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Excerpted From: Sarah Smith, The Problem of Qualified Immunity in K-12 Schools, 74 Arkansas Law Review 805 (2022) (217 Footnotes) (Full Document)

SarahSmithWhen thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter ... naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings--a search which turned up no evidence of drug possession--the assistant principal asked the school nurse and administrative assistant to search Savana's clothes. To do this, the school officials asked Savana “to remove her jacket, socks, and shoes,” followed by her pants and shirt. As if this was not enough, they then told Savana “to pull her bra out to the side and shake it, and to pull out the elastic of her underpants, thus exposing her breasts and pelvic area ....” Ultimately, the school officials did not find any pills after the “embarrassing, frightening, and humiliating” strip search.

In response to the strip search, Savana's mother filed suit against the school, the assistant principal, the administrative assistant, and the school nurse for violating Savana's Fourth Amendment rights. The case made it to the Supreme Court, which found that although the strip search violated Savana's Fourth Amendment rights, qualified immunity protected the school officials from liability because the law surrounding school strip searches was not “sufficiently clear.” This is the most recent Supreme Court case that addresses qualified immunity's application to public school officials.

However, numerous lower courts have also held that qualified immunity protected school officials in cases with other forms of egregious conduct against students. Lower courts' applications of qualified immunity as a shield for school personnel have created a problem for students and their parents who attempt to sue school officials for wrongful conduct but are barred because of the doctrine's broad application. This Comment argues that the Supreme Court should abolish qualified immunity in Section 1983 cases, which enables private individuals to sue government actors for civil rights violations, against public school officials.

The modern-day application of the doctrine, particularly how courts view and apply the “clearly established” prong, allows school officials to escape liability for egregious acts against students. Indeed, courts applying the “clearly established” prong require the facts in a particular case to be strikingly similar, substantially similar, or nearly identical to a previous case that “a reasonable official would understand that what he is doing violates” the constitutional right at issue. If the Supreme Court rejected qualified immunity for public school officials, students would have a greater chance of winning their Section 1983 claims.

In the absence of qualified immunity as an affirmative defense for school officials, courts should evaluate claims against these officials based on the nature of the claimed injury, applying existing standards. First, courts should continue to evaluate claims for Fourth Amendment violations through the New Jersey v. T.L.O. standard for school searches and the Ingraham v. Wright standard for corporal punishment. Second, regarding Fourteenth Amendment violations, courts should continue to use the already burdensome “shocks-the-conscience” test for substantive Due Process violations. Third, concerning First Amendment violations, courts should continue to apply heightened scrutiny, based on the quartet of Supreme Court cases that govern issues implicating student speech rights.

To be clear, practically, these standards already govern a student's Section 1983 claim after it survives the defendant's dispositive motion grounded in qualified immunity. However, this Comment argues that the Supreme Court should reject qualified immunity in these cases because it has been an additional barrier for vindications of students' constitutional rights. Relying on these standards alone, without the interference of the qualified immunity defense, will more effectively balance vindication of student rights with school officials' discretion to control the learning environment. The existing standards also provide adequate notice to school officials about what behaviors are and are not permissible when performing their job duties because they are sufficiently clear to define the contours of the implicated constitutional rights.

This Comment includes four parts. Part II explains the doctrine of qualified immunity and its policy justifications and summarizes other protections for school officials to defend against Section 1983 claims. It then argues that the modern application of qualified immunity is inappropriate in the K-12 public school context because it fails to support the Supreme Court's policy justifications for the doctrine. Part III analyzes the existing legal standards and structures that should continue to inform courts' evaluations of students' claims for constitutional violations against school officials. This Part lays out the T.L.O. standard for Fourth Amendment claims for unreasonable searches, describes the burdensome “shocks-the-conscience” test for Fourteenth Amendment excessive punishment claims, and explains how First Amendment claims for violations of student speech are analyzed under heightened scrutiny. Part IV considers the implications of abolishing qualified immunity for public school officials and relying on the existing legal standards alone to evaluate students' Section 1983 claims.

In conclusion, this Comment suggests that abolishing qualified immunity as a defense for K-12 public school officials will respect the policy justifications of qualified immunity while providing an avenue for more successful student claims asserted against school officials under Section 1983. Allowing traditional legal standards alone to guide students' Section 1983 claims will effectively balance public and private interests by securing greater protections for students' constitutional rights, shielding school officials from financial liability where appropriate, providing adequate notice of the types of conduct that violate constitutional protections, and respecting school officials' discretion to perform their duties as educators.


To fully understand why the modern application of the doctrine of qualified immunity has failed in the K-12 public school context, it is instructive to look at how the doctrine began and how it has evolved in the Supreme Court. This Part traces the Supreme Court's introduction of the doctrine in the public school context, its subsequent transformation to its modern iteration, and scholars' support of the doctrine. It then discusses other protections that are available to public school officials and districts when students bring Section 1983 claims for violations of their constitutional rights. This Part concludes with a discussion of why courts' modern applications of qualified immunity are inappropriate in the K-12 context.

A. Qualified Immunity

The main statutory mechanism for students to vindicate their constitutional rights in claims against teachers is 42 U.S.C. § 1983, which provides that anyone who, “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,” deprives another “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Although written broadly, Section 1983 has its limits, including several immunities for government officials. Courts have traditionally allowed school officials to raise qualified immunity as an affirmative defense against claims of civil rights violations. Qualified immunity is a “judicial construct” created because the Supreme Court determined “that an individual's right to compensation for constitutional violations and the deterrence of unconstitutional conduct should be subordinated to the governmental interest in effective and vigorous execution of governmental policies and programs.”

The Supreme Court first addressed qualified immunity's application to school officials in Wood v. Strickland. In that case, Arkansas high school students brought a Section 1983 action against two school administrators, claiming that the administrators violated their Due Process rights when they expelled the students for possessing and consuming alcohol at an extracurricular meeting in violation of a school regulation. The Court held:

[A] school board member is not immune from liability for damages under § 1983 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.

The Wood Court based this holding on the principle that “the school disciplinary process ... necessarily involves the exercise of discretion ...” and reasoned that denying immunity to school officials “would contribute not to principled and fearless decision-making but to intimidation.”

The Court modified its Wood holding in Harlow v. Fitzgerald, which introduced the modern qualified immunity doctrine. Although Harlow involved presidential aides rather than school officials, it introduced the current qualified immunity defense school officials raise in response to claims of constitutional violations. Justice Powell noted that the Wood holding involved both an objective component and a subjective component but found the subjective component created “substantial costs” in the litigation of whether the government officials acted in good faith in carrying out their duties. In response, the Court articulated a new test for the application of the qualified immunity doctrine: “government officials performing discretionary functions, generally are shielded 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.” The new test wholly eliminated the subjective component articulated in Wood and reworked the objective component to include the “clearly established” language on which courts rely so heavily today.

Anderson v. Creighton further expanded the protection granted to government officials under the qualified immunity doctrine. In that case, an F.B.I. agent conducted a warrantless search of a family while pursuing the suspect of a bank robbery. Justice Scalia explained that “if the test of 'clearly established law’ were to be applied” too generally, “it would bear no relationship to the 'objective legal reasonableness' that is the touchstone of Harlow.” Thus, he clarified that “[t]he contours of the [constitutional] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Under this rule, it is substantially easier for government officials, including public school officials, to avoid liability.

Pearson v. Callahan is another important qualified immunity decision. In that case, “state law enforcement officers ... conducted a warrantless search of [the respondent's] house incident to his arrest for the sale of methamphetamine to an undercover informant ....” The Court overturned its previous ruling in Saucier v. Katz which required courts first to determine “whether 'the facts alleged show the officer's conduct violated a constitutional right”’ and then to decide “whether the right was clearly established.” The Court in Pearson held that “[t]he judges of the district courts and courts of appeals should be permitted to exercise their sound discretion in deciding which [one] of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Following this decision, many courts have failed to reach the first prong (i.e., “whether the conduct violated a constitutional right”) and have focused solely on the “clearly established” prong of qualified immunity.

As discussed in Part I, the most recent Supreme Court case applying qualified immunity to school officials is Safford Unified School District No. 1 v. Redding. The Court held that a school principal was entitled to qualified immunity after he strip searched a thirteen-year-old girl because he suspected her of bringing prescription-strength ibuprofen and over-the-counter naproxen to school. While the Court did not spend much of its opinion discussing qualified immunity, it found that even though the principal's search of the student's bra and underwear was unreasonable, the law surrounding school strip searches was unclear. Therefore, the principal was not expected to know that his conduct would violate the student's Fourth Amendment right to be free from unreasonable searches. This decision renewed the debate over the legality of strip searches in schools and whether qualified immunity should protect public school administrators and teachers in these situations.

The Supreme Court has articulated several policy justifications for its creation of and reliance on the qualified immunity doctrine. In Pearson, the Court stated that qualified immunity was necessary to balance “the need to hold public officials accountable when they exercise power irresponsibly and need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” The Supreme Court in Harlow also pointed to the doctrine's protection against (1) “the expenses of litigation,” (2) “the diversion of official energy from pressing public issues,” (3) “the deterrence of able citizens from acceptance of public office,” and (4) “the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties”’ as important policy justifications for the doctrine. In United States v. Lanier, the Court explained that “qualified immunity seeks to ensure that defendants 'reasonably can anticipate when their conduct may give rise to liability,”’ meaning that public officials need to have “fair warning” that their conduct would violate an individual's constitutional rights to be held liable for their actions. A more recent justification for the doctrine is to reduce the “burdens associated with discovery and trial” for public officials. In the public school setting, the Supreme Court has placed heavy emphasis on qualified immunity's protection of school officials' discretion in disciplining and protecting students.

[. . .]

Abolishing qualified immunity will provide more protections for students' constitutional rights while still preserving the policy justifications that qualified immunity was designed to serve. Recognizing that existing legal standards clarify what conduct is permissible and what is impermissible for school officials in performing their job duties will effectively balance the need “to hold [school] officials accountable when they exercise power irresponsibly” with the protection of school personnel from “harassment, distraction, and liability.” Further, the existing legal standards that put school officials on notice of what they can and cannot do when performing their duties as educators continue to provide school personnel with discretion in controlling the learning environment. Overall, abolishing qualified immunity in the K-12 public school context will enable more successful student Section 1983 claims while continuing to permit school officials to perform their job duties without fear of financial liability.

[. . .]

The Supreme Court should abolish qualified immunity in favor of relying on existing legal standards when analyzing Section 1983 claims against school officials for violating students' constitutional rights. The modern application of the doctrine fails to protect students from constitutional violations because it requires too strict a reliance on cases with substantially similar facts. The T.L.O. standard for Fourth Amendment claims, the “shocks-the-conscience” standard for Fourteenth Amendment claims, and the Tinker standard for First Amendment claims more effectively balance students' interests and the need for adequate notice about what constitutes unlawful conduct. These tests will also preserve discretion for school officials to perform their job duties effectively. Further, eliminating qualified immunity in cases against school officials would not leave them entirely unprotected from students' Section 1983 claims.

Qualified immunity is not only a problem in K-12 schools. For years, scholars have noted the serious problems the doctrine poses, especially in excessive force claims asserted against law enforcement. After the tragic death of George Floyd in May 2020 while in police custody, many critics renewed the call for a repeal of qualified immunity, especially in the law enforcement context. The U.S. House of Representatives even passed a bill entitled the George Floyd Justice in Policing Act of 2021, which would amend Section 1983 to state that qualified immunity can no longer be a defense for law enforcement officers. However, not everyone is on board with the idea of abolishing qualified immunity. Considering the Supreme Court's reluctance to address the issue for police officers, it may be a while before there is any further progress in the movement to abolish the doctrine.

The next time the Court addresses the issue, however, it may be more feasible to start in the K-12 public school context than in the law enforcement context. School officials are not often faced with situations in which they must make life or death decisions as law enforcement officers are. Abolishing qualified immunity for K-12 school officials could be a starting point for the Court to see how public officials may react to not having the affirmative defense of qualified immunity in their back pockets when making decisions within the scope of their employment.

Ultimately, regardless of how abolishing qualified immunity in the K-12 context may affect other public actors, the Supreme Court must take a hard look at how the doctrine protects egregious conduct by school officials and prevents students from bringing successful Section 1983 claims. Students do not and should not “shed their constitutional rights ... at the schoolhouse gate.” Courts' modern applications of qualified immunity in K-12 school cases dilute this sentiment and leave students and their families without a legal remedy in the face of more and more violations of their constitutional rights.

J.D. Candidate, University of Arkansas School of Law, 2022. Articles Editor for the Arkansas Law Review, 2021-2022.

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