IMMUNITY

Immunity

Immunity

Definition

Immunity, an affirmative defense to tort claims against governmental entities, is generally identified as being one of three types: sovereign, qualified, or absolute. This entry examines how those kinds of immunity are applied in educational settings and how immunity may be lost or waived.

Types of Immunity

Sovereign, or governmental, immunity is rooted in the concept in English common law that the king can do no wrong. This notion can be interpreted variously that the sovereign cannot be liable in his own court; that because the king embodies the law, he cannot be brought to court without his consent; or, that because the king, as the patriarchal monarch charged with looking out for the best interests of his subjects, would not harm his subjects, it would be inconsistent with this philosophy for the sovereign to sustain claims against itself.

The ancient concept of sovereign immunity continues in its application in more recent times to federal and state governments in the United States as sovereign entities. School boards, as agencies of state government, share in the state's sovereign immunity. An argument for sovereign immunity inuring to school boards is that public funds should be spent on educational purposes and not diverted to satisfy tort claims of individual private plaintiffs. Another justification for immunity is based on the principle that because school boards lack the authority to commit tortuous acts, such acts must have been committed by officials who lacked the legal agency to commit wrongs. A final rationale for boards sharing in a state's sovereign immunity is grounded in the separation of powers doctrine (Yanero v. Davis, 2001).

An additional expression of sovereign immunity occurs through application of the Eleventh Amendment, which removes federal court jurisdiction over suits that citizens of other states or countries bring against states. If school boards are considered “arms of the state,” then they retain sovereign immunity from suit in federal courts.

Qualified, or conditional, immunity is an affirmative defense to tort claims that is available for school officials who perform discretionary functions. As an extension of sovereign immunity, qualified immunity protects officials who act clearly within the scope of their duties (Wood v. Strickland, 1975). School officials and employees retain their qualified immunity against Section 1983 claims when their conduct does not violate clearly established statutory or constitutional rights of which reasonable persons would have known (Lowe v. Letsinger, 1985).

Absolute immunity affords a complete defense to tort claims. State legislators (Tenney v. Brandhove, 1951), prosecutors (Imbler v. Pachtman, 1976), and judges (CM. Clark Insurance Agency v. Reed, 1975) have absolute immunity. Members of Congress have immunity in speeches, opinion, debates, voting, written reports, presenting resolutions, and generally all legislative functions (U.S. Constitution, Article. I, Section 6, Clause 1; United States v. Ballin, 1892). Legislatures may also provide absolute immunity by statute in specified circumstances, such as where the state of Alabama declared that school board officials are absolutely immune from civil and criminal liability for actions authorized under a statute permitting the use of corporal punishment (Alabama, ...