Ralph Clay Walsh, Jr. v. Lisa Hodge, et al.

Justice Thomas and Justice Sotomayor have criticized the “clearly established” prong of the qualifiedimmunity test and would revisit the Court’s precedent as to what is required for the law to be “clearly established.” Baxter v. Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting from denial of certiorari); Kisela v. Hughes, 138 S. Ct. 1148, 1155 (2018) (Sotomayor, J., joined by Ginsburg, J., dissenting). The District Court in this case concluded that the relevant precedent was “clearly established,” so it rejected qualified immunity for university officials who denied the Petitioner Dr. Walsh the procedural-dueprocess right to confront and cross-examine his accuser in a Title IX disciplinary proceeding. The Fifth Circuit reversed. It concluded that the law was “not clearly established” unless the relevant precedent is at a “high degree of specificity” that is “beyond debate” and that the existence of a “split among the Federal Circuits” makes the law “not clearly established.” App.18a, App.22a, District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (cleaned up); Wilson v. Layne, 526 U.S. 603, 618 (1999). The courts of appeals are split 4-7 on how to apply Wilson/Wesby. And they are split 3-1 on the level of specificity required for deliberative as opposed to splitsecond decisions. Petitioner thus presents two questions:

1. Does the mere presence of a circuit split necessarily foreclose a finding that the law is “clearly established” for qualified immunity purposes?

2. If not, does Wilson/Wesby’s “clearly established” standard apply, or does a lower standard apply, when officials have sufficient time to obtain and act on legal advice before their rights-violating conduct occurs?