Education Law Attorney
Kennedy & Graven, Chartered
In Minnesota, governmental immunity derives from statute (statutory immunity) or common law (official immunity). Statutory immunity arose in response to Minnesota eliminating its sovereign immunity for tort suits. The Municipal Tort Claims Act presumes that “every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.” Minn. Stat. § 466.02. This general rule of liability is subject to several exceptions, including the discretionary-function exception, which shields municipalities from “[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6. While official and discretionary-function immunity review whether the relevant actor exercised discretion, their rationales differ. Official immunity protects individual public employees to ensure independent judgment is not chilled by fear of personal liability. Discretionary-function immunity, by contrast, protects government entities from judicial interference in legislative or executive policymaking.
Whether the discretionary-function exception automatically shields a school’s hiring decisions from tort liability was the central question in Doe 601 by and through Doe 601 v. Best Academy, a precedential decision issued by the Minnesota Supreme Court on February 26, 2025. The Court rejected the notion that hiring decisions are categorically protected, concluding that a municipality’s decision labeled as a “hiring decision” is not categorically and necessarily a policy-level decision involving balancing economic, social, political, and financial considerations for immunity under the discretionary-function exception.
The case arose after Minor Doe 601, through his mother, brought a negligent hiring claim against Best Academy, a Minneapolis charter school, following a sexual assault committed by one of its teachers. Best Academy moved for summary judgment, arguing that hiring the teacher was discretionary under Minn. Stat. § 466.03, subd. 6. At the heart of the school’s motion was the question of whether Best Academy could claim blanket immunity for its hiring practices that led to the employment of the teacher who later sexually assaulted Minor Doe 601. In granting summary judgment in favor of Best Academy based on the discretionary-function exception, the district court reasoned that a municipality’s decision to hire an employee is “always a planning-level policy decision shielded from tort liability—even absent any evidence that the municipality weighed competing policy considerations in making the decision.” The Minnesota Court of Appeals applied the same reasoning and affirmed the district court’s findings.
The Minnesota Supreme Court granted review to consider, as a matter of first impression, whether a municipality’s hiring decision is categorically and necessarily a policy-level act involving the weighing of competing economic, political, social, and financial considerations.
In analyzing the case, the Court began by identifying the challenged government conduct: Best Academy’s decision to hire the teacher without following established internal procedures. The Court emphasized that this threshold inquiry ensures that immunity is only applied where the conduct demanded by the plaintiff would conflict with a deliberate policy judgment made by the legislative or executive branch. This approach is rooted in separation-of-powers principles, preventing courts from second-guessing core policy decisions made by the legislative or executive branches. In contrast, decisions concerning the day-to-day implementation of established policy—or failures to follow policy—are operational and not shielded by immunity.
From there, the Court reaffirmed that municipalities bear the burden of proving that the discretionary-function exception applies. This burden, the Court clarified, includes demonstrating that the specific conduct at issue—not merely a broad category such as “hiring”—involved the balancing of competing policy considerations. The Court emphasized that general assertions of discretion are insufficient; rather, municipalities must produce concrete evidence of how the decision was made and demonstrate that it stemmed from the type of policy-level deliberation the exception is designed to protect. This constitutes a significant burden, the Court stressed, requiring municipalities to provide specific evidence, including but not limited to meeting minutes, policy documents, or testimony from decision-makers, to demonstrate the actual policy considerations involved. The Court expressly rejected a categorical approach to immunity, cautioning that treating entire categories of government actions, such as hiring decisions, as inherently discretionary violates the longstanding prohibition against a “mere labeling approach.” Instead, the Court concluded courts must conduct a case-specific, context-sensitive inquiry into the nature of the conduct to determine whether it reflects actual policymaking, focusing on the nature of the decision itself, not simply its label.
With this framework in mind, the Court then addressed whether a “hiring decision” is categorically and necessarily a policy-level decision involving the weighing of competing economic, social, political, and financial considerations for purposes of the discretionary-function exception. While acknowledging that in rare instances, a court may infer policy balancing without direct evidence, such as in cases involving national standards or broad public safety concerns, the Court concluded there is no basis for such an inference here. Specifically, Best Academy failed to offer any testimony, documentation, or record demonstrating that its hiring decision reflected such policy balancing. Absent proof that the school’s decision involved a policy-level weighing of risks and priorities, the Court concluded that the discretionary-function exception did not apply. Because the school’s conduct was operational, that is, part of the routine implementation of hiring procedures rather than the product of high-level policy judgment, the claim for negligent hiring could proceed.
It should be noted that the summary judgment record showed that the school did not follow its internal hiring procedures, including failing to collect the required three reference letters, a step that might have uncovered prior misconduct by the teacher. A failure that the Court used to reiterate that violations of established policy are not discretionary. That is because when a municipality adopts specific hiring protocols and fails to follow them, the resulting conduct is properly characterized as operational, not policy-level, and thus falls outside the scope of the discretionary-function exception. This highlights the importance of adhering to internal policies to avoid liability.
Doe 601 marks a significant development in Minnesota’s municipal liability. While the discretionary-function exception remains an important shield for legitimate policymaking, the decision draws a clear boundary around its reach. The Court’s conclusion clarifies that such decisions are not automatically policy-level decisions and mandates a fact-specific inquiry into whether policy considerations were weighed. So, public entities must now be prepared to demonstrate how their decisions, particularly in the context of employment, reflect deliberate policy judgments if they wish to invoke immunity. For public entities, particularly schools, this decision serves as a caution: internal consistency matters. Accordingly, a well-drafted policy is only as defensible as its implementation. Hiring decisions that deviate from internal protocols or are made without documented consideration of policy-level tradeoffs will be treated as operational—and therefore unprotected. Further, while it remains important to preserve flexibility in personnel decisions, failing to adhere to even basic vetting procedures could expose districts to significant liability. As Doe 601 illustrates, courts are increasingly willing to scrutinize the gap between written policies and real-world practices. School districts should proactively review their hiring protocols with legal counsel to ensure thorough documentation and consistent adherence, thereby maximizing legal protection.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Alemayehu Z. Ditamo is an attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9306 or aditamo@kennedy-graven.com.
© Alemayehu Z. Ditamo (2025). Used with permission.
