O. v. Ft Bend Indep Sch Dist ( 2021 )

Case: 20-20225 Document: 00515904194 Page: 1 Date Filed: 06/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 17, 2021
No. 20-20225 Lyle W. Cayce
Clerk
T.O., a child; Terrence Outley; Darrezett Craig,
Plaintiffs—Appellants,
versus
Fort Bend Independent School District; Angela
Abbott, a teacher,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-331
Before Wiener, Costa, and Willett, Circuit Judges.
Wiener, Circuit Judge:
Plaintiffs-Appellants T.O. and his parents, Terrence Outley and
Darrezett Craig (collectively, “Plaintiffs-Appellants”) appeal the dismissal
of their claims arising under the Fourth and Fourteenth Amendments, Title
II of the Americans with Disabilities Act (“ADA”) and § 504 of the
Rehabilitation Act of 1974 (“§ 504”), in connection with a primary school
disciplinary incident experienced by T.O. We agree that the injuries T.O.
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allegedly sustained in an altercation with a teacher resulted from a
disciplinary incident. We are therefore bound by our precedent to affirm the
dismissal of Plaintiffs-Appellants’ constitutional claims. For different
reasons, we affirm the district court’s dismissal of their statutory claims.
I. BACKGROUND
This case arises from injuries that the minor child T.O. alleged to have
sustained during an altercation with a teacher at Hunters Glen Elementary
School, when he was a first-grade student there. T.O. has Attention Deficit
Hyperactivity Disorder and Oppositional Defiant Disorder. Based on these
conditions, Defendant-Appellee Fort Bend Independent School District
(“FBISD”) provided T.O. with a behavioral aide and a Behavioral
Intervention Plan, which called for oral redirection and placement in a quiet
area whenever T.O. misbehaved, and praise when he engaged in appropriate
behavior.
After T.O. exhibited disruptive classroom behavior on a day in 2017,
his aide took him into the hallway and instructed him to remain there until he
calmed down. Defendant-Appellee Angela Abbott, a fourth-grade teacher,
happened to be walking down the hall at the same time and offered her
assistance. Although T.O.’s aide explained that the situation was under
control, Abbott positioned herself between T.O. and the classroom door
while he yelled that he wanted to return to class. In an attempt to re-enter the
classroom, T.O. tried to push Abbott away from the classroom door and hit
her right leg. Abbott responded by seizing T.O.’s neck, throwing him to the
floor, and holding him in a choke hold for several minutes. During that
incident, Abbott yelled that T.O. “had hit the wrong one” and needed “to
keep his hands to himself.” She released T.O. after his aide asked Abbott “to
release him . . . because he needed air and she was holding him the wrong
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way.” FBISD investigated the incident on three separate occasions, but
Abbott was never fired or otherwise disciplined.
Plaintiffs-Appellants sued Abbott under 42 U.S.C. § 1983 for
violations of T.O.’s Fifth and Fourteenth Amendment liberty interest in his
bodily integrity, and his Fourth Amendment right to be free from
unreasonable seizure. They also sued FBISD for disability discrimination in
violation of the ADA and § 504.
In lieu of filing an answer, Abbott and FBISD moved to dismiss all
claims. A magistrate judge issued a memorandum and recommendation,
concluding that (1) Abbott was entitled to qualified immunity because her use
of force was not a constitutional violation under Fee v. Herndon,1 and (2) T.O
had failed to state a claim for disability discrimination against FBISD. The
district court adopted the recommendation in full, dismissing all claims and
denying Plaintiffs-Appellants leave to file a proposed second amended
complaint.
Plaintiffs-Appellants timely appealed, challenging the dismissal of
their § 1983 claims and their discrimination claims. They also appealed the
denial of their motion to file a second amended complaint.
II. STANDARDS OF REVIEW
A motion to dismiss granted on the basis of qualified immunity is
reviewed de novo, accepting all well-pleaded facts as true and drawing all
1
900 F.2d 804, 808 (5th Cir. 1990) (“Our precedents dictate that injuries sustained
incidentally to corporal punishment, irrespective of the severity of these injuries or the
sensitivity of the student, do not implicate the due process clause if the forum state affords
adequate post-punishment civil or criminal remedies for the student to vindicate legal
transgressions.”).
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inferences in favor of the plaintiff.2 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”3 Conclusional allegations, naked
assertions, and “formulaic recitations of the elements of a cause of action will
not do.”4
The denial of a motion for leave to amend a complaint is reviewed for
abuse of discretion.5 A trial court abuses its discretion when its ruling is
“based on an erroneous view of the law or a clearly erroneous assessment of
the evidence.”6
III. ANALYSIS
A. Section 1983 Claims
“To state a claim under 42 U.S.C. § 1983, a plaintiff must first show
a violation of the Constitution or of federal law, and then show that the
violation was committed by someone acting under color of state law.”7
However, “[t]he doctrine of qualified immunity protects government
officials from civil damages liability when their actions could reasonably have
been believed to be legal.”8 Once the defense of qualified immunity has been
asserted, the plaintiff has the burden of demonstrating that “(1) the official
2
Marks v. Hudson, 933 F.3d 481, 485 (5th Cir. 2019).
3
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
4
Id.5
Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013).
6
Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
7
Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005), abrogated
on other grounds, Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).
8
Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc) (citation omitted).
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violated a statutory or constitutional right, and (2) the right was ‘clearly
established’ at the time.”9
Plaintiffs-Appellants claim that Abbott violated T.O.’s right to be free
from (1) state-sanctioned harm to his bodily integrity under the Due Process
Clause of the Fourteenth Amendment and (2) unreasonable seizure under
the Fourth Amendment, when Abbott held him down and choked him. Based
on our precedent, we disagree.
The Fourth Amendment is applicable in a school context.10 In this
circuit, however, claims involving corporal punishment are generally
analyzed under the Fourteenth Amendment.11 It is well-established in this
circuit that “corporal punishment in public schools implicates a
constitutionally protected liberty interest” under the Fourteenth
Amendment.12 But, “as long as the state provides an adequate remedy, a
public school student cannot state a claim for denial of substantive due
process through excessive corporal punishment.”13 This rule was developed
in Ingraham v. Wright14 and applied in Fee v. Herndon.15 It recognizes that,
while “corporal punishment in public schools ‘is a deprivation of substantive
9
Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019) (citation omitted).
10
See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652–53 (1995) (applying the
Fourth Amendment to searches conducted in public schools); New Jersey v. T.L.O., 469
U.S. 325, 336 (1985) (same).
11
Campbell v. McAlister, 162 F.3d 94, 1998 WL 770706, at *2 (5th Cir. 1998)
(unpublished) (“Since our en banc decision in Ingraham v. Wright, we have consistently
applied a substantive due process analysis to claims of excessive force in the context of
corporal punishment at public schools.” (citation omitted)).
12
Ingraham v. Wright, 430 U.S. 651, 672 (1977).
13
Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000).
14
430 U.S. 651.
15
900 F.2d 804.
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due process when it is arbitrary, capricious, or wholly unrelated to the
legitimate state goal of maintaining an atmosphere conducive to learning,’”
when the state provides alternative post-punishment remedies, the state has
“provided all the process constitutionally due” and thus cannot “act
‘arbitrarily,’ a necessary predicate for substantive due process relief.”16
Based on the foregoing, we have consistently dismissed substantive
due process claims when the offending conduct occurred in a disciplinary,
pedagogical setting. For example, we dismissed substantive due process
claims (1) when a student was instructed to perform excessive physical
exercise as a punishment for talking to a friend;17 (2) when a police officer
slammed a student to the ground and dragged him along the floor after the
student disrupted class;18 (3) when a teacher threatened a student, threw him
against a wall, and choked him after the student questioned the teacher’s
directive;19 (4) when an aide grabbed, shoved, and kicked a disabled student
for sliding a compact disc across a table;20 and (5) when a principal hit a
student with a wooden paddle for skipping class.21
In contrast, we have allowed substantive due process claims against
public school officials to proceed when the act complained of was “arbitrary,
16
Id. at 808 (quoting Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d 1243, 1246
(5th Cir. 1984)); Ingraham v. Wright, 525 F.2d 909, 917 (5th Cir. 1976) (en banc), aff'd, 430
U.S. 651 (1977).
17
Moore, 233 F.3d at 873, 875.
18
Campbell, 162 F.3d at *1, *5.
19
Flores v. Sch. Bd. of DeSoto Par., 116 F. App’x 504, 506 (5th Cir. 2004)
(unpublished).
20
Marquez v. Garnett, 567 F. App’x 214, 215, 218 (5th Cir. 2014) (unpublished).
21
Serafin v. Sch. of Excellence in Educ., 252 F. App’x 684, 685–86 (5th Cir. 2007)
(unpublished).
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capricious, or wholly unrelated to the legitimate state goal of maintaining an
atmosphere conducive to learning.”22 For example, we held that a
substantive due process claim could proceed when a teacher allegedly
molested a student,23 and when a teacher tied a student to a chair for two days
as part of an experimental technique.24 We allowed those claims to proceed
because, unlike disciplinary measures, these alleged acts were “unrelated to
any legitimate state goal.”25
Fidelity to our precedent requires us to affirm the dismissal of the
instant claim of substantive due process. The aide removed T.O. from his
classroom for disrupting class, and Abbott used force only after T.O. pushed
and hit her. Even if Abbott’s intervention were ill-advised and her reaction
inappropriate, we cannot say that it did not occur in a disciplinary context.
The facts alleged simply do not suggest that T.O. was the subject of a
“random, malicious, and unprovoked attack,”26 which would justify
deviation from Fee. To borrow from the unpublished opinion in Marquez, in
which this court dismissed § 1983 claims brought by an autistic seven-year
old whose aide yelled at, grabbed, shoved, and kicked that student for sliding
a compact disk across a desk, “the setting is pedagogical, and [T.O.’s] action
was unwarranted.”27 Furthermore, we have consistently held that Texas law
22
See Woodard, 732 F.2d at 1246.
23
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 445 (5th Cir. 1994) (en banc).
24
Jefferson v. Yselta Indep. Sch. Dist., 817 F.2d 303, 305-06 (5th Cir. 1987).
25
Moore, 233 F.3d at 875 (distinguishing Taylor Indep. Sch. Dist., 15 F.3d 443).
26
Flores, 116 F. App’x at 511.
27
567 F. App’x at 217. Moreover, T.O.’s case is easily distinguishable from
Jefferson and Taylor Independent School District. In both of those cases, we allowed § 1983
claims against school officials to proceed because the offending conduct had no conceivable
pedagogical justification. For example, in Jefferson, we held that a teacher violated a
student’s constitutional rights by tying him to a chair over the course of two days without
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provides adequate, alternative remedies in the form of both criminal and civil
liability for school employees whose use of excessive disciplinary force results
in injury to students in T.O.’s situation.28
Plaintiffs-Appellants’ Fourth Amendment claim fares no better. This
court has not conclusively determined whether the momentary use of force
by a teacher against a student constitutes a Fourth Amendment seizure. We
have rejected Fourth Amendment claims brought by a student who was
choked by a teacher on the basis that allowing such claims to proceed would
“eviscerate this circuit’s rule against prohibiting substantive due process
claims” stemming from the same injuries.29 But we have also noted that the
claims of excessive force and unlawful arrest against other school officials
“are properly analyzed under the Fourth Amendment.”30 In light of this
inconsistency in our caselaw, we cannot say that it was clearly established, at
any apparent justification. 817 F.2d at 305–06. The Jefferson court specifically noted that
Ingraham was inapplicable because the complaint alleged that the student “was not being
punished, but was the subject of an instructional technique.” Id. at 305. Similarly in Taylor
Independent School District, we allowed claims to proceed against a teacher who sexually
molested a student because “there is never any justification for sexually molesting a
schoolchild, and thus, no state interest, analogous to the punitive and disciplinary
objectives attendant to corporal punishment, which might support it.” 15 F.3d at 452. In
contrast, the facts here suggest that Abbott’s actions had a disciplinary purpose, as she
attempted to help T.O.’s behavioral aide address T.O.’s behavior and asserted force only
after T.O. hit her.
28
Moore, 233 F.3d at 875 & n.20 (citing TEXAS PENAL CODE ANN. § 9.62 (West
1994); TEXAS EDUC. CODE ANN. § 22.051(a) (West 2013)); see also Cunningham v. Beavers,
858 F.2d 269, 272 (5th Cir. 1988) (holding that adequate traditional common law remedies
existed in Texas to protect students who were subjected to excessive disciplinary force).
29
Flores, 116 F. App’x at 510.
30
Keim v. City of El Paso, 162 F.3d 1159, 1998 WL 792699, at *1, *4 n.4 (5th Cir.
1998) (per curiam) (unpublished) (involving claims that security guards assaulted and beat
a student); see also Curran v. Aleshire, 800 F.3d 656, 661 (5th Cir. 2015) (analyzing claim
that sheriff’s deputy “slamm[ed] a student’s head into the wall” under the Fourth
Amendment).
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the time of the incident, that Abbott’s actions were illegal under the Fourth
Amendment.
Plaintiffs-Appellants unpersuasively attempt to avoid this outcome by
suggesting that Fee has been abrogated by Knick v. Township of Scott31 and
Kingsley v. Hendrickson.32 Not so. Knick concerns Fifth Amendment Takings
claims, and Kingsley concerns excessive force claims brought by pretrial
detainees—circumstances markedly distinguishable from substantive due
process claims brought in an educational context.33 In any event, Knick was
decided after the offending incident in this case, and Kingsley has never been
interpreted by this court as altering the law in the manner Plaintiffs-
Appellants suggest. Even if these cases do call Fee’s validity into question,34
31
139 S. Ct. 2162, 2163 (2019) (holding that a property owner may bring a Fifth
Amendment takings claim in federal court without first exhausting state remedies). T.O.
argues that under Knick, the availability of state remedies is irrelevant to the validity of a
constitutional claim.
32
576 U.S. 389, 389 (2015) (holding that to prevail on an excessive force claim, a
pretrial detainee must “show only that the force purposely or knowingly used against him
was objectively unreasonable”). T.O. argues that under Kingsley, all Fourteenth
Amendment excessive force claims must be evaluated for objective reasonableness.
33
Under our rule of orderliness, for a Supreme Court decision to overrule a
precedent of our course, it “must ‘be unequivocal, not a mere “hint” of how the Court
might rule in the future.’” Mercado v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016) (quoting
United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013)).
34
T.O. argues that Knick implicitly abrogated Fee by stating, in dicta, that “the
‘general rule’ . . . that plaintiffs may bring constitutional claims under § 1983 without first
bringing any sort of state lawsuit . . . . is as true for takings claims as for any other claim
grounded in the Bill of Rights.” 139 S. Ct. at 2172–73 (quotation omitted). Knick does
suggest that the availability of a state remedy might not supplant the availability of a federal
forum for constitutional claims, but numerous other Supreme Court cases have called Fee
into question by holding the same even more clearly. See Zinermon v. Burch, 494 U.S. 113,
125 (1990) (“[T]he constitutional violation actionable under § 1983 is complete when the
wrongful action is taken. A plaintiff . . . may invoke § 1983 regardless of any state-tort
remedy that might be available to compensate him for the deprivation of these rights.”
(citation omitted)). We have nevertheless historically adhered to Fee despite these
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they would not have been sufficient to put Abbott on notice of the illegality
of her conduct at the time of the incident. To defeat a claim of qualified
immunity, the illegality of the conduct must be “clearly established” at the
time it took place.35 It is certainly true that “[b]y now, every school teacher .
. . must know that inflicting pain on a student . . . violates that student’s
constitutional right to bodily integrity.”36 But, for more than thirty years, the
law of this circuit has clearly protected disciplinary corporal punishment
from constitutional scrutiny. Neither Knick nor Kingsley permits us to deviate
from out established precedent in this regard.
B. Statutory Claims
Plaintiffs-Appellants also contend that the district court erred in
dismissing their claims of disability discrimination under the ADA and § 504.
Both the ADA and § 504 generally prohibit discrimination against persons
with disabilities.37 Claims brought under § 504 or the ADA, or both, are
subject to the same analysis. “The only material difference between the two
provisions lies in their respective causation requirements.”38 “Cases
concerning either section apply to both.”39
pronouncements, and nothing about Knick in particular warrants the about-face reversal of
our decades-old rule, at least not without en banc consideration.
35
Taylor Indep. Sch. Dist., 15 F.3d at 454.
36
Moore, 233 F.3d at 875.
37
D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir.
2010).
38
Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (explaining
that a § 504 claim requires that the discrimination be “solely by reason” of the disability,
whereas an ADA claim does not require the same) (emphasis omitted) (quoting 29 U.S.C.
§ 794(a)).
39
Doe v. Columbia-Brazoria Indep. Sch. Dist. by & through Bd. of Tr., 855 F.3d
681, 690 (5th Cir. 2017).
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To prevent dismissal, a plaintiff must allege sufficient facts to show:
“(1) that he is a qualified individual . . .; (2) that he is being excluded from
participation in, or being denied benefits of, services, programs, or activities
for which the public entity is responsible, or is otherwise being discriminated
against by the public entity; and (3) that such exclusion, denial of benefits, or
discrimination is by reason of his disability.”40 A plaintiff need not identify
an official policy to sustain such a claim, and a public entity may be held
vicariously liable for the acts of its employees under either statute.41
Evidence of intentional discrimination is necessary to support a claim for
monetary damages, but a plaintiff seeking only equitable relief may succeed
on a disparate impact theory.42
Plaintiffs-Appellants’ theory of liability for these claims is hardly
evident from the face of their complaint. On appeal, however, they stress that
their discrimination claims are based on (1) Abbott’s physical acts against
T.O. on January 31, 2017; (2) FBISD’s failure to ensure that Abbott knew
how to approach the situation; (3) FBISD’s failure to investigate the
incident; and (4) FBISD’s failure to discipline Abbott.43
The trouble is that none of the factual allegations contained in the
complaint permit the inference that T.O. was ever discriminated against
because of his disability. With respect to vicarious liability for Abbott’s
40
Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 672–73 (5th Cir. 2004). Unlike
the ADA, § 504 is applicable only to entities receiving federal funds. See Pace v. Bogalusa
City Sch. Bd., 403 F.3d 272, 291 (5th Cir. 2005). The applicability of § 504 is not disputed
in this case.
41
Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574–75 (5th Cir. 2002).
42
Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 574 (5th Cir.
2018).
43
It is undisputed that T.O. is a qualified individual under the statutes.
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involvement in the physical altercation, the only allegations linking Abbott’s
conduct to T.O.’s disability are conclusional ones that cannot withstand Rule
12(b)(6) scrutiny.44 The complaint is devoid of any allegations concerning
FBISD’s failure to properly train Abbott,45 and the complaint acknowledges
that FBISD conducted at least three investigations into the incident.
Plaintiffs-Appellants’ assertion that these investigations were “designed to
exonerate” Abbott and FBISD from liability are legal conclusions, not factual
allegations that support their claim. Lastly, with respect to FBISD’s alleged
failure to discipline Abbott following the incident, there are no allegations
that permit the inference that this decision was made because of T.O.’s
disability status. In sum, the amended complaint contains no factual
allegations that permit the inference that either Abbott’s actions or FBISD’s
failure to train, investigate, or discipline Abbott, were “by reason of his
disability”—an essential element of a discrimination claim.
C. Leave to Amend
Plaintiffs-Appellants lastly contend that the district court erred by
denying them leave to amend their complaint. Federal Rule of Civil
Procedure 15 provides that, even though leave of court is required when a
party seeks to amend a pleading after the time for amending as a matter of
course has passed, “[t]he court should freely give leave when justice so
requires.”46 When, however, a party seeks to amend pleadings in a fashion
44
For example, Plaintiffs-Appellants allege that Abbott intervened because she was
“angered by T.O.’s disabilities and that he was being treated in compliance with his
Behavioral Intervention Plan” and that she was “motivated by . . . prejudicial animus to his
disabilities” but then provide no factual allegations to support those allegations and
conclusions.
45
In fact, the complaint notes that Abbott claims to have been trained in proper
restraint techniques.
46
Fed. R. Civ. P. 15(a)(2).
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that would alter a deadline imposed by a scheduling order, Rule 15 is
superseded by Rule 16, which requires good cause and the judge’s consent
for modification.47 Whether good cause exists depends on “(1) the
explanation for the failure to timely move for leave to amend; (2) the
importance of the amendment; (3) potential prejudice in allowing the
amendment; and (4) the availability of a continuance to cure such
prejudice.”48 “If a party shows good cause for missing the deadline, then the
‘more liberal standard of Rule 15(a) will apply to the district court’s denial of
leave to amend.’”49
Plaintiffs-Appellants sought leave to file a second amended complaint
more than seven months after the scheduling order’s deadline for amending
pleadings had passed. The proffered second amended complaint contained
additional allegations about (1) statements Abbott made during the incident;
(2) details of FBISD’s investigation of the incident; and (3) FBISD’s history
of “underserving its students in need of special education services.”
Additionally, the proposed amendment asserts for the first time that FBISD
violated the ADA and § 504 by failing to hold a “section 504 referral”
meeting with T.O.’s parents in a timely manner.
We cannot hold that the district court abused its discretion by denying
leave to amend. The proposed complaint expands on statements made by
Abbott and T.O.’s aide at the time of the incident—information Plaintiffs-
Appellants had at their disposal when they filed the original and first
47
FED. R. CIV. P. 16(b)(4); see S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA,
315 F.3d 533, 536 (5th Cir. 2003).
48
Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010) (internal
quotation marks and citation omitted).
49
Filgueira v. U.S. Bank Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (quoting
Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008)).
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amended complaints. Further, the alleged failure to hold a § 504 referral
meeting occurred in 2016, well before the incident underlying the original
complaint. Similarly, two of the media articles cited in support of FBISD’s
history of mistreating students with disabilities were published before the
deadline for amendments passed. Simply put, it is difficult to conceive of a
reason why Plaintiffs-Appellants would not have been able to amend their
complaint to include these various allegations in a timely manner. Because
good cause did not exist, the district court did not abuse its discretion in
denying leave to file the proposed amended complaint.
IV. CONCLUSION
For the foregoing reasons, all rulings of the district court are
AFFIRMED.
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Wiener, Circuit Judge, with whom Judge Costa, Circuit Judge, joins,
specially concurring:
Twenty years ago, I called for en banc reconsideration of Ingraham v.
Wright, 525 F.2d 909 (5th Cir. 1976) (en banc), aff’d, 430 U.S. 651, and Fee
v. Herndon, 900 F.2d 804 (5th Cir. 1990), in which we held that injuries re-
sulting from corporal punishment do not violate the Fourteenth Amendment
as long as the forum state provides adequate alternative remedies.1 I write
separately today to re-urge the same, hoping that the intervening decades of
experience will have persuaded my colleagues that the rule is not only unjust,
but is completely out of step with every other circuit court and clear direc-
tives from the Supreme Court.
At the time I concurred in Moore, our circuit was already isolated in its
position, with the Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and
Eleventh Circuits all holding that corporal-punishment-related injuries im-
plicate constitutional rights regardless of the availability of state remedies.2
1
See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876–80 (5th Cir. 2000) (Wiener,
J., specially concurring).
2
Which constitutional rights are violated by excessive corporal punishment is
another matter. The Third, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits analyze
such claims under the Fourteenth Amendment and require a student to demonstrate that
the punishment “shocked the conscience” in order to prevail. Metzger by & through Metzger
v. Osbeck, 841 F.2d 518, 520 (3d Cir. 1988) (holding that excessive corporal punishment
violates substantive due process); Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980) (same);
Saylor v. Bd. of Educ. of Harlan Cnty., Ky., 118 F.3d 507, 514 (6th Cir. 1997) (same); Wise v.
Pea Ridge Sch. Dist., 855 F.2d 560, 564 (8th Cir. 1988) (same); Garcia by Garcia v. Miera,
817 F.2d 650, 654 (10th Cir. 1987) (same); Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229
F.3d 1069, 1074 (11th Cir. 2000) (same). The Seventh and Ninth Circuits, in contrast,
consider corporal punishment to constitute a “seizure” and thus ask whether the
punishment was objectively unreasonable under the Fourth Amendment. See Wallace by
Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1016 (7th Cir. 1995); Preschooler II v. Clark
Cnty. Sch. Bd. of Tr., 479 F.3d 1175, 1182 (9th Cir. 2007).
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Since then, the Second Circuit has joined the fray, siding with the majority.3
These cases, like our own, rely on the Supreme Court’s acknowledgement in
Ingraham that “corporal punishment in public schools implicates a constitu-
tionally protected liberty interest.”4 In Ingraham, the Supreme Court held
that procedural due process rights were not violated by corporal punishment
if alternative remedies existed, but declined to consider whether such pun-
ishment implicated substantive due process rights.5 Unlike this court, all
other circuit courts have declined to apply Ingraham’s procedural due pro-
cess reasoning to substantive due process claims, instead concluding that un-
der particular circumstances, excessive corporal punishment can violate sub-
stantive due process rights (or Fourth Amendment rights), regardless of the
availability of alternative remedies.
The Supreme Court has yet to be called on to resolve this dramatically
lopsided circuit split, but it is only a matter of time. More importantly, sub-
sequent writings by the Supreme Court highlight a major problem in the rea-
soning we applied in Ingraham and Fee. Specifically, the Supreme Court has
made it clear that the availability of state remedies does not replace a cause of
action under § 1983. In Parratt v. Taylor,6 and Hudson v. Palmer,7 the Su-
preme Court held that an individual deprived of a constitutionally protected
3
See Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d
Cir. 2002) (concluding that excessive corporal punishment violates substantive due
process). Only the First and D.C. Circuits have yet to address the issue.
4
430 U.S. at 672. In Ingraham, the Supreme Court affirmed the Fifth Circuit’s en
banc decision with respect to the procedural due process question but denied cert. on the
substantive due process issues.
5
Id.6
451 U.S. 527 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S.
327 (1986).
7
468 U.S. 517 (1984).
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property interest by the random and unathorized act of a state actor could not
bring procedural due process claims under § 1983 unless the forum state
failed to provide adequate post deprivation remedies. Notably, the Supreme
Court in Parratt approvingly cited its own ruling in Ingraham, affirming that
Ingraham’s reliance on the availability of post-deprivation remedies was
properly cabined to procedural due process claims.8 The theory underlying
Parratt/Hudson and their progeny is that a procedural due process violation
challenges not the deprivation itself, but merely the procedure (or lack
thereof) according to which the deprivation occurs.
But a substantive due process violation is fundamentally different, in-
somuch as a § 1983 substantive due process action challenges not the proce-
dure attendant to the deprivation, but the deprivation itself. The Supreme
Court stressed this distinction in Zinermon v. Burch,9 in which it explained
that, with respect to substantive due process claims, “the constitutional vio-
lation actionable under § 1983 is complete when the wrongful action is taken.
A plaintiff . . . may invoke § 1983 regardless of any state-tort remedy that
might be available to compensate him for the deprivation of these rights.”10
In other words, while a procedural due process violation may be eliminated
by an adequate, state-provided, post-deprivation process, a substantive due
process violation occurs at the moment of the deprivation itself, making the
availability of alternative remedies wholly irrelevant.
Fee, decided just three months later, makes no mention of Zinermon’s
explicit pronouncement, instead citing this circuit’s decision in Ingraham,
8
Parratt, 451 U.S. at 542 (noting that its analysis was “quite consistent with the
approach taken by [the Supreme Court] in Ingraham,” which arguably involved “facts . . .
more egregious than those presented here”).
9
494 U.S. 113 (1990).
10
Id. at 125.
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among others, for the proposition that the existence of state remedies fore-
closes any substantive due process violations in an educational context.11
Nevertheless, this circuit has repeatedly recognized that Parratt/Hudson’s
focus on alternative remedies is inapplicable to substantive due process
claims in other contexts.12 In other opinions, we have recognized that Fee’s
reasoning is in conflict with Zinermon.13
11
See 900 F.2d at 810 (“We hold only that since Texas has civil and criminal laws
in place to proscribe educators from abusing their charges, and further provides adequate
post-punishment relief in favor of students, no substantive due process concerns are
implicated because no arbitrary state action exists.”).
12
See Cozzo v. Tangipahoa Par. Council--President Gov’t, 279 F.3d 273, 290 (5th Cir.
2002) (“[V]iolations of substantive due process rights do not fall within the doctrine's
limitations.”); Davis v. Bayless, 70 F.3d 367, 375 (5th Cir. 1995) (“[T]he Parratt–Hudson
doctrine can only be applied to negate an alleged violation of procedural due process.”);
Arnaud v. Odom, 870 F.2d 304, 310 (5th Cir. 1989) (“[T]he availability of state
postdeprivation tort claims to Tolliver and Felix to remedy the injuries asserted by Tolliver
and Felix in their complaint are not relevant to the instant substantive due process
inquiry.”); Augustine v. Doe, 740 F.2d 322, 327 (5th Cir. 1984) (noting that the “availability
of notice and a hearing is therefore irrelevant” to substantive due process claims);
Chambers v. Stalder, 999 F.2d 1580, 1993 WL 307855, at *3 (5th Cir. 1993) (unpublished)
(“Parratt does not affect our analysis when a plaintiff brings a § 1983 claim under the Due
Process Clause of the Fourteenth Amendment, alleging violations of rights defined in the
Bill of Rights or challenging the conduct of state actors under the substantive component
of the Due Process Clause.”).
13
See, e.g., Clayton ex rel. Hamilton v. Tate Cnty. Sch. Dist., 560 F. App’x 293, 297–
98 & n.1 (5th Cir. 2014) (unpublished) (acknowledging that in Zinermon, the Supreme
Court noted that a plaintiff may bring claims under § 1983 regardless of post deprivation
remedies, but nevertheless dismissing a student’s corporal-punishment related claims
under Fee because it was “bound to apply this circuit’s precedent”); see also Moore, 233
F.3d at 877 (Wiener, J., specially concurring) (questioning the validity of the Fifth Circuit’s
precedent in light of Zinermon); see also Deana Pollard Sacks, State Actors Beating Children:
A Call for Judicial Relief, 42 U.C. DAVIS L. REV. 1165, 1186 (2009) (calling the Fifth
Circuit’s approach “a position contrary to Supreme Court precedent”).
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For the foregoing reasons, I remain firm in my conviction that Fee and
Ingraham were wrongly decided—a conviction that has only grown stronger
with the clarity of hindsight and thirty years of watching this rule being ap-
plied to the detriment of public school students in Texas, Mississippi, and
Louisiana.14 This rule flies in the face of the many decisions by our colleagues
in other circuits and those sitting on the highest court of this land. Let us fix
the error before the Supreme Court decides to fix it for us.
14
As I mentioned in Moore, I am skeptical that the state remedies are adequate,
because “Texas school districts generally do have state-law governmental immunity from
tort claims brought by injured students.” 233 F.3d at 878 (Wiener, J., specially concurring)
(citing Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex. 1978)).
19