The ruling is a clear warning to do-nothing boards of trustees and boards of regents that they have an affirmative duty to ensure that public universities uphold constitutional rights in education. From now on, they will also enjoy a no qualified immunity from personal suit, at least in the Fifth Circuit. UNT’s Board of Regents had direct governing authority over all UNT officials. They too can therefore be held accountable under the Ex Parte Young for sitting idly by while career university bureaucrats trampled Professor Jackson’s free speech.
An appeal on this narrow, technical issue will help civil-rights plaintiffs going forward. It clarifies the rights of plaintiffs and who can be sued.