The judge-made doctrine of qualified immunity has received significant attention over the past 14 months as the nation has grappled yet again with the persistent abuse of Black people at the hands of law enforcement.

The focus has centered on how qualified immunity protects law enforcement officers who abuse civilians, including children, on the streets and in neighborhoods. But as the debate over reform continues, it is important to keep in mind that qualified immunity extends beyond just police-civilian interactions. As two recent decisions by the 5^th U.S. Circuit Court of Appeals—the federal appeals court that covers Texas, Louisiana, and Mississippi—lay bare, the doctrine is also wreaking havoc on children in school.

In June, the 5^th Circuit published two opinions that allow public school employees to physically abuse students without fear of liability under federal civil rights law. The 5^th Circuit is uniquely restrictive of students’ rights, and because of the doctrine of qualified immunity, there is little reason to believe that the court will change its jurisprudence on the issue anytime soon.

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In T.O. v. Fort Bend Independent School District, the 5^th Circuit dismissed a complaint brought on behalf of a first grader who claimed that a teacher seized him by the neck, threw him to the floor, and held him in a chokehold for several minutes. Six days later, in J.W. v. Paley, the court tossed a lawsuit filed on behalf of a special education student who was tased by a school resource officer multiple times, including after the student was lying face down on the ground and not struggling.

Both students brought claims under the Fourth Amendment, which protects civilians from unreasonable seizures, including excessive force at the hands of government actors. Typically, Fourth Amendment excessive force claims arise in the law enforcement context—where police beat or kill a person in the course of detaining them, for instance. The amendment applies to state actors writ large, not just the police, and therefore should presumably apply to public school employees. But the 5^th Circuit has been unwilling to say that students have a Fourth Amendment right to be free from excessive force in school.

The driving doctrinal force behind T.O. and J.W. losing their Fourth Amendment claims was qualified immunity, which requires that a constitutional right be clearly established before a state actor can be held liable for violating the right. Because the court’s prior cases did not clarify whether students are protected against physical abuse under the Fourth Amendment, the teacher who choked T.O. and the school resource officer who tased J.W. could not be held liable, regardless of how unreasonably they acted.

Qualified immunity’s implications do not end at T.O. and J.W. losing their cases. Under qualified immunity, the court is allowed to conclude that a right is not clearly established and dismiss the case on that basis, without addressing the substance of the underlying right. The practical effect is that it is still unclear whether students have a Fourth Amendment right to be free from excessive force in school and the court can therefore continue to dismiss these types of cases on qualified immunity grounds, without clarifying the right, in perpetuity.

The upshot of these cases is that students in Texas, Louisiana, and Mississippi do not have an enforceable constitutional right to be free from physical violence at the hands of school employees.

The legal landscape is indefensible and leaves children vulnerable to significant abuse. Texas and Mississippi account for a nationally disproportionate number of incidents of corporal punishment. Black boys are twice as likely as white boys to be corporally punished, while Black girls are three times as likely as white girls.

It’s also nonsensical given the significant police presence in schools—and especially in schools with high Black and Latinx populations. In fact, the employee who tased J.W. was a school resource officer, which is just an allusive title given to police officers assigned to work in schools.

The crisis of police brutality against Black people is a national emergency that requires reform on many levels, including ending qualified immunity. Abolishing the doctrine will also help deliver on the promise of school as a safe space for learning and thriving.