As the nation grapples with yet another abuse of Black citizens by law enforcement, significant attention has been paid to the judge-made doctrine qualified immunity over the last 14 months.It has been all about how qualified immunity protects law enforcers who abuse civilians on the streets or in their neighborhoods. As reform debate continues, it is important that we remember that qualified immunity does not only apply to police-civilian interactions. Two recent decisions of the 5th U.S. Circuit Court of Appealsthe federal appeals court covering Texas, Louisiana and Mississippi, has shown that the doctrine can also cause havoc in schools.AdvertisementThe 5th Circuit published in June two opinions that allowed public school employees to abuse students without fear under federal civil rights law. The 5th Circuit is very restrictive in students rights and, because of the doctrine qualified immunity, there is little reason for the court to change its jurisprudence.AdvertisementAdvertisementSubscribe to the Slatest Newsletter Get a daily email update with the latest stories. Signing you up was not possible due to an error Please try again. To use this form, please enable jаvascript. Email address: I would like to receive updates on Slate special offers. You agree to our Privacy Policy & Terms by signing up. Thank you for signing up! You can cancel your subscription at any time.T.O. T.O. Six days later, J.W. Six days later, in J.W.AdvertisementBoth students filed claims under the Fourth Amendment. This protects civilians against unreasonable seizures and excessive force by government agents. Fourth Amendment claims for excessive force are most common in law enforcement situations where police detain or beat someone. This amendment is applicable to all state actors, not just police officers, and should therefore be applied to public school employees. The Fifth Circuit, however, has not ruled that students are entitled to a Fourth Amendment right to avoid excessive force in schools.T.O. T.O. Qualified immunity was the reason they lost their Fourth Amendment rights. This requires that a constitutional right must be clearly established before any state actor can be held responsible for violating it. The Fourth Amendment does not protect students from physical abuse. Courts did not decide whether the teacher who choked T.O. was protected. The teacher who choked T.O. and the school resource officer that tased J.W. They could not be held responsible, no matter how unreasonable they were.AdvertisementT.O.'s Qualified Immunity implications are not over. J.W. Both J.W. and J.W. lost their cases. Qualified immunity allows the court to dismiss a case on the basis that a right has not been established. Practically, it is unclear whether students have a Fourth Amendment rights to be free from excessive force at school. The court can continue to dismiss these types cases on qualified immunity grounds, but without clarifying the right.These cases have led to the conclusion that students in Texas and Mississippi don't have an enforceable constitutional right not to be subjected to physical violence by school staff.AdvertisementChildren are at risk of significant abuse because of the indefensible legal system. Texas and Mississippi are home to a large number of corporal punishment cases. Black boys are twice as likely to be punished corporally than white boys, and Black girls three times more likely than white girls.This is also absurd given the high police presence in schools, especially those with Latinx and Black populations. J.W. was actually tased by an employee. The employee who tased J.W. was actually a school resource officer. This is a title that police officers are given to work in schools.The national emergency caused by police brutality towards Black people requires reform at all levels. This includes ending qualified immunity. The doctrine must be abolished to ensure that schools can continue to fulfill their promise of safe learning environments and healthy thriving.
