The opinion
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 1 of 19
FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-12144
____________________
DR. LANA FOSTER,
Plaintiff-Appellee,
versus
ECHOLS COUNTY SCHOOL DISTRICT,
ECHOLS COUNTY BOARD OF EDUCATION,
Defendants,
SHANNON KING, et al.,
individually and in their official capacities,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:23-cv-00089-WLS
____________________
Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges.
GRANT, Circuit Judge:
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 2 of 19
2 Opinion of the Court 24-12144
Dr. Lana Foster was one of the first black children to
integrate Echols County Schools. Later, she was one of the first
black faculty members in the district—until she was fired in 2018.
The school board cited ethical violations, but during her tenure
alone, the district had settled at least three complaints relating to
racially discriminatory employment practices—so Foster had her
doubts. And when she filed a charge with the EEOC for
employment discrimination and retaliation, the district settled
those claims, too.
The resulting settlement agreement required the school
district to promptly take certain actions, but Foster says they did
nothing. She turned to federal court, suing the district, the school
board, the school board members, and the former and current
school superintendents. This time, the defendants did not settle.
Instead, they all moved to dismiss. In particular, the school officials
invoked qualified immunity, arguing that their alleged conduct—
refusing to implement Foster’s settlement agreement based on
their racial animus toward her—did not violate clearly established
law.
This last question is the only one on appeal, and we agree
with the district court that qualified immunity does not apply; the
school officials were on notice that interfering with a contract
because of race was illegal. Still, the officials object that qualified
immunity must apply because whether they can be held personally
liable under § 1981 is an open question. And without certainty
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 3 of 19
24-12144 Opinion of the Court 3
about their personal potential for liability, they say, qualified
immunity applies even in the face of plainly illegal conduct.
No. An official’s understanding about whether he may be
held liable is irrelevant. Qualified immunity asks whether officials
were on notice that their alleged conduct was unlawful—not
whether they could be sued for it. We affirm.
I.
Foster has lived in Echols County her whole life. 1 First
making history integrating the local schools, she later became one
of the district’s first black educators. Several members of her family
worked for the district, too. But according to Foster, it was not a
smooth transition, and school administrators directed “racial
hatred” at her family for decades. And during the 2008–2009 school
year, the district moved her from her usual teaching role to what
she calls a “less desirable Alternative School position” and stripped
her of club leadership duties.
She sued the district, claiming that those moves were
racially motivated. The parties settled in 2011, and the settlement
required the district to pay Foster $40,000 and reinstate her club
leadership role. But after the 2011 settlement, things got worse
rather than better—at least according to Foster, who says the
district told her that parents in the community objected to black
1 Because this case comes to us on a motion to dismiss, we accept the
complaint’s factual allegations as true and construe them in Foster’s favor.
Otto Candies, LLC v. Citigroup Inc., 137 F.4th 1158, 1177 (11th Cir. 2025).
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 4 of 19
4 Opinion of the Court 24-12144
teachers and that white colleagues were told on pain of firing not
to associate with her.
Less than a year after her suit, the U.S. Department of
Education’s Office of Civil Rights investigated Foster’s complaints
about the school district’s noncompliance with Title VI’s
prohibitions against racial discrimination. The district quickly
signed a “Resolution Agreement,” which ended the investigation.
The district agreed (among other things) to “develop a recruitment
plan for increasing the number of qualified black applicants” and
conduct Title VI training for “the Superintendent, all principals,
and any other individuals who have any role in recruiting.”
According to Foster, this agreement improved nothing, and
the problems came to a head in 2018 when the district fired her.
She contested her termination, and the Georgia Attorney General
and Professional Standards Commission took her side, finding “no
probable cause” to support her termination on the ethics grounds
the district cited.
Foster returned to the courts. She sued the district for Open
Records Act violations, and that suit revealed that two school
board members who had played a part in deciding to fire her had
used racial slurs in text messages. A charge with the EEOC for
racial discrimination and retaliation soon followed. Rather than
defend against Foster’s new charge, the district again chose to
settle. The parties’ agreement, signed in 2020, required the district
to pay Foster more than $130,000 and reclassify her firing as a
“voluntary resignation.” The district also agreed to “immediately”
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 5 of 19
24-12144 Opinion of the Court 5
amend its recruitment and hiring practices and make them publicly
available. And like the earlier Resolution Agreement, the new
settlement agreement required the district to develop a plan to
recruit more black applicants to apply for vacant positions.
About a year later, in 2021, Foster checked in on the district’s
progress. She filed another open records request, this time seeking
documents related to compliance with the settlement agreement,
including a copy of the district’s updated hiring plan. The district’s
response was a link to a policy that had last been updated in 2013—
years before it committed to developing a new plan. By early 2022
the district revised its policy, but according to Foster, the new
approach too fell short of the settlement agreement’s demands.
Foster sued both the district and the school board, plus
seven school officials—the former district superintendent, the
current superintendent, and all five school board members. The
defendants moved to dismiss the complaint for failure to state a
claim. In response, Foster filed an amended complaint with six
claims:
(1) denial of her right to make and enforce contracts based
on her race under 42 U.S.C. §§ 1981 and 1983, against all
defendants;
(2) breach of contract under Title VII, against the school
district and board;
(3) breach of contract under Georgia law, against the school
district and board;
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 6 of 19
6 Opinion of the Court 24-12144
(4) breach of the implied covenant of good faith and fair
dealing under Title VII and Georgia law, against all
defendants;
(5) breach of third-party beneficiary agreement under Title
VII and Georgia law, against the school district and
board; and
(6) retaliation for engaging in protected activities under 42
U.S.C. §§ 1981 and 1983, against all defendants.
All in all, she alleged that the school officials were “aware of the
District’s obligations” under the settlement agreement “and chose
to ignore” them because of “race-based animus” toward her. The
defendants again moved to dismiss for failure to state a claim. And
the school officials defended against Foster’s § 1981 claims on
qualified immunity grounds.
The district court dismissed Foster’s complaint in part. That
included rejecting, against all defendants, Foster’s retaliation claim,
plus her state-law breach-of-contract claim and her third-party
beneficiary claim against the district and board. The court also
dismissed her claim for breach of the implied covenant of good
faith and fair dealing against the school officials. The rest of the
lawsuit remains. For the school district and the board, Foster’s
claims for the denial of her rights under § 1981, breach of contract
under Title VII, and breach of the implied covenant are still in
play. 2 And for the school officials, the district court allowed
2 The district court allowed Foster’s Title VII breach-of-contract claim to
proceed against the school district and board to the extent that it relies on a
breach of Section III of the Settlement Agreement. And it allowed her breach-
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 7 of 19
24-12144 Opinion of the Court 7
Foster’s § 1981 denial-of-rights claim to move forward and denied
qualified immunity.3 This interlocutory appeal followed on the
qualified immunity question.
II.
We review a district court’s denial of qualified immunity on
a motion to dismiss de novo. Bailey v. Wheeler, 843 F.3d 473, 480
(11th Cir. 2016).
III.
This appeal asks only one thing: whether Foster’s complaint
states a violation of clearly established law sufficient to overcome
the school officials’ qualified immunity defense. It does.
A.
We begin with the basics on qualified immunity. “When
government officials abuse their offices, actions for damages may
offer the only realistic avenue for vindication of constitutional
guarantees.” Anderson v. Creighton, 483 U.S. 635, 638 (1987)
(alteration adopted and quotation omitted). But such actions come
with costs. Id. To name one, subjecting government officials to
of-the-implied-covenant claim to proceed against the school district and board
to the extent that it relies on federal law.
3 Foster brought her denial-of-rights claim under both § 1981 and § 1983
because § 1981 confers a right, but it does not itself provide a cause of action
against state actors. See Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir.
2000). So Foster, like all other § 1981 plaintiffs with claims against state actors,
must rely on § 1983 to pursue her denial-of-rights claim against the school
officials. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989).
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 8 of 19
8 Opinion of the Court 24-12144
“personal monetary liability and harassing litigation” risks “unduly
inhibit[ing] officials in the discharge of their duties.” Id.
The Supreme Court balanced these objectives when it
recognized qualified immunity as an affirmative defense. Harlow v.
Fitzgerald, 457 U.S. 800, 814 (1982). To lessen the perceived
burdens on officials performing “discretionary functions,” qualified
immunity shields them from civil liability—but only when their
conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Id. at 816; Mullenix v. Luna, 577 U.S. 7, 11 (2015)
(quotation omitted). Put differently, qualified immunity protects
“all but the plainly incompetent or those who knowingly violate
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). And it shields
officials not only from personal liability for monetary damages, but
also from defending a costly action through trial. See Pearson v.
Callahan, 555 U.S. 223, 231 (2009). So courts must decide “at the
earliest possible stage in litigation” whether qualified immunity
applies. Id. at 232 (quotation omitted).
That analysis involves two questions, and those two
questions can be considered in either order: whether the officials
“violated a federal statutory or constitutional right,” and whether
“the unlawfulness of their conduct was clearly established at the
time” they acted. District of Columbia v. Wesby, 583 U.S. 48, 62–63
(2018) (quotation omitted). Unless the answer for both is yes, an
official is entitled to qualified immunity. See id.; see also Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011).
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 9 of 19
24-12144 Opinion of the Court 9
The first question, whether the defendant violated the law,
may be easier or harder in a given case. But not because of qualified
immunity—some applications of law to fact are just difficult. But
the second question, whether the law is clearly established,
presents a set of doctrinal challenges unique to qualified immunity.
For a right to be clearly established, it must be “sufficiently clear
that every reasonable official would understand that what he is
doing” violates it. Wesby, 583 U.S. at 63 (quotation omitted). This
inquiry is an objective one, and depends on whether an official had
“fair warning” that his conduct was unlawful. Coffin v. Brandau, 642
F.3d 999, 1013 (11th Cir. 2011) (en banc) (quotation omitted); see
Harlow, 457 U.S. at 818. Qualified immunity, in short, protects
government officials unless “existing law” puts the unlawfulness of
their conduct “beyond debate.” Wesby, 583 U.S. at 63 (quotation
omitted).
What’s more, the “nature of particular conduct” is the key
inquiry. Mullenix, 577 U.S. at 12 (alteration adopted and quotation
omitted). After all, defining the law too generally would make it
difficult for an official to reasonably anticipate its application to
particular facts. See id.; Anderson, 483 U.S. at 639. So courts are
charged to define clearly established law with enough “specificity”
that a reasonable officer will understand that “his conduct was
unlawful in the situation he confronted.” Wesby, 583 U.S. at 63
(quotations omitted). It’s true that in some rare-but-obvious cases,
the unlawfulness of the conduct can be clear even without existing
precedent that is directly on point. Id. at 64; see also Powell v. Snook,
25 F.4th 912, 920 (11th Cir. 2022). But either way, the baseline of
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 10 of 19
10 Opinion of the Court 24-12144
the qualified immunity analysis is the nature of the official’s alleged
conduct.
B.
With that, we turn to the school officials’ qualified
immunity defense. 4 They contend that their alleged conduct—
impairing Foster’s contractual relationship with the district
because of her race—did not violate clearly established law. We
disagree.
Section 1 of the Civil Rights Act of 1866, now codified as 42
U.S.C. § 1981, promises that every person “shall have the same
right” to “make and enforce contracts . . . as is enjoyed by white
citizens.” The law defines “make and enforce contracts” as
including “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.”
42 U.S.C. § 1981(b). This provision protects individuals against
“impairment” by both private parties and officials acting “under
color of State law.” Id. § 1981(c).
4 The school officials do not appear to challenge the statutory-violation prong
on appeal. That is, they do not argue that Foster failed to plausibly allege that
the school officials denied her rights under § 1981 (setting aside whether those
rights are clearly established). Following the school officials’ lead, we assume
that Foster plausibly alleged a statutory violation against each school official.
Accordingly, we address only step two of the qualified immunity analysis:
whether the alleged conduct violated clearly established law.
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 11 of 19
24-12144 Opinion of the Court 11
Foster alleges that the school officials denied her right to
“make and enforce contracts” under § 1981 by deliberately failing
to hold up their end of the settlement agreement because of their
racial animosity toward her. The parties agree that Foster’s trial
court briefing did not identify a case with “materially similar facts”
to this one, as is ordinarily required. Powell, 25 F.4th at 920. Indeed,
neither side adequately developed its argument before the district
court. But we, like the district court, have little difficulty in
reaching the narrow legal conclusion that as a matter of “obvious
clarity,” all reasonable government officials would know they
cannot refuse to follow a contract because of the contracting
party’s race. Id. at 921.
First, take § 1981’s text. That law prohibits officials from
“impair[ing]” a contracting party’s equal right to enjoy the
“benefits” of their contractual relationship, and Foster alleges that
the school officials did exactly that. 42 U.S.C. § 1981. She identifies
an impaired contractual relationship: her settlement agreement
with the district. And she alleges that the officials’ conduct denied
her the benefit of her bargain: a revised hiring policy that reflects
the district’s efforts to remedy its poor track record with black
employees. The officials knew that the district had settled with
Foster. And they knew that the agreement required them to take
certain actions. Yet they chose not to take them. Worse still, they
made that choice because of Foster’s race, at least according to the
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 12 of 19
12 Opinion of the Court 24-12144
pleadings. Foster thus alleges that the school officials violated her
clearly established § 1981 rights. 5
Our precedent says the same thing. In Faraca v. Clements, for
example, Dr. Andrew Faraca (a white male) applied for a position
with what was then called the Georgia Retardation Center. 506
F.2d 956, 957–58 (5th Cir. 1975). 6 He was well-qualified, but the
Center’s director told his employees to reject Faraca because his
wife was black. Id. at 958. The couple sued both the Center and
its director under § 1981. Id. at 957. After a bench trial, the district
court held the director personally liable for interfering with
Faraca’s prospective contract rights, and we affirmed. Id.
“Technically,” the opinion acknowledged, the State “was the
prospective employer and only it would be in a position to refuse
to enter into a contract.” Id. at 959. Even so, we permitted a suit
5 It’s true that “[e]ach defendant is entitled to an independent qualified-
immunity analysis.” Myrick v. Fulton County, 69 F.4th 1277, 1301 (11th Cir.
2023) (quotation omitted). But we again emphasize that the school officials
did not adequately develop an argument on appeal that Foster failed to
plausibly allege that they (individually) violated her rights under § 1981. On
remand, Foster must carry her burden in proving that each school official
engaged in conduct that was a but-for cause of the impairment of her § 1981
rights. See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327,
341 (2020). Here, we narrowly hold that—if proven—that conduct would
violate clearly established federal law.
6 This Court has adopted as binding precedent all decisions of the Fifth Circuit
issued before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 13 of 19
24-12144 Opinion of the Court 13
for personal liability based on the director’s third-party
“interference with those rights guaranteed under” § 1981. Id.
So too here. As in Faraca, Foster alleges “interference” with
her contractual rights because of racial animus. Id.; see 42 U.S.C.
§ 1981. Reasonable officials—reading § 1981’s text, considering
Faraca, or both—would understand that they could not “impair[]”
Foster’s equal right to enjoy the settlement agreement’s benefits
because of her race. 42 U.S.C. § 1981(c). We thus reject the school
officials’ contention that their alleged conduct did not violate
clearly established law.
C.
The officials protest this result, but their counterarguments
fall short—mainly because they misunderstand qualified
immunity.
The officials first resist the conclusion that the law clearly
prohibits nonparties to a contract from interfering with the
plaintiff’s contractual rights under § 1981. 7 Despite both the
statute’s text and this Court’s precedent, they say it is an open
question. True enough, in Domino’s Pizza, Inc. v. McDonald, the
Supreme Court explained that the plaintiff must have rights under
7 In dismissing Foster’s breach-of-the-implied-covenant claim against the
school officials, the district court concluded that they are nonparties to the
settlement agreement. Neither party contests that conclusion for purposes of
this qualified immunity appeal—even though the former superintendent
signed the agreement on the district’s behalf. We thus assume that all school
officials (regardless of their titles) are nonparties to the settlement agreement.
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 14 of 19
14 Opinion of the Court 24-12144
an existing (or proposed) contract to bring a § 1981 claim. 546 U.S.
470, 479–80 (2006). But that is irrelevant here—Foster has rights
under the settlement agreement.
The school officials, however, misunderstand Domino’s,
arguing that it also says that a defendant must be a party to the
contract for a § 1981 claim to follow. No. In fact, Domino’s did not
consider that question—but this Court has. See Faraca, 506 F.2d at
959. We have already explained Faraca, in which we allowed a
plaintiff to sue a nonparty to a contract for interfering with the
plaintiff’s prospective contract rights. See id. Same goes for Moore
v. Grady Memorial Hospital Corporation, in which yet another § 1981
claim proceeded on a third-party interference theory. 834 F.3d
1168 (11th Cir. 2016). There, a black professor alleged that the
hospital where he performed clinical duties made racially
motivated decisions to oust him from the operating room and
suspended his hospital privileges, putting him in breach of his
employment contract with his university. Id. at 1169, 1171. He
sued the hospital and several doctors under § 1981 for interfering
with his employment contract. Id. at 1171. His claims survived
dismissal because we held that he had plausibly alleged that the
hospital and several doctors, all nonparties to the contract,
impaired his agreement with the university. Id. at 1171, 1174.
The school officials also press McCarthy v. City of Cordele, but
there too, they miss the mark. 111 F.4th 1141 (11th Cir. 2024).
McCarthy involved an employment discrimination suit against a
municipal employer. Id. at 1147. In that context, our cases require
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 15 of 19
24-12144 Opinion of the Court 15
the plaintiff to allege that the defendant had the power to
“effectuate” the plaintiff’s firing. Id. (quotation omitted); see Quinn
v. Monroe County, 330 F.3d 1320, 1326–28 (11th Cir. 2003). For
McCarthy, because the Commission itself fired him, not the
individual Chair, his § 1981 claim against the Chair could not
survive. McCarthy, 111 F.4th at 1147.
The decision goes no further. And if McCarthy did eliminate
third-party liability in this context, it would contradict Faraca and
Moore. That, in turn, would violate this Court’s prior-panel
precedent rule, which does not allow that kind of do-over. See Scott
v. United States, 890 F.3d 1239, 1257 (11th Cir. 2018).
D.
These cases, besides not persuading us, are somewhat of a
sideshow to the officials’ primary point. The real meat of their
argument is that qualified immunity applies because uncertainty
exists about whether government officials can be held personally
liable under § 1981. In support, they identify several out-of-circuit
cases questioning whether § 1981 claims are cognizable against
government officials. See, e.g., Johnson v. Halstead, 916 F.3d 410, 419
n.3 (5th Cir. 2019); Jones v. City of Houston, 756 F. App’x 341, 347 n.6
(5th Cir. Nov. 20, 2018) (unpublished). One from this Court, too,
albeit in an unreasoned footnote in an unpublished opinion. See
Okwan v. Emory Healthcare Inc., No. 20-11467, 2021 WL 4099236, at
*1 n.1 (11th Cir. Sept. 9, 2021) (unpublished).
The problem is that this liability argument is completely
beside the point. It “asks the wrong question about qualified
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 16 of 19
16 Opinion of the Court 24-12144
immunity.” Taylor v. Ways, 999 F.3d 478, 491 (7th Cir. 2021); accord
O’Connor v. Eubanks, 83 F.4th 1018, 1025 (6th Cir. 2023) (Thapar, J.,
concurring). The right question is whether the wrongfulness of an
official’s conduct was clearly established—not whether the rules of
individual liability were settled. Taylor, 999 F.3d at 491. After all,
the qualified immunity standard is an objective inquiry that focuses
on the defendants’ “actions” or “conduct.” Id. (collecting cases).
So whether a defendant is sure that he can be held civilly liable for
his illegal conduct plays no part in the qualified immunity analysis.
See id.
Our precedent supports this understanding. In Williams v.
Aguirre, for instance, the defendant officers were not entitled to
qualified immunity for malicious prosecution, even though our
case law on that cause of action was “unsettled” at the time. 965
F.3d 1147, 1169 (11th Cir. 2020). Why? The “doctrinal tensions”
that we identified concerned the “vehicle” controlling liability for
concededly unlawful conduct—not the lawfulness of the conduct
itself. Id. Because the latter question is what matters for qualified
immunity, and the law clearly prohibited the alleged conduct, we
rejected the officers’ attempt to avoid suit. Id.
Taylor v. Ways, from the Seventh Circuit, is instructive, too.
999 F.3d 478. There, the plaintiff sued several government officials
under § 1983, alleging that he was fired because of his race in
violation of the Equal Protection Clause. Id. at 481. One defendant
asked for qualified immunity on the grounds that “it was not
clearly established that a subordinate employee could be held liable
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 17 of 19
24-12144 Opinion of the Court 17
for unlawful efforts to cause the termination of another employee.”
Id. at 491 (emphasis omitted). The court said no, correctly
reasoning that the qualified immunity analysis focuses on whether
the official’s conduct violated a clearly established right—not
whether that conduct may give rise to liability. Id. We agree. If
an official knows (or should know) that his actions are illegal, it is
no excuse that liability may not have caught up with him. That is
a question about the merits, not immunity.
The cases the school officials rely on do not convince us
otherwise. First up is Ziglar v. Abbasi, in which a set of executive
branch officials were accused of on-the-job conspiracy in post-9/11
policymaking. 582 U.S. 120, 125–26, 152 (2017). The Supreme
Court granted them qualified immunity. Id. at 155. Why?
Uncertainty about whether the law prohibited the officials’
conduct: “The question with respect to the § 1985(3) claim is
whether a reasonable officer in petitioners’ position would have
known the alleged conduct was an unlawful conspiracy.” Id. The
officials here, in contrast, equate uncertainty about the lawfulness
of their alleged conduct with disagreement about whether they can
be held personally liable for it. Those are not the same. And only
the first has anything to do with qualified immunity.
To be fair, at least one court has endorsed the
misunderstanding pressed by the school officials. The Fifth Circuit
reversed a denial of qualified immunity because “it was not clearly
established that public employees are subject to individual liability”
under the Family and Medical Leave Act at the time the challenged
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 18 of 19
18 Opinion of the Court 24-12144
conduct occurred. Modica v. Taylor, 465 F.3d 174, 188 (5th Cir.
2006). But that out-of-circuit precedent does not persuade us. Plus,
as long as we are counting noses, the Tenth Circuit confronted the
same issue and came out the other way. See Gray v. Baker, 399 F.3d
1241, 1245 (10th Cir. 2005). That court explained that “the question
of whether the defendants are subject to individual liability under
the FMLA is one of statutory construction that had no bearing on”
whether the law clearly prohibited the defendants’ conduct. Id. at
1245. We agree—the officials’ uncertainty about whether they
could face civil liability for illegal conduct has nothing to do with
the qualified immunity analysis. The relevant question is whether
their conduct was unlawful, not whether a plaintiff can successfully
haul them into court for it. 8
The school officials’ argument, taken to its full extent, would
give government officials a free pass to violate the law whenever
the path to their personal liability is not well-trod. That cannot be
the case. “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments about
open legal questions.” al-Kidd, 563 U.S. at 743. It does not give
them a license to “knowingly violate the law.” Id. (quotation
omitted).
In short, according to Foster’s allegations, the defendant
school officials impaired her ability to reap the full benefits of her
contract with the district. And they did so because of deep-seated
8 We take no position on the merits of whether individual government officials
can face personal liability under § 1981.
USCA11 Case: 24-12144 Document: 39-1 Date Filed: 03/18/2026 Page: 19 of 19
24-12144 Opinion of the Court 19
racial animus toward her. Under § 1981, every reasonable official
would have understood that conduct to be unlawful, and that
conclusion forecloses the school officials’ request for qualified
immunity.
* * *
Foster alleges that the defendants engaged in conduct that
violated clearly established law. Accordingly, we AFFIRM the
district court’s decision denying qualified immunity.