University Stiffs Can't Take a Joke, Win Qualified Immunity

By Robyn Hagan Cain on December 04, 2012 | Last updated on March 21, 2019

Things that we learned from the Eighth Circuit Court of Appeals this week:

  1. You can get a degree in funeral science.
  2. Your Facebook status could be cause for termination from a funeral science teaching gig.
  3. The school that fires you for your Facebook status might be entitled to qualified immunity.

Toby Sutton sued two Arkansas State University: Mountain Home administrators after he was terminated as the school's Funeral Science Director. He claimed the administrators violated his right to procedural due process by failing to provide an adequate pre-termination hearing.

Sutton, who had a nine-month contract with the University, was unceremoniously canned for a Facebook status update. The offending message? "Toby Sutton hopes this teaching gig works out. Guess I shouldn't have cheated through mortuary school and faked people out. Crap!"

In Cleveland Board of Education v. Loudermill, the Supreme Court held that the Due Process Clause requires a pre-termination hearing in some form, but it doesn't have to be elaborate if a post-termination hearing is also available. Following Loudermill, the Eighth Circuit has consistently held that, where post-termination proceedings are available, "informal meetings with supervisors" may be sufficient pre-termination hearings.

Sutton's termination meeting fell within the "informal meeting" category. Vice-Chancellor Patricia Bailey called him in for a meeting, read the offending Facebook statement aloud, and handed him a termination notice citing academic fraud and unprofessional conduct.

There's debate as to whether ASU's post-termination process was so inadequate that due process required more than an informal pre-termination hearing. Regardless, the Eighth Circuit concluded that the possible inadequacy of University's post-termination procedures -- which Sutton failed to invoke -- wasn't a proper basis for denying qualified immunity from individual-capacity damage claims based entirely on the alleged inadequacy of the pre-termination process.

Here, the appellate court reasoned that the administrators were entitled to qualified immunity because reasonable school officials would not have known that the termination process violated Sutton's clearly established due-process rights.

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