Small Steps in Piercing the Government Veil

Government bureaucrats enjoy many benefits at taxpayer expense. One of those benefits is qualified immunity (or executive immunity), which exempts them from civil lawsuits for misdeeds on the job.

Think of qualified immunity as serving as a protective veil for bureaucrats. It empowers government officials to engage in unethical behavior they otherwise would not. That’s because the privilege of qualified immunity protects them from the cost of defending their individual misconduct. Piercing the government veil by allowing victims to directly sue these perpetrators for their on-the-job misdeeds can be a powerful tool for government accountability.

Two stories involving small steps toward piercing the government veil made the news last week. In the first story, the government of New York City ended qualified immunity for police officers. In taking that action, it became the first city in the U.S. to do so. This is a small step that should be expanded to include all New York City government officials.

The second story involves the University of Iowa, a public university. Here, three university officials were found to have discriminated against a campus group because of its religious affiliation. In their intentional discrimination, they violated the group members’ rights under the Constitution.

In ruling against the university officials, who are state government employees, the Eighth Circuit Court of Appeals made no bones about what they viewed as the officials’ unconstitutional conduct in the case. They also stripped the university officials of any privilege to claim qualified immunity for their actions:

The purpose of qualified immunity is to shield good-faith actors who make mistaken judgments about unresolved issues of law, and it protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation omitted). But we do not need the benefit of hindsight to know that the individual defendants’ choices were prohibited by the Constitution. They had more than “fair warning” that their conduct was unconstitutional. Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citation omitted). In fact, they knew it was. See Maj. Op. 24.

The law is clear: state organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

The Appeals Court sent the case back to the lower court. The next step of the legal process will set the cost of damages the three university employees must pay their victims. Better still, that money must come out of their own pockets. Taxpayers shall be free from paying for these bureaucrats’ bigoted misconduct.

But would this case have ever existed in the first place if not for the doctrine of qualified immunity? If the answer to that question is no, shouldn’t the bureaucrats’ privilege of qualified immunity be permanently pierced?

Craig Eyermann is a Research Fellow at the Independent Institute.
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