Government officials performing their duties enjoy a shield known as immunity. Immunity shields officials in court cases involving civil claims for damages. When the claims asserted by plaintiffs involve constitutional rights the rule of law accepts the defense of immunity so long as the government official did not violate clearly established laws. Claims arising out of common law torts, contracts and property law encounter forms of immunity just as for constitutional claims for the reason that, “immunities have roots in the doc- trine of sovereign immunity.”1 In other words, state and local governments often cannot be sued without permission.2
Today, when scholars speak of immunity, it is said that, “immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to … accountability efforts.”3 Legislators seeking to reform immunity are motivated by the desire,“[t]o hold liable officers who repeatedly abuse their power and who rarely, if ever, face consequences for their repeat abuses.”4 In communities, where the impact of official misconduct is keenly felt, discussions on immunity focus on “repair[ing] some of the damage done,”5 not just in understanding the concept, but in revising it into a more reliable method of redressing legitimate claims.
The concerns surrounding immunity also arise in student claims against public schools. Unfortunately, immunity in education law suffers from many misconceptions, not least the falsehood that it is synonymous with in loco parentis,6 or the opposite extreme that qualified immunity does not apply to student claims that challenge public school policies and actions.7 The truth is that qualified immunity, “is not only alive but as strong, if not stronger, for school employees than for school dis- tricts.”8 This statement, from a 2010 empirical study of immunity concludes that, “as applied to schools, qualified immunity appears to reflect the bewildering absence of a pattern.”9 A recent spate of cases support this statement.
In Price as next friend of J.K. v. Mueller- Owens, the United States District Court ruled that a school staff member is not entitled to qualified immunity for the use of excessive force against a student.10 In denying the motion to dismiss a lawsuit brought by parents of the student who was forcibly removed from the classroom, the court held that “[i]t is well established that a school administrator or teacher cannot use excessive force against a student.”11 The court noted that “although the undisputed facts show that defendant's initial decision to seize plaintiff and remove her from the classroom was reason- able,… [the student’s] allegations of punching, hitting and slamming her to the ground create a genuine issue of material fact.”12
In Meyers v. Cincinnati Bd. of Education, the United States Court of Appeals ruled that reckless conduct by an elementary school principal and assistant principal eliminated governmental immunity from claims by parents of a third-grade student who committed suicide after several violent incidents at school. 13 The court ruled that immunity under state law was not avail- able for schools that fail to report child abuse, fail to inform parents about prior threats, fail to discipline the student assailants, and fail to call 911 after a serious assault.
In Kemp v. McReynolds, the Missouri Court of Appeals refused to grant immunity to school teachers and nurses in a lawsuit brought by parents of a special needs child who died as a result of obstruction of her tracheostomy. 14 The court ruled that official immunity would not protect the school officials from liability arising from their failure to comply with the directives set forth in student's individualized education program. The court ruled that the malpractice was not protected under the Paul D. Coverdell Teacher Protection Act of 2001 because it was not properly included on the face of the educators’ petition to support their motion to dismiss.
In L.G. through M.G. v. Columbia Pub. Schools, the United States Court of Appeals held that a school resource officer did not violate the Fourth Amendment when the officer summoned a student to the office to be interrogated by outside police about a non-school incident.15 Reversing the trial court ruling that the school re- source officer was not entitled to qualified immunity, the appellate court ruled that the nominal role of the SRO in the incident did not satisfy the elements of an illegal seizure. The SRO did not question the student, but merely escorted the student to a room and closed a door. Therefore, qualified immunity was appropriate.
The Basics of Immunity
Immunity in public education is easier to evaluate when examined as a subset of sovereign immunity. In American juris prudence, the principles of sovereign immunity relate to English Common Law, its Latin mantra, maxim rex non potest peccare, ("the King can do no wrong"), and go as far back as the Roman Empire and medieval regimes. Sovereign immunity in U.S. law appears in federal and state statutes and constitutional provisions, varying as to scope and requirements. When success- fully applied, it defeats a civil suit, so long as the official's actions are within the scope of the immunity.
For example, legislators enjoy a form of absolute immunity,“[i]n order to enable and encourage a [legislator] to dis- charge his public trust…it is indispensably necessary…that he should be pro- tected.”16 One state court puts it this way: “a legislator's immunity from suit when performing his or her legislative du- ties prevents the courts from making the Legislature justify its decision[s].”17 Similarly, “in initiating a prosecution and in presenting the State's case, the prosecutor is [absolutely] immune from a civil suit for damages,”18 because, “liability would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system.”19 Judicial absolute immunity is supported by the same reasoning, e.g., “that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability.”20 The common thread in absolute immunity is its generous scope, “even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.”21 Its breadth is explained directly by the goal to protect core functions of government in light of the other reliable forms of accountability for misconduct, e.g., criminal prosecutions, impeachment, and electoral recall.
“Qualified” immunity is woven by a thinner thread, shielding officials from civil damages based upon the circumstances of their actions as established by the evidence presented in court. It is only available, “in so far as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”22 In education law, absolute immunity does not apply. In terms directly applicable to the school environment, a school official “is not immune from liability for damages…if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.”23
Qualified Immunity in Schools
The judicial opinions summarized below suggest a pattern for understanding qualified immunity in the school setting. What is important is that schools face increasingly more rigorous judicial review in student injury cases, indicating a shift away from early dismissals based on qualified immunity and in favor well-pled complaints by students injured as a result of school policies and conduct. Assertions of immunity are effectively countered when a student pleads that the school had actual knowledge of prior facts and that its response, or lack thereof, was clearly unreasonable in light of known circumstances. Qualified immunity will function as intended to defeat student claims when the conduct of school officials falls within the zone of protection provided by immunity laws or when the conduct of school officials is attenuated from the harm that caused the student injury in the first place.
In L.G. through M.G. v. Columbia Public Schools,24 a high school student sued everybody connected with her experience of being taken out of class and interrogated by police officers in connection with crimes unrelated to school. The school re- source officer, whose role in the incident was simply bringing L.G. from class to the room where the interrogating officers were waiting, asserted qualified immunity. The appellate court analyzed the immunity issue around two related questions, (1) “whether the official's conduct violated a constitutional or statutory right, and (2) whether that right was clearly established.”25 The court, chose to take up the second question, noting that previous court decisions did not, “provide much guidance,”26 on the issue. Indeed, because of the paucity of cases to guide its search for clearly established rules concerning officers escorting students to an interview, the court determined that, “an officer in [the SRO’s] situation would not know, without more guidance, whether her escorting L.G. to a room with other officers and closing a door constitutes a seizure… [b]y merely escorting a student to a room containing two officers and closing the interrogation- room door, it's hard to imagine that [the SRO] was transgressing a bright line as op- posed, at most, to making a bad guess in a gray area.”27 Perhaps [the SRO] should have acted differently, but we cannot say that no reasonable officer would have done the same thing in the circumstances.”28 In granting the motion for dismissal based on qualified immunity, the court concludes, “we do not think the law clearly established that [the SRO’s] relatively minimal actions in a school setting amounted to an unreasonable seizure of L.G.”29
In Kemp v. McReynolds,30 a five-year-old special needs student died as a result of lack of oxygen to her brain. Due to the combination of her cognitive special needs and her physical limitations, the student’s Individualized Education Program (IEP) included details of both her medical condition with orders from her doctors for tracheostomy care as well as curricular accommodations. The school staff failed to follow the medical requirements and the doctor's orders to catastrophic effect. One day, the student collapsed on the play- ground and died a few days later. The court described the attempts of the educators to invoke qualified immunity as inappropriate. First, the court notes that, “[t]he doctrine of official immunity protects a public official from liability if that official acts: (1) within the course of his official duties, and (2) without malice.”31 Then the court de- scribed judicial review in school cases and the narrow focus of qualified immunity.
Public officials are protected from liability for their performance of these sorts of discretionary acts to enable them to make judgments affecting the public safety and welfare without the fear of personal liability…However, a narrow exception to official immunity exists such that when a public officer fails to perform a ministerial duty required by law, he or she may be personally liable for the ensuing damages.32
The court in Kemp, found that the school was required by federal and state law to comply with all directives set forth in student's individualized education pro- gram (IEP), which specifically “required 911 to be called immediately if student was struggling to breathe.”33 Therefore, the court ruled that, the lawsuit was “sufficient to survive a motion to dismiss,”34 rejecting immunity because it appeared that school officials, “breached a ministerial duty and therefore fall within the ministerial act exception to official immunity.”35
In Price as next friend of J.K. v. Mueller- Owens,36 a middle school student was involved in an altercation at school with a school staff member. The student, who was forcibly removed from the classroom for misconduct, accused the educator of pulling her hair, pushing, punching and throwing her out of the classroom. The court noted the fact-based elements in the student’s complaint, holding that, “al- though the undisputed facts show that defendant's initial decision to seize plaintiff and remove her from the classroom was reasonable,… [the student’s] allegations of punching, hitting and slamming her to the ground create a genuine issue of material fact.”37 In reaching this conclusion, the court rejected the immunity defense of the school official.
The Price court explained that, “[t]he defense of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”38
“Clearly established,” as used in rule that the defense of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reason- able person would have known, means that the existing precedent placed the statutory or constitutional question beyond debate.”39
Even so, the court held that immunity the state statute did not immunize, “the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing re- mains for judgment or discretion.”40 The student’ allegations, “suggest that [the staff member] used force that no reason- able school official would think was justifiable or constitutional in a school setting.” On this basis, the immunity defense failed. “[I]t was well established, concluded the Price court, “that a school administrator or teacher could not use excessive force against a student41…. [a]ccordingly, defendant is not entitled to qualified immunity.”42
In Meyers v. Cincinnati Bd. of Education,43 a third-grade student committed suicide which his parents attributed to the effects of experiencing a multitude of incidents of violence at school, beginning in first grade until the third grade. Many of the incidents were known to the parents. Other incidents were discovered after the death of the student. Taken together, the parents lawsuit alleged, reckless, wanton disregard for campus safety and a willingness to coverup the violence at the school. The school officials moved to dismiss the law- suit of the parents, asserting governmental immunity. The court ruled that the state governmental immunity statute, “provides immunity to public school officials from damages for injury, death, or loss to per- son or property allegedly caused by any act or omission in connection with a governmental or proprietary function.”44
The provisions of the law denied immunity for conduct by school officials that is, “manifestly outside the scope of the employee's employment or official responsi-bilities,”45 or conducted, “with [a] malicious purpose, in bad faith, or in a wanton or reckless manner.”46
The court, in reliance on the state statute, rejected qualified immunity defense and ruled that the parent’s lawsuit should go forward. In its rationale, the court noted that the educators, “knew the full extent to which [the deceased student] was subjected to aggression and violence by his classmates,”47 including video records of incidents. This pattern of con- duct showed, “conscious disregard of or indifference to a known or obvious risk of harm,”48 that was, “unreasonable under the circumstances”49 because no steps were taken to protect students from harm. The Court found the behavior of the educators to be reckless within the meaning of state statute, thus barring them from the shield of government immunity.
The Changing Face of Immunity in School Safety Law
The message from the courts points to a presumption against granting motions to dismiss student claims based on immunity when the complaints allege a causal link between school policies, official misconduct and student victimization. This pattern is evident in other cases. Tennessee courts hold schools liable for failure to implement its own school policies to prevent ongoing violence and harassment of which it has knowledge.50 Florida courts impose “an explicit duty of school boards and teachers to supervise the activity of students under their care and control.”51 What is important is that schools are not immune when they fail to follow their own policies in light of the knowledge of unsafe conditions on cam- pus.52 Immunity will not cover decisions that are unreasonable in light of what the educators know.53
This modest shift in presumptions allows student claims to survive the early onslaught of immunity motions. Even so, it does not necessarily result in an easier path to success for victimized students. Indeed, its primary benefit will be to assure parents a full discovery to document the facts and circumstances surrounding an incident. Of course, this is not welcome news for schools for the reason that liability is found in the details of the day-to-day administration of school policies. In other words, fuller discovery of student claims shed considerable additional light on pat- terns of school administration that can be put to good use in the primary case and in subsequent cases that rely on this documentation in similarly situated future cases. This represents an important constraint on misconduct and tool of ac- countability.
It is important to note that this shift is also evident in statutory reform of governmental immunity. These reforms are placing limits on the ability of schools to invoke immunity when circumstances suggest unreasonable policies or poor implementation of mandates for the protection of students. In Colorado, the Claire Davis School Safety Act54 permits victims to sue districts for liability if they fail to ensure the safety of students and staff on school property or at district-sponsored events.55 Utah reform declares an affirmative duty based on the special relationship between a school district and a child attending one of its schools and waives governmental immunity “as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment.”56 Ohio waives sovereign immunity when schools both fail to act and report their knowledge of student victimization.57 Ohio law imposes “a special responsibility to protect those children committed to their care and control [such that] a school board has an obligation to deal with an instrumentality of harm to one of its students at school for the benefit of all of its students.”58