WASHINGTON—Today, the Institute for Justice (IJ) submitted an amicus brief encouraging the United States Supreme Court to hear a case challenging blanket constitutional immunity for a school police officer who tased a student with disabilities. 

In November 2016, J.W.—a 17-year-old student who suffers from “an intellectual disability” and “emotional disturbance” which impact his ability to control his emotions—became agitated after a classmate bullied him. He tried to remove himself from the situation and went to his “chill out” room. It was occupied, so he tried to leave the building. But he was stopped by two school officials, a security guard, and two school police officers—one of whom was Officer Elvin Paley, who knew J.W. was a special-education student. J.W. told them they were “making it worse” and that he wanted to leave to “cool down.” Instead, they physically barred him from leaving, and Paley proceeded to put J.W. in a chokehold and repeatedly tase him, including after J.W. was totally subdued. 

Following the tasing, J.W.’s mother began keeping him home from school due to severe anxiety and PTSD. After getting nowhere with school officials, she filed a lawsuit alleging that Paley’s actions violated J.W.’s constitutional rights. In August 2023, the 5th U.S. Circuit Court of Appeals upheld a lower court’s decision to wholly immunize Paley from all constitutional claims. Now, J.W.’s attorneys from the Georgetown Institute for Constitutional Advocacy and Protection are petitioning the Supreme Court to hear the case and undo the Fifth Circuit’s elimination of all constitutional protection when public-school officers and other officials subject schoolchildren to excessive force or violence. They also ask the high court to review such violence under the typical Fourth Amendment “reasonableness” standard that governs excessive force claims. Instead, most federal courts of appeals review such claims under a much more onerous “shocks the conscience” standard that leaves almost all violence unredressed.    

“The family deserves to have this case heard on the merits and not simply dismissed by a blanket immunity that no other court in the country recognizes,” said IJ Attorney Jaba Tsitsuashvili, author of the Institute for Justice’s amicus brief in support of the petition. “The Fifth Circuit is incredibly out of step with the rest of the federal judiciary when it comes to providing such blanket immunity for school employees. The Supreme Court should take this case to eliminate that blanket immunity, and to ensure that violence in this context is subject to truly meaningful constitutional review.” 

The 5th U.S. Circuit Court of Appeals—which covers Louisiana, Mississippi, and Texas—is the only circuit court in the country that completely immunizes school officials who abuse children from constitutional scrutiny. That has resulted in case after case of unprovoked and unredressed violence against vulnerable children, as detailed in IJ’s amicus brief. As a group of children’s rights organizations explained in a recent filing, those three states see nearly half of all such violence in the country.  

“The way the Fifth Circuit currently assesses claims of unconstitutional violence by school officials makes no sense and flies in the face of existing Supreme Court precedent,” said IJ Senior Attorney Patrick Jaicomo. “The Supreme Court should make clear that the Fourth Amendment’s protections against unreasonable seizures apply in these cases.” 

IJ previously represented a Louisiana mother who asked the Supreme Court to hear her case, which challenged the same blanket immunity for school officials who repeatedly hit her daughter (who has non-verbal autism). But the Supreme Court declined to hear the case in January. J.W.’s case presents another opportunity for the court to redress these recurring issues.