school officials were entitled to qualified immunity.
As Thomas explained Friday, quoting 2015 precedent, "executive officers who violate federal law are immune from money damages suits brought under Rev. Stat. §1979, 42 U. S. C. §1983, unless their conduct violates a 'clearly established statutory or constitutional righ[t] of which a reasonable person would have known.'”
Asserting that this "jurisprudence stands on shaky ground," however, Thomas noted that the test for it does not appear either in Section 1983 or perhaps in history.
"It may be that the police officer would receive more protection than a university official at common law," Thomas wrote. "Or maybe the opposite is true. Whatever the history establishes, we at least ought to consider it. Instead, we have 'substitute[d] our own policy preferences for the mandates of Congress' by conjuring up blanket immunity and then failed to justify our enacted policy.
"The parties did not raise or brief these specific issues below. But in an appropriate case, we should reconsider either our one-size-fits-all test or the judicial doctrine of qualified immunity more generally," the opinion concludes.
Hoggard is represented by Alliance Defending Freedom. Kellogg Hansen attorney David Frederick represents Ron Rhodes and fellow defendant officials from ASU.
"We're pleased that the court recognized that this case was unworthy of review," Frederick said in an email.
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