Tuesday, May 29, 2018

Let's talk sovereign immunity

One of the most perplexing things in the Larry Nassar/MSU fiasco is the topic of sovereign immunity.  There are a bunch of questions about this, starting with why a university with sovereign immunity vs. civil suits would bother with liability insurance to begin with, and continuing of course to why those insurance companies are ponying up hundreds of millions of dollars for something for which they're not liable.  We have here, really, something of a partial triumph of morality and ethics over the law in that $500 million settlement.  Partial, sad to say.

But that said, we ought to examine why MSU and other public institutions have degrees of sovereign immunity to begin with.  Let's start with core government functions; if indeed it is seen as likely that the police, fire department, or military could be effectively shut down by a barrage of civil suits, then some degree of sovereign immunity makes sense there.  It would, if it occurred, endanger the people as a whole.  The application can be debated, but there is a certain logic to it.

Now let's think about universities.  As students at Albion, Calvin, Hillsdale, and a host of other private colleges in Michigan know very well, the state has a vibrant sector of private schools doing pretty much the same thing that the public universities are doing.  So practically speaking, MSU has no more call for sovereign immunity than does Hillsdale.  The only justification for the policy, really, is the notion that public universities either have greater opportunities for liability than others, or that they are uniquely incapable of defending themselves against such lawsuits.

And if that's the best argument out there--and logically I think it is--immunity for universities needs to go.  To paraphrase Frederick Douglass, those denied recourse in the ballot box and the jury box may seek it in the cartridge box.

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