Thankfully, there is a way to speed up this process. It’s called “piercing qualified immunity,” and it’s what FIRE’s letter to public university administrators is mainly about. Qualified immunity is a legal doctrine that protects government officials from personal liability for monetary damages for violating constitutional rights if their actions do not violate “clearly established law” of which a reasonable person in their position would have known. And it’s more clearly established than ever, especially in light of a recent decision from the Third Circuit in McCauley v. University of the Virgin Islands, that campus speech codes that ban speech for being “offensive,” for example, are not legal.
Nevertheless, courts are pretty generous about granting qualified immunity, even when universities do something clearly insane — like punishing a student for quietly reading a book. Most people don’t even consider trying to get administrative malefactors to pay out of their own pockets for their blatant censorship.
But this is changing. This year, for the first time in FIRE’s memory, a (former) university president has been held personally liable for violating the constitutional rights of a student.