Hoggard v. Rhodes

Cite as: 594 U. S. ____ (2021) 1
Statement of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
ASHLYN HOGGARD v. RON RHODES, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 20–1066. Decided July 2, 2021
The petition for a writ of certiorari is denied.
Statement of JUSTICE THOMAS respecting the denial of
certiorari.
As I have noted before, our qualified immunity jurispru-
dence stands on shaky ground. Ziglar v. Abbasi, 582 U. S.
___, ___ (2017) (opinion concurring in part and concurring
in judgment); Baxter v. Bracey, 590 U. S. ___ (2020) (opinion
dissenting from denial of certiorari). Under this Court’s
precedent, executive officers who violate federal law are im-
mune from money damages suits brought under Rev. Stat.
§1979, 42 U. S. C. §1983, unless their conduct violates a
“clearly established statutory or constitutional righ[t] of
which a reasonable person would have known.” Mullenix v.
Luna, 577 U. S. 7, 11 (2015) (per curiam) (internal quota-
tion marks omitted). But this test cannot be located in
§1983’s text and may have little basis in history. Baxter,
590 U. S., at ___, ___ (slip op., at 2, 4) (opinion of THOMAS,
J.).
Aside from these problems, the one-size-fits-all doctrine
is also an odd fit for many cases because the same test ap-
plies to officers who exercise a wide range of responsibilities
and functions. Ziglar, 582 U. S., at ___–___ (opinion of
THOMAS, J.) (slip op., at 4–5).* This petition illustrates that
oddity: Petitioner alleges that university officials violated
——————
*Certain Government officials receive heightened immunity, including
absolute immunity, based on the common law or their constitutional sta-
tus. Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982) (discussing judges,
prosecutors, and the President, among others).
2 HOGGARD v. RHODES
Statement of THOMAS, J.
her First Amendment rights by prohibiting her from plac-
ing a small table on campus near the student union build-
ing to promote a student organization. According to the
university, petitioner could engage with students only in a
designated “Free Expression Area”—the use of which re-
quired prior permission from the school. The Eighth Circuit
concluded that this policy of restricting speech around the
student union was unconstitutional as applied to petitioner.
Turning Point USA at Ark. State Univ. v. Rhodes, 973 F. 3d
868, 879 (2020). Yet it granted immunity to the officials
after determining that their actions, though unlawful, had
not transgressed “ ‘clearly established’ ” precedent. Id., at
881.
But why should university officers, who have time to
make calculated choices about enacting or enforcing uncon-
stitutional policies, receive the same protection as a police
officer who makes a split-second decision to use force in a
dangerous setting? We have never offered a satisfactory ex-
planation to this question. See Ziglar, 582 U. S., at ___–___
(opinion of THOMAS, J.) (slip op., at 4–5).
This approach is even more concerning because “our anal-
ysis is [not] grounded in the common-law backdrop against
which Congress enacted [§1983].” Id., at ___ (slip op., at 5).
It may be that the police officer would receive more protec-
tion than a university official at common law. See Oldham,
Official Immunity at the Founding (manuscript, at 22–23,
available at https://ssrn.com/abstract=3824983) (suggest-
ing that the “concept of unreasonableness [in the Fourth
Amendment] could bring with it [common-law] official im-
munities”). Or maybe the opposite is true. Lee, The Curi-
ous Life of In Loco Parentis at American Universities, 8
Higher Ed. in Rev. 65, 67 (2011) (discussing how “[f]rom the
mid-1800s to the 1960s” “constitutional rights stopped at
the college gates—at both private and public institutions”).
Whatever the history establishes, we at least ought to con-
sider it. Instead, we have “substitute[d] our own policy
Cite as: 594 U. S. ____ (2021) 3
Statement of THOMAS, J.
preferences for the mandates of Congress” by conjuring up
blanket immunity and then failed to justify our enacted pol-
icy. Ziglar, 582 U. S., at ___ (opinion of THOMAS, J.) (slip
op., at 6).
The parties did not raise or brief these specific issues be-
low. But in an appropriate case, we should reconsider ei-
ther our one-size-fits-all test or the judicial doctrine of qual-
ified immunity more generally.