Published Online: March 27, 2008
Published in Print: March 27, 2008, as Supreme Court to Weigh Case on Official Immunity

Law & Courts

Supreme Court to Weigh Case on Official Immunity

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The law surrounding the principle of “qualified immunity” gets complex pretty quickly. But for public school teachers and administrators, such immunity can often save them from exposure to damages in lawsuits and many hours in court.

The U.S. Supreme Court agreed this week to reconsider one of its important precedents on qualified immunity, which protects public officials such as educators and police officers from liability when their challenged actions did not violate clearly established law.

The immunity issue was an important part of last year’s famous “Bong Hits 4 Jesus” case, in which a student who had displayed a banner with that slogan challenged the discipline meted out by his high school principal. A lower federal court had ruled that the principal was not entitled to qualified immunity from a suit for damages because the student’s right to display the banner was so clearly established that the principal should have known she could not discipline him.

In Morse v. Frederick, the Supreme Court was effectively unanimous in overturning the lower court and ruling that the principal deserved qualified immunity. The justices were less unanimous on whether the “Bong Hits” banner merited First Amendment protection, ruling 5-4 that it did not.


In a concurring opinion, Justice Stephen G. Breyer said the Morse case could easily have been decided on qualified-immunity grounds alone if not for a 2001 high court decision on immunity known as Saucier v. Katz.

In that opinion, Justice Anthony M. Kennedy said that lower courts weighing civil rights cases must first decide whether there is a constitutional violation, and then proceed to decide whether the public official is entitled to qualified immunity. The theory is that if cases were often decided on immunity grounds alone, the courts would never resolve many constitutional questions.

But the Saucier decision has been widely criticized in the lower federal courts, and in his Morse concurrence, Justice Breyer called it “a failed experiment.”

His view may have had an influence on his fellow justices.

On March 24, the court announced it would review a case involving a police search in which the officers’ immunity was at issue. In accepting the appeal in Pearson v. Callahan (Case No. 07-751), the justices asked the parties to also address the question of whether Saucier v. Katz should be overruled.

Vol. 27, Issue 31, Page 12

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