Friday, March 23, 2007

Morse v. Frederick and Qulified Immunity

A commenter to my earlier post on the Morse case makes a good point about the importance of qualified immunity to case's resolution. The second issue under consideration is:

Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. § 1983 when, pursuant to the school district’s policy against displaying messages promoting illegal substances, she disciplined a student for displaying a large banner with a slang marijuana reference at a
school-sponsored, faculty supervised event.

After finding a constitutional violation, the Ninth Circuit held that the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful. Although Morse argues that her actions did not violate Frederick's constitutional rights, even if she did violate Frederick’s rights, Morse asserts that it is unfair to deny an official qualified immunity when courts and officials reasonably disagree on whether a constitutional violation occurred. At base, a public official is entitled to qualified immunity “If officers of reasonable competence could disagree on the lawfulness of the conduct. . . ."

As I stated in the post below, I believe that Morse did violate Frederick's constitutional rights. But, is it possible that officers of reasonable competence would disagree on the lawfulness of Morse's conduct--maybe. This is a much more difficult issue. SCOTUS will likely find a constitutional violation but grant qualified immunity.

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