Amicus Brief: Felkner v. Nazarian

Bill Felkner enrolled in the graduate program of social work at Rhode Island College (RIC), a public university, and immediately began experiencing harassment and discrimination for his conservative political views. The faculty acknowledged that they had progressive perspectives, and that RIC was supposedly a “perspective” school, meaning that they only taught only the progressive perspective on social issues. Felkner’s academic advancement was repeatedly stymied and he was eventually dismissed from the program. Felkner sued, alleging First Amendment violations. The trial court initially dismissed his claims, but the state supreme court reversed, saying that there were sufficient disputed facts creating issues for trial. On remand, the trial court dismissed the case based on the doctrine of qualified immunity (QI), the idea that public officials are not liable for constitutional violations when the law is not “clearly established.”

Felkner raised several arguments on appeal back to the Rhode Island Supreme Court, including that his rights were indeed clearly established. He also argued that QI should not apply because, unlike police officers who make life-or-death decisions in a split second, these defendants had years in which to decide to apply their unwritten policies. He also argued that QI shouldn’t apply because the defendants were protected by a $4 million insurance policy, as well as a state statute providing indemnification. In other words, giving the defendants QI was the functional equivalent of giving it to an insurance company and the state, neither of which are entitled to it under longstanding precedent. Nonetheless, the court affirmed the grant of QI.

Felkner has now petitioned the U.S. Supreme Court to take his cases, raising two issues relating to QI and one on the First Amendment. The Manhattan Institute joined the Americans for Prosperity Foundation and Mountain States Legal Foundation on an amicus brief that makes two points: (1) qualified immunity should not shield constitutional infringement in First Amendment cases, and (2) claims of free-speech infringement on campus are so common that qualified immunity should almost never apply to them.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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