Morris v. Dearborne

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40488

JIM MORRIS, Individually and as Next Friend of
Hilary Faith Morris, a Minor; GLORIA MORRIS,
Individually and as Next Friend of
Hilary Faith Morris, a Minor,

Plaintiffs-Appellees,

VERSUS

CHARLOTTE HAWKINS DEARBORNE, ET AL.,

Defendants,

CHARLOTTE HAWKINS DEARBORNE, Individually
and in her official capacity as a Teacher for
Whitehouse Independent School District,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Texas
July 16, 1999

Before JOLLY, WIENER, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiffs Jim and Gloria Morris, individually and on behalf

1
of their minor daughter, Hilary Faith Morris,1 brought suit against

defendants for separating the family for a period of three years

during an investigation of possible child abuse. Appellant

Charlotte Hawkins Dearborne (“Dearborne”) brings this interlocutory

appeal challenging the district court’s denial of her motion for

summary judgment based on qualified and statutory immunity in

reporting possible abuse of Hilary, who was one of her students.

We affirm in part, reverse in part, and remand this case to the

district court for further proceedings.

I. FACTUAL & PROCEDURAL BACKGROUND

Because this is an interlocutory appeal from a denial of

summary judgment, the following recitation of facts accepts the

Plaintiffs’ evidence and reasonable inferences drawn from it as

true and should not be construed as expressing any view as to the

weight or credibility of their evidence. See Salas v. Carpenter,

980 F.2d 299, 304 n.3 (5th Cir. 1992).

In September 1992, Jim and Gloria Morris enrolled their four-

year old daughter, Hilary, at Cain Elementary School in the

Whitehouse Independent School District (“WISD”) for the purpose of

obtaining speech therapy for the child. Hilary had been diagnosed

as having elective mutism; she was able to speak, but refused to do

so. The child had been receiving treatment for this condition at

1
The child plaintiff's name is spelled “Hillary” and “Hilary” in
the briefs and record. We will refer to her in this opinion as
“Hilary.”

2
the firm of Counseling, Testing, and Psychological Services

(“CTPS”). On September 16, 1992, without the parents’ permission

or knowledge, the child’s teacher, Appellant Dearborne, had Hilary

use a machine called a Facilitative Communicator (“FC”), a device

not unlike a word processor, following a routine known as

Facilitated Communication.2 In this process, a person known as a

“facilitator” supports the arm of a developmentally disabled or

mechanically deficient individual so as to allow that individual to

type. The process was known to be highly controversial at the

time, in large part because of the obvious fear, borne out by

numerous studies, that the facilitator, and not the typist, would

control the output.3 Furthermore, the Plaintiffs allege that the

machine, and the technique, about which Dearborne had received one

day of training, is not to be utilized with children as young as

2
Facilitated Communication, the process, and a Facilitative
Communicator, the machine used in the process, will both be
referred to interchangeably as “FC.”
3
See Callahan v. Lancaster-Lebanon Intermediate Unit 13, 880 F.
Supp. 319 n.14 (E.D. Pa. 1994), for a thorough collection of
sources regarding FC, including the following policy statement
issued by the American Academy of Child and Adolescent Psychiatry,
October 20, 1993:
Facilitated Communication (FC) is a process by which a
“facilitator” supports the hand or arm of a communicatively
impaired individual while using a keyboard or typing device.
It has been claimed that this process enables persons with
autism or mental retardation to communicate. Studies have
repeatedly demonstrated that FC is not a scientifically valid
technique for individuals with autism or mental retardation.
In particular, information obtained via FC should not be used
to confirm or deny allegations of abuse or to make diagnostic
or treatment decisions.

3
the plaintiff child or with children who have the mechanical

ability to type on their own. The device serves no purpose when

used with individuals who are not yet literate.

During the initial session with Hilary, which was also

Dearborne’s first attempt to use FC with a student, Dearborne

guided Hilary’s hand to type a printout containing allegations of

sexual abuse against her parents. At that time, Hilary could not

read or write, and did not even know all the letters of the

alphabet. While the teacher guided the child's hand, a number of

sexually explicit and graphically violent phrases were typed.

As the only method used to test the accuracy and reliability

of the FC process, Dearborne asked Hilary to type the words “LAUREN

IS YOUR DAUGHTER.”4 With Dearborne assisting in typing, Hilary

typed the sentence with correct spelling, “in a flash.” Although

Dearborne was familiar with double-blind studies5 and the risk of

facilitator influence, she conducted no reliable test to determine

her own influence on the output, stating that she was too busy to

conduct such tests.

Dearborne and WISD contacted the Texas Department of

Protective & Regulatory Services (“TDPRS”), but not the plaintiff

parents, about the alleged sexual abuse of Hilary. The following

4
The FC machine only printed in uppercased letters without
punctuation.
5
Double blind studies in the FC context involve the facilitator
looking away from the screen during the process to help rule out
facilitator influence.

4
day, September 17, 1992, an employee of TDPRS and a sheriff’s

deputy came to Dearborne’s classroom. They interviewed the child

and observed an FC session, during which it was abundantly clear

that Dearborne was producing the messages. Plaintiffs allege that

defendants below were incompetent to operate the machine, and that

the session was guided by a desire to achieve the result sought by

the defendants. The session produced a printout that again

implicated the parents, using compound predicates and correctly

spelled anatomical terms for genitalia.

On the basis of these readouts, the child was removed from her

parents’ custody, and TDPRS initiated a suit to permanently

terminate parental rights. Examinations by two physicians revealed

no evidence of sexual abuse. TDPRS then contracted with CTPS to

provide therapy for the child and to further test the allegations.

Plaintiffs recount that, for eight months, the minor Plaintiff was

exposed to explicit sexual language and behavior, and that this

treatment was only terminated by reason of the Plaintiffs’

insistent and persevering efforts.

Also, during this time, from September 1992, until May 1993,

against the instructions of the TDPRS officer involved in Hilary’s

case, the child’s foster parent, and Karen Goforth (a counselor at

CTPS), Dearborne continued to conduct FC sessions with the child,

during which graphic themes of sexual conduct and violence were

explored. The child was seated on Dearborne’s lap during at least

one session. One session had the four-year-old child, who could

5
spell only her own name, and that only with assistance, writing the

complex phrase, “JACK EQUALS JIM.” In another, the child

supposedly wrote, “ALWAYS BELIEVE ME ALWAYS.” When Dearborne

suggested to the child that it would be good if they typed every

day, the child reportedly typed, “YES IT WOULD I WANT TO TELL ABOUT

JIM BUT THE WORDX [sic] WONT COME OUT.” With Dearborne’s guidance,

the child wrote, “PENIS,” “VAGINA,” “F****ED,” “SCARED,” and the

phrases, “SON OF A BITCH,” “AM I CRAZY,” and “SICK IN MYT [sic]

SOUL ALWZAYS [sic] FRIGHTENED.” The sessions also included matter

showing that the child had multiple identities, one of whom was

referred to as “JEZIBEL.” This reference was not the sole

religious item explored. Once when the child purportedly typed,

“SAID A PRAYWER [sic] FOR MYSELF,” Dearborne responded, “GOD GIVES

COMFORT AND SAFETY. I HAVE SAID LOTS OF PRAYERS FOR YOU.” Under

the teacher’s guidance, the four-year old supposedly answered,

“THANK YOU ALSIO [sic] FOR SAVING MY LIFE.” Despite the mandates

to stop, Dearborne conducted a total of eight sessions with the

child. She also contacted the child’s foster parent, urging that

they do everything possible to ensure that the child not be

returned to her parents.

Others attempted to conduct FC with Hilary but attained no

results. Once when the child typed, “MGXAEER,” she told Karen

Goforth that it spelled, “Momma, I love you.” When showed

anatomical correct figures of the human body during a session at

CTPS, Hilary only referred to the male’s genitalia as a “dangy” and

6
the female’s as a “yah.” Only Dearborne could produce any legible

results from the FC, and only Dearborne with the help of FC could

get the child to use anatomically correct sexual terms. During

another of the sessions, it was observed that the child was not

looking at the keyboard while she typed, and that the output would

change when Dearborne was not looking at the screen. It was also

noted that Dearborne was supporting the child’s wrist and erasing

letters allegedly typed by the child. Those observing the pre-

schooler within the few months after she was taken from her parents

noted that she could not read. Polly Yeager, a relative of

Plaintiff Gloria Morris, informed WISD Superintendent, Marshall

Neill, as early as October 1992, that the child could not read or

write the messages attributed to her. Yeager presented Neill with

a writing sample, in which the child was barely able to write her

own name. Additionally, Hilary had no motor skill defect that

required her to be assisted in typing. Despite this, and despite

WISD’s policy that the FC was not to be used on children without

motor skill deficiencies, WISD, through Neill, chose to do

virtually nothing. By reason of the further efforts of Dearborne,

WISD, and the TDPRS, the Plaintiffs lost custody of their daughter

for a period of almost three years.

Plaintiff Jim Morris was precluded from having any contact

with his daughter until September 6, 1995, a period of

approximately 36 months. In the meantime, Plaintiff Gloria Morris

was allowed supervised visits with her daughter. TDPRS finally

7
allowed the child to return home and dismissed the termination suit

without prejudice. The agency continues to maintain that the

plaintiff parents molested their child, and the family remains

under TDPRS supervision. Plaintiff Jim Morris lost his job as a

juvenile detention officer because of the accusations and

Plaintiffs maintain that the charges of abuse destroyed their

marriage.

Following return of their child, Plaintiffs filed the action

below alleging, pursuant to 42 U.S.C. § 1983, deprivations of

procedural and substantive due process rights, sexual harassment

under Title IX, 20 U.S.C. § 1681, et seq., violations of the

Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C.

§ 1400, et seq., negligence, and intentional torts.

Dearborne moved for summary judgment and dismissal of

Plaintiffs’ suit for failure to state a claim upon which relief can

be granted. See FED.R.CIV.P. 56; 12(b)(6). In her motion she

asserted the affirmative defenses of qualified immunity, statutory

immunity, and the statute of limitations, as well as challenged the

evidentiary and legal bases of claims made by Plaintiffs under

Title IX and the IDEA.

The district court granted Dearborne’s motion for summary

judgment as to Plaintiff’s Title IX claims, but denied it as to all

other claims. Dearborne contends that the district court erred in

not granting her motion as to all of Plaintiffs' claims and now

8
brings the instant appeal.

II. Jurisdiction and Standard of Review

At the outset, we note that we have jurisdiction over this

appeal to the extent that it turns upon questions of law and not of

fact. See Johnson v. Jones, 515 U.S. 304, 310-12 (1995); Mitchell

v. Forsyth, 472 U.S. 511, 528 (1985); Hassan v. Lubbock Indep.

School Dist., 55 F.3d 1075, 1078 (5th Cir. 1995). We review the

district court’s denial of summary judgment de novo, applying the

same standard as the district court. See Hassan, 55 F.3d at 1079.

Summary judgment is appropriate only if the record viewed in the

light most favorable to the non-movant discloses “that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law”. FED.R.CIV.P. 56(c); see

id.

III. DISCUSSION

A. Plaintiffs' Claims under 42 U.S.C. § 1983

The Plaintiffs brought claims pursuant to 42 U.S.C. § 1983

alleging that Dearborne violated their substantive due process

rights to maintain family integrity and Hilary’s right to be free

from sexual harassment, as well as their procedural due process

right to be consulted prior to the use of FC in Hilary's

individualized educational program. Dearborne asserts that she is

entitled to qualified immunity on Plaintiffs’ due process claims,

and that the district court erred in not granting her summary

9
judgment on that basis.

As a general rule, government officials performing

discretionary functions are entitled to qualified immunity. See

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified, or

“good faith” immunity, shields officials from civil damages

liability as long as their actions could reasonably have been

thought consistent with the rights they are alleged to have

violated. See id. Whether an official generally protected by

qualified immunity may be held personally liable for an allegedly

unlawful action turns on the “objective legal reasonableness” of

the action, assessed in light of the legal rules that were “clearly

established” at the time it was taken. Anderson v. Creighton, 483

U.S. 635, 639 (1987)(quoting Harlow, 457 U.S. at 818-819).

As a threshold matter, in assessing a claim of qualified

immunity, we engage in a three-part analysis.6 The first inquiry

is whether the plaintiffs have asserted a violation of a

constitutional right at all. See Siegert v. Gilley, 500 U.S. 226,

232 (1991); Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993).

Secondly, in analyzing the specific conduct at issue, we must

determine whether the constitutional right was clearly established

6
Liability under § 1983 also requires a showing that the alleged
deprivation of a constitutional right was committed by a person
acting under color of state law. See West v. Atkins, 487 U.S. 42,
48 (1988). The parties do not dispute that Dearborne's actions,
made the subject of this suit, were taken under color of state law.

10
at the time the defendant acted. See Siegert, 500 U.S. at 232. If

the law was not clearly established, an official could not

reasonably be expected to anticipate subsequent legal developments,

nor could she fairly be said to “know” that the law forbade conduct

not previously identified as unlawful. However, “[t]his is not to

say that an official action is protected by qualified immunity

unless the very action in question has previously been held

unlawful; but it is to say that in the light of pre-existing law

the unlawfulness must be apparent.” See Anderson, 483 U.S. at 640

(internal citations omitted). We have also noted that the term

“clearly established” does not necessarily refer to commanding

precedent that is factually on all-fours with the case at bar or

that holds that the very action in question is unlawful. See

Jefferson v. Ysleta Indep. School Dist., 817 F.2d 303, 305 (5th

Cir. 1987). The constitutional right is clearly established if the

unlawfulness of the conduct would be apparent to a reasonably

competent official. See Doe v. Taylor Indep. School Dist., 15 F.3d

443, 455 (5th Cir. 1994)(en banc). “Further, the applicable law

that binds the conduct of officeholders must be clearly established

at the very moment that the allegedly actionable conduct was

taken.” Stem v. Ahearn, 908 F.2d 1, 5 (5th Cir. 1990). Courts

cannot use the luxury of hindsight to support a finding of

unreasonableness in light of case law published after the acts in

question took place. See Stem, 908 F.2d at 5; see also Harlow, 457

11
U.S. at 818. Finally, “we must determine whether the record shows

that the violation occurred, or at least gives rise to a genuine

issue of material fact as to whether the defendant acutally engaged

in the conduct that violated the clearly-established right.” Kerr

v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999)(quotation and citation

omitted). This third prong is not in issue, as Dearborne does not

challenge on appeal the core facts pleaded by Plaintiffs – her role

in the use of the FC, the contents of the FC printouts, or the

resulting removal of Hilary from her home.

If we find that the official’s conduct violated clearly

established law, we then consider whether the conduct was

objectively unreasonable. See Spann v. Rainey, 987 F.2d 1110, 1114

(5th Cir. 1993).

Dearborne contends that she is entitled to qualified immunity

because her actions did not violate clearly established law and

that her actions were objectively reasonable under the

circumstances. Accordingly, we will now consider her contention

that the district court erred in not granting her qualified

immunity from Plaintiffs’ due process claims.

1. The Right to Bodily Integrity and Freedom From Sexual

Harassment

Plaintiffs claim that Hilary's substantive due process right

to bodily integrity and her right to be free of sexual harassment

were violated by Dearborne. The district court denied Dearborne's

12
motion for summary judgment on these claims, finding that the

child's bodily integrity was implicated by the FC sessions during

which she was seated on her teacher's lap, her hand was guided by

her teacher and she was exposed to vulgar and threatening messages.

Dearborne challenges this holding, arguing that the touching

alleged was innocuous and that, according to the Plaintiffs'

version of the facts, Hilary did not understand the messages.

Plaintiffs liken Hilary's treatment to that of a child who was

sexually molested by a teacher in Doe v. Taylor Indep. School

Dist., 15 F.3d 443 (5th Cir. 1994), or a child who was lashed to a

chair for two days in Jefferson v. Ysleta Indep. School Dist., 817

F.2d 303 (5th Cir. 1987). However, these cases are so far removed

factually from the circumstances of the case at bar that they do

not inform our decision. Both Doe and Jefferson involved

interference with a child's physical well being that posed a grave

risk of damage. Sitting on a teacher's lap, typing messages that

are incomprehensible does not pose such a threat. There is no

basis in logic or precedent for the proposition that the

constitutional protection of bodily integrity and freedom from

sexual harassment prohibit a teacher from holding a preschool child

in her lap, guiding her arm or typing words that the child does not

understand. There is no constitutional prohibition to such contact

between a teacher and a young child. We therefore find that

Dearborne is entitled to qualified immunity from Plaintiffs' claims

13
based on violation of Hilary's right to bodily integrity and her

right to be free of sexual harassment.

2. The Right to Family Integrity

It is clear, and Dearborne does not dispute, that the

constitution protects the right to family integrity. Twenty years

before Dearborne's involvement with the Plaintiffs, the Supreme

Court recognized that the right to family integrity is a form of

liberty guaranteed by the due process clause of the Fourteenth

Amendment. See Stanley v. Illinois, 405 U.S. 645 (1972). In

Stanley, the Supreme Court stated that:

The Court has frequently emphasized the importance of the
family. The rights to conceive and to raise one’s
children have been deemed essential, . . . basic civil
rights of man, . . . and rights far more precious than
property rights. It is cardinal with us that the
custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include
preparation for obligations the state can neither supply
nor hinder. The integrity of the family unit has found
protection in the Due Process Clause of the Fourteenth
Amendment . . . .”

Id. at 651 (internal citations and quotations omitted). Similarly,

in Hodorowski v. Ray, this circuit recognized the “most essential

and basic aspect of familial privacy--the right of the family to

remain together without the coercive interference of the awesome

power of the state.” 844 F.2d 1210, 1216 (5th Cir. 1988)(quoting

Duchesne v. Sugarman, 566 F.2d 817, 825 (2nd Cir. 1977)). In a

case decided just two years prior to the incidents alleged by

Plaintiffs in this case, we considered whether a public school

14
employee’s decision to send her daughter to private school was

afforded protection by the constitution. See Fyfe v. Curlee, 902

F.2d 401, 403 (5th Cir. 1990).

We have no doubt that conduct such as Mrs. Fyfe’s in
transferring her daughter to private school enjoys
constitutional protection. In Brantley v. Surles, 718
F.2d 1354 (5th Cir. 1983), a public school cafeteria
worker was discharged, allegedly because her son attended
a private academy rather than the local public school.
Brantley reinforced the Supreme Court’s longstanding
recognition that the Constitution protects familial
relationships and practices, and that “[t]he parental
interest in direction and control of a child’s education
is central to the family’s constitutionally protected
privacy rights.” Brantley, 718 F. 2d at 1358, citing
Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L.Ed.
1042 (1923). Mrs. Fyfe’s decision to send her child to
a private school was protected under the First Amendment
and the penumbra of familial privacy rights recognized by
the Supreme Court.

Id. at 403. This reaffirmation leaves no doubt concerning the

existence of constitutional protection for families in 1992-93. In

sum, Plaintiffs have alleged a violation of the right to family

integrity which is clearly protected by the Constitution.

3. Substantive due process violations that shock the conscience

The district court held that even if the violations asserted

were not cognizable under a family rights theory, they would offend

Plaintiffs' substantive due process rights because, if proven, they

rise to “a degree of outrageousness and a magnitude of potential or

actual harm that is truly conscience shocking.” Uhlrig v. Harder,

64 F.3d 567, 574 (10th Cir. 1995). The district court found that

Dearborne's alleged conduct would result in grave harm, and, when

15
coupled with proof of a culpable intent, would violate the due

process clause because it violates “those cannons of decency and

fairness which express the notions of justice of the English-

speaking peoples.” Malinski v. New York, 324 U.S. 401, 416-17

(1945).

Dearborne challenges the district court's ruling on

conscience-shocking substantive due process by stating that a

teacher holding a preschool child on her lap and guiding her arm

does not shock the conscience. Further, she argues that taking

custody of a child to protect that child from harm likewise does

not shock the conscience. By assuming, for the purposes of this

appeal, facts different than those alleged in Plaintiffs'

complaint, Dearborne's argument fails to inform the question of

whether the district court's shocks-the-conscience ruling is

legally correct.

When the district court ruled, it did not have the benefit of

County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708

(1998), the Supreme Court's latest application of the shocks-the-

conscience standard to a § 1983 claim of substantive due process

violation arising out of a death following a highspeed police

chase. Lewis reminds us that “the touchstone of due process is

protection of the individual against arbitrary action of

government.” Id. at 1716. “[O]nly the most egregious official

conduct can be said to be arbitrary in the constitutional sense.”

16
Id.(quotations omitted.) Lewis sets out the threshold question:

“whether the behavior of the governmental officer is so egregious,

so outrageous, that it may fairly be said to shock the contemporary

conscience.” Lewis, 118 S. Ct. at 1717 n.8. If this standard is

met, a court must next determine whether there exist historical

examples of recognition of the claimed liberty protection at some

appropriate level of specificity. See id. Because the Supreme

Court determined that the official conduct at issue in Lewis did

not shock the conscience, it provides no further illumination of

this final step in the analysis.

Following Lewis, we have held that “a plaintiff whose claim is

not susceptible to proper analysis with reference to a specific

constitutional right may still state a claim under § 1983 for a

violation of his or her Fourteenth Amendment substantive due

process right, and have the claim judged by the constitutional

standard which governs that right.” Petta v. Rivera, 143 F.3d 895,

901 (5th Cir. 1998). “[T]he Due Process Clause of the Fourteenth

Amendment was intended to prevent government from abusing its

power, or employing it as an instrument of oppression.” Collins v.

City Harker Heights, Texas, 503 U.S. 106, 126 (1992)(quotation

omitted). Once we determine whether a plaintiff's substantive due

process right was violated by abusive, irrational or malicious

abuse of government power that shocks the conscience, we must

assess what clearly established legal standards governed the

17
defendant's actions at the time of the incident at issue. See

Petta at 901-03.

Applying Lewis and Petta to the case at bar, we conclude that

the district court was correct in holding that a teacher's

fabrication of sexual abuse against a student's father shocks the

contemporary conscience. In effect, Plaintiffs maintain that

Dearborne utilized the highly controversial FC device as a tool for

concocting her story of child abuse. The device was never intended

to be used on a four-year-old child who could neither read nor

write, who did not know all of the alphabet and who had no physical

impairment. To contend that when such a child was placed on

Dearborne's lap in front of the facilitator with Dearborne guiding

her hand, she somehow became transformed into a literate person

possessed with a rich vocabulary and the ability to express

understanding of complex sexual and religious concepts not only

defies human experience, it reveals the truth of what was really

transpiring. Based on the summary judgment evidence in this

record, a rational jury could conclude that the typed words were

Dearborne's, not Hilary's and that they revealed the content of

Dearborne's mind, not the life experiences of the child. Such

behavior is an abusive, irrational, malicious, and oppressive use

of governmental power. It is beyond purview that any rational

teacher could believe that governmental destruction of a family

based on fabricated evidence is constitutionally allowed. See

18
Stanley, 405 U.S. at 651.

4. Were Plaintiffs' rights clearly established?

Having determined that Plaintiffs have alleged a deprivation

of constitutional rights, we must next consider whether those

rights were clearly established at the time of Dearborne's conduct.

See Lewis, 118 S. Ct. at 1714 n.5 (1998).

Although constitutionally protected, the rights to family

integrity and to be free of conscience-shocking governmental action

are not absolute or unqualified. See Lehr v. Robertson, 463 U.S.

248, 256, 103 S.Ct. 2985, 2990-91 (1983)(holding that the

relationship between a parent and child merits constitutional

protection in “appropriate cases”). States can adopt necessary

policies to protect the health, safety, and welfare of children.

See Prince v. Massachusetts, 321 U.S. 158, 166 (1944)(“the family

itself is not beyond regulation in the public interest”). Where a

parent has mistreated a child, the state may intervene to protect

the child, including, when necessary, separating the child from the

parents or even permanently terminating the parent-child

relationship. See Stanley, 405 U.S. at 652 (“We do not question .

. . that neglectful parents may be separated from their children.”)

Dearborne acknowledges that the Plaintiffs have a

constitutional right to family integrity, but argues that her

actions fell within the exception carved out for state actors

intervening to protect a child from abuse. Alternatively, she

19
argues that the line of demarcation between the right and the

exception was not sufficiently clear during 1992-93 to allow a

reasonable teacher to conform her behavior to constitutional

standards in the context of Hilary's case.

Dearborne’s success in this appeal hinges, in large part, upon

the degree of fit between the facts of this case and our opinions

in Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988), Doe v. State

of La., 2 F.2d 1412 (5th Cir. 1993) and Kiser v. Garrett, 67 F.3d

1166 (5th Cir. 1995), where we found that social workers are

entitled to qualified immunity for actions taken during the course

of investigating allegations of child abuse for periods of time

ranging from one weekend to four months.7

7
Although Plaintiffs’ pleadings and the district court opinion
discuss this issue in terms of the substantive due process right to
family integrity, we note that some of the authority cited is
bottomed on Procedural Due Process Clause analysis. The Fourteenth
Amendment’s Procedural Due Process Clause grants parents the right
to fundamentally fair procedures before having their child removed
their home. See Santosky v. Kramer, 455 U.S. 745, 753-54 (1982).
Arguably, the Plaintiffs in the case at bar were deprived of
fundamentally fair procedures when Dearborne, a state actor,
intentionally sought to have fraudulent evidence introduced into
the procedures that the state did provide prior to the removal of
Hilary from their home.
In Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988), we dealt
with a Procedural Due Pocess Clause challenge, but the facts of
that case did not involve any misuse of the juridicial process.
Rather, the defendants had removed the children without first
obtaining a court order. Further, the Procedural Due Process
Clause claim in Kiser v. Garrett, 67 F.3d 1166, 1173-74 (5th Cir.
1995), was grounded on the state’s failure to disclose exculpatory
evidence, unlike Dearborne’s alleged intentional abuse of the
judicial process. Because the issue was not developed in the
distirct court nor on appeal, and because procedural due process
analysis in the cases cited by Dearborne are easily distinguishable

20
 Dearborne relies on Doe, 2 F.3d 1412, for the proposition that

the contours of the constitutional rights protecting family

integrity were not sufficiently particularized at the time of her

conduct to inform her decisions concerning the Plaintiffs' family.

In Doe, a father sued on behalf of himself and his two minor

children under § 1983 for interference with the right to family

integrity, alleging that two social workers employed by the state

agency charged with investigating child abuse allegations withheld

exculpatory evidence and fabricated evidence which interfered with

his right to the care and custody of his children during a four

month investigation of an abuse report. We held that the social

workers could not have known that their conduct violated the right

of family integrity. See Doe, 2 F.3d at 1418.

Dearborne also relies on our subsequent decision in Kiser v.

Garrett, 67 F.3d 1166 (5th Cir. 1995). In Kiser, a father sued

social workers alleging that they violated his substantive due

process right to family integrity by continuing a child abuse

investigation after they had information that showed he was not the

one who injured the child. Mr. Kiser's ten-week-old son was

removed from his home while child welfare workers investigated

several unexplained bone fractures. Mr. Kiser did not challenge

from the circumstances of this case, we express no opinion about
any potential claim of qualified immunity from a cause of action
for denial of Plaintiffs procedural due process in the state court
child removal proceedings.

21
the constitutionality of the initial removal and investigation, but

rather complained that the investigation went on too long. After

four months, the child was placed with his maternal grandmother and

the Kisers were allowed unlimited supervised visitation. At the

end of six months, the child was returned home. Again we held that

the contours of the right to family integrity were not well-defined

“especially in the context of a state's taking temporary custody of

a child during an investigation of possible parental abuse.” See

id. at 1173.

In deciding Kiser, we relied extensively on our earlier

decision in Hodorowski, 844 F.2d 1210 (5th Cir. 1988). The

Hodorowskis alleged that child protective workers violated their

right to family integrity by removing children from their home for

one weekend without a court order. We noted that Supreme Court

jurisprudence establishing the right of family integrity had been

formulated in the context of state attempts to permanently

terminate parental rights. See id. at 1217 (citing Santowsky, 455

U.S. at 747-48 and Stanley, 405 U.S. at 649). We held that the

social workers could not have known that an attempt to obtain

temporary custody of the Hodorowski children during an

investigation of reported abuse was a violation of the right as

developed in the Supreme Court termination of parental rights

cases. See Hodorowski, 844 F.2d at 1217.

The Original Petition filed by TDPRS sought an order

22
appointing TDPRS temporary managing conservator of Hilary and

states that “efforts will continue to return the child home and

reunite the family, but if this is not possible the [the TDPRS]

asks the Court to terminate the parent-child relationship between

[Plaintiffs] and child. The prayer asks for temporary orders and

on final hearing “such orders affecting or terminating the parent-

child relationship as it finds proper.” Dearborne attempts to

minimize the state's termination pleadings by characterizing them

as “form language” used in every petition filed by TDPRS. This

argument lacks merits. It is clear from the unambiguous language

of the state court pleadings that the State sought, among other

remedies, to permanently terminate the Morris's parental rights.

Moreover, Doe, Kiser and Hodorowski addressed the contours of

the right of family integrity vis-à-vis immunity claimed by state

officials charged with investigating child abuse reports rather

than teachers. Each of the defendants was a child welfare official

whose primary duty was to investigate alleged instances of child

abuse. All the alleged conduct on which the plaintiffs rested

their claims took place after the defendants had received

independent reports of child abuse. In Hodorowski, we grappled

with the appropriate balance between independence for social

workers charged with investigation of child abuse and protection

for family privacy. We noted that other circuits have extended to

such professionals absolute prosecutorial immunity, analogizing

their function to that of executive branch officials who

23
investigate and initiate criminal prosecutions. See Hodorowski,

844 F.2d at 1213 (citing Meyers v. Contra Costa County Department

of Social Services, 812 F.2d 1154 (9th Cir. 1987) and Malachowski

v. City of Keene, 787 F.2d 704 (1st Cir. 1986)). We also

recognized that some courts have afforded absolute immunity to

child protective service workers for policy reasons rather than by

analogy to prosecutors. See id. at 1215 (citing Mazor v. Shelton,

637 F. Supp. 330 (N.D.Cal. 1986); Hennessey v. Washington

Department of Social and Health Services, 627 F. Supp. 137

(E.D.Wash. 1985); and Whelehan v. County of Monroe, 558 F. Supp.

1093 (W.D.N.Y. 1983)). However, we rejected both of those

approaches, concluding that qualified, rather than absolute

immunity strikes the better balance and allows for the evaluation

of the motive for and reasonableness of a welfare worker’s

challenged actions. See id. at 1216.

The constitutional right to family integrity was well

established in 1992. Doe, Kiser and Hodorowski were concerned with

a narrow strip of cases involving child welfare investigative

employees’ power to temporarily, as opposed to permanently, remove

children from their homes. We determined that the facts of those

cases placed them close to the line between the rule – families are

constitutionally entitled to be free of governmental interference

in child raising decisions, and the exception – child welfare

workers can take temporary custody of children about whom they have

24
received reports of abuse in order to guarantee their safety. See

Hodorowski, 844 F.2d at 1217.

Dearborne’s argument misconstrues the significance of our

finding of nebulousness in Hodorowski-type cases. Cases claiming

governmental interference with the right of family integrity are

properly analyzed by placing them, on a case by case basis, along

a continuum between the state’s clear interest in protecting

children and a family’s clear interest in privacy. When the facts

of a case place it in the center of the continuum where the two

interests overlap and create a tension, the right to family

integrity may properly be characterized as nebulous, and thus a

defendant may claim the protection of qualified immunity. However,

when the facts of a case place it squarely on the end of the

continuum where the state’s interest is negligible and where the

family privacy right is well developed in jurisprudence from this

circuit and the Supreme Court, a defendant’s defense of qualified

immunity, based on a claim that the right to family integrity was

not clearly established, will fail.

Here, by contrast, we have neither child welfare investigators

nor a temporary removal. Dearborne’s primary duty is to teach, not

ferret out possible instances of abuse (even though she is, of

course, required to report evidence of apparent abuse). Moreover,

Plaintiffs allege that Dearborne fabricated the evidence of abuse

in the first instance with no prior indication from any other

source that abuse had occurred. Thus, although child welfare

25
agents who (over)zealously follow up independent reports of child

abuse may not have been on notice in 1992 that their actions

violate the constitutional right of the families involved, it can

certainly come as no surprise to Dearborne, a teacher, that she was

not free to manufacture from whole cloth evidence of sexual abuse.

We therefore hold that Plaintiffs' claims fall squarely within

the well established constitutional right to family integrity and

to be free of arbitrary, oppressive governmental action. Hilary's

three year stay in foster care, cut off from all contact with her

father while enduring state-initiated termination proceedings does

not fall within the exception, or even close to the line, that

allows a state to temporarily remove a child from her home for a few

days or a few months to protect her while an investigation of

reported child abuse is conducted. It has been clearly established

for more than twenty years that, outside of the state's intervention

to promote the health and welfare of children, the integrity of a

family unit is protected by the Constitution. Dearborne cannot

claim that because the parameters of the investigative power of

specialized child protective service professionals may have been

unclear, she was unable to determine whether she was free to

fabricate sexual abuse allegations against her student’s parents.

5. Objective Reasonableness

Even if Dearborne's conduct violated a clearly established

constitutional right, she is entitled to qualified immunity if the

conduct was objectively reasonable. See Spann, 987 F.2d at 1114.

26
In short, Dearborne's alleged conduct was not objectively

reasonable. In addition to being a violation of the clearly

established constitutional right to family integrity, it is a

criminal offense in Texas to make a child abuse report that the

person knows is false. See TEX. FAM. CODE § 261.107 (West 1996).8

Dearborne's citation to Texas statutes that require teachers to

report suspected child abuse, Tex. Fam. Code § 261.101-102, and

criminalize failure to report, Tex. Fam. Code § 261.109, are

inapposite to the Plaintiffs' amply supported allegations of false

reporting. Conduct that violates the United States Constitution and

the state's criminal law is not objectively reasonable. Further,

because a reasonable teacher could not have believed that the

actions alleged in this suit promoted Hilary's health or welfare,

qualified immunity arising within that exception does not benefit

Dearborne. See Jefferson, 817 F.2d at 305 (“In determining what a

reasonable teacher should know in this instance, it is not necessary

to point to a precedent which is factually on all-fours with the

case at bar. It suffices that the teacher be aware of general,

well-developed legal principles.”(footnote omitted)).

8
From 1987 through 1995, the Texas statutory provision
criminalizing false reports of child abuse was codified at
V.T.C.A., Family Code § 34.031. The recodification of this
provision in 1995 by the 74th Texas Legislature made no substantive
changes relevant to our discussion.

27
6. Causation

Dearborne9 contends that she merely reported abuse allegations,

while a state court judge made the decision to remove Hilary from

her home and therefore Dearborne did not cause any constitutional

violations. The district court, citing Snell v. Tunnell, 920 F.2d

673, 700 (10th Cir. 1990), stated that direct participation is not

necessary for liability under § 1983. Any official who ‘causes' a

citizen to be deprived of her constitutional rights can also be held

liable. The district court held that the requisite causal

connection is satisfied if the defendant set in motion a series of

events that the defendant knew or reasonably should have known would

cause others to deprive the plaintiff of her constitutional rights.

The district court then concluded its analysis by finding that

Plaintiffs had sufficiently alleged that Dearborne was instrumental

in causing the constitutional violation in issue.

We agree with the district court that in order to establish

Dearborne's liability, the Plaintiffs must prove that she set in

motion events that would foreseeably cause the deprivation of

Plaintiffs' constitutional rights.

Dearborne argues on appeal that even assuming Plaintiffs will

meet their burden on “setting in motion” and “foreseeability,” they

cannot satisfied the causation requirement in this case because of

9
This argument is developed on appeal by the brief submitted by
Amici Curiae Texas Association of School Boards, Texas Association
of School Administrators, Texas Counsel of School Attorneys and
Texas Classroom Teachers Association rather than by Dearborne.

28
the intervention of the state court's independent decision. That

is, there is no genuine issue of fact concerning Dearborne’s

allegation that the state judge's independent decision broke the

causal link between her conduct and the alleged constitutional

violation. Not only does she mischaracterize the evidence in the

record, the one Fifth Circuit case she relies on, Taylor v. Gregg,

36 F.3d 453 (5th Cir. 1994), rather than furthering her position,

directly supports, indeed mandates, the district court's decision

to deny Dearborne summary judgment on the issue of causation.

We begin with the obvious proposition that the question of

causation is “intensely factual.” Savidge v. Fincannon, 836 F.2d

898, 905 (5th Cir. 1988)(reversing a district court decision on

causation in a § 1983 case for failure to hold an evidentiary

hearing). Dearborne contends that it is undisputed that welfare

officials and a state judge independently evaluated the allegations

of sexual abuse, that Dearborne had no control over the ultimate

disposition of the charges and that she simply reported suspected

child abuse as she was required to do under Texas law. The record

does not bear out her characterization of these facts as undisputed.

There is evidence that Dearborne's role was not limited to that of

a mere reporter of suspected abuse. She allegedly created false

evidence that was presented to the state court judge and to child

welfare officials in the first instance. She then continued to

create false evidence after Hilary was removed from the home and any

emergency had passed, in violation of specific instructions to

29
discontinue the use of FC with Hilary, in an attempt to further

influence the results of the state process, thereby compromising the

integrity and independence of the state proceeding.

In Taylor v. Gregg, 36 F.3d 453 (5th Cir. 1994), plaintiffs

brought a § 1983 action against a police officer seeking damages

for, inter alia, false arrest. Dearborne quotes that portion of the

decision which states, “[i]t is well settled” that, if an

“independent intermediary such as a magistrate or grand jury” makes

a decision based on his independent review of the facts, the

intermediary's decision “breaks the chain of causation” and

insulates the initiating party from liability. Id. at 457. The

rationale underpinning the rule is apparent, with the focus being

upon the independent decision making process of a court to

impartially and objectively evaluate the underlying facts and then

to reach its own decision. The reliability of independent judicial

decision making is of course greatly dependent upon the reliability

of the information upon which it conducts its analysis. Taylor goes

on to emphasize that “the chain of causation is broken only where

all the facts are presented to the grand jury or magistrate and the

malicious motive of the officer does not lead him to withhold any

relevant information.” Id. (citing Hand v. Gary, 838 F.2d 1420,

1428 (5th Cir. 1988)). We affirmed the district court's grant of

summary judgment for the defendants in Taylor because the summary

judgment evidence did not create a genuine issue of material fact

30
concerning whether the deliberations of the intermediary were

tainted by the actions of the defendants. Taylor, 36 F.3d at 457.

Applying the lessons of Taylor and Hand to this case, we conclude

that Dearborne was not entitled to summary judgment on the issue of

causation. A fact issue exists regarding the extent to which (if

at all) Dearborne subverted the ability of the court to conduct

independent decision making by providing false information, and in

so doing, withholding true information. The parties will have the

opportunity at trial to develop the facts which will resolve the

question of causation. The fact finder will then be able to

determine the extent to which the welfare officials and the state

court judge relied on Dearborne's representations and the extent to

which she succeeded in her attempt to skew the proceedings.

B. Plaintiffs’ Individuals with Disabilities Education Act Claim

The district court denied Dearborne's motion for summary

judgment on Plaintiffs' claims brought pursuant to the Individuals

with Disabilities Education Act, 20 U.S.C. § 1401 (“IDEA”),10

finding that alleged failures to meet IDEA's procedural requirements

10
Violations of the protections guaranteed by the IDEA may be
pursued through § 1983, which broadly encompasses violations of
federal statutory as well as constitutional law. See Maine v.
Thiboutot, 448 U.S. 1, 4-5 (1980). In addition, parents and
children may bring a civil action pursuant to the IDEA “relating to
the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education to
such child[.]” 20 U.S.C. § 1415(b)(1)(E). Finally, Plaintiffs
allege violations of their procedural due process rights stemming
from the same acts and omissions that form the basis of the IDEA
claim. These three causes of action succeed or fail on the same
bases and are therefore considered together.

31
are adequate grounds for liability. Specifically, Dearborne used

the FC with Hilary although it was not included in Hilary's

individualized education program. According to Plaintiffs, this

violated the IDEA requirement that “written prior notice to the

parents or guardian” be provided whenever a school “proposes to

initiate or change . . . the identification, evaluation, or

educational placement of the child or the provision of a free

appropriate public education to the child.” 20 U.S.C. §

1415(b)(1)(C). Dearborne, while not disputing the Plaintiffs'

factual allegations in this regard, contends that the IDEA does not

require specific devices or methodologies to be included in

individualized education programs.

In our view, both positions miss the mark. The IDEA mandates

a free public education for each child and sets forth procedures

designed to ensure an education that meets minimal requirements.

20 U.S.C. §§ 1412(1) & 1415(a)-(e) The use of FC does not give

rise to a cause of action in this case because of some potential

impact this unique technology had on Hilary's education. Rather,

Plaintiffs' damages arose from the fraudulent use of the FC to

manufacture false allegations of sexual abuse against Hilary's

parents. No one has pointed to, and we are unable to discern, any

provision in the IDEA that provides substantive or procedural

protection against such atrocity. The Plaintiffs' remedy, upon

proving their claims, lies elsewhere. We therefore hold that the

district court erred in denying summary judgment for Dearborne on

32
all claims bottomed on the IDEA.

C. Plaintiffs' State Law Claims

Dearborne asserts state statutory immunity from liability as

to all of Plaintiffs' state claims, citing Texas Education Code

Section, § 22.051(a), a school employee immunity provision. The

Texas Education Code provides:

A professional employee of a school district is not
personally liable for any act that is incident to or
within the scope of the duties of the employee's position
of employment and that involves the exercise of judgment
or discretion on the part of the employee, except in
circumstances in which a professional employee uses
excessive force in the discipline of students or
negligence resulting in bodily injury to students.

TEX. EDUC. CODE § 22.051(a).

The parties do not dispute that Dearborne was an employee of

the school district or that she was acting within the scope of her

duties. Rather, they differ on the issue of whether Dearborne's

alleged actions should be classified as ministerial acts outside of

her statutorily protected discretion. A ministerial act is an act

“[w]here the law prescribes and defines the duties to be performed

with such precision and certainty as to leave nothing to the

exercise of discretion or judgment.” Downing v. Brown, 935 S.W.2d

112, 114 (Tex. 1996)(citing City of Lancaster v. Chambers, 883

S.W.2d 650, 654 (Tex. 1994)). Ministerial actions “require

obedience to orders or the performance of a duty to which the actor

has no choice . . . . On the other hand, if an action involves

personal deliberation, decision and judgment, it is discretionary.

33
. . .” Id.

The district court found that the summary judgment evidence

created a fact issue concerning the discretionary versus ministerial

nature of Dearborne's actions, and consequently denied summary

judgment for Dearborne based on state statutory immunity from

liability. We agree that genuine issues of material fact remain on

the question of Dearborne's claim of statutory immunity from

liability. The parties focus on whether the use of the FC machine

was contrary to school district policy. If there was a policy

forbidding the use of the FC machine in Hilary's case (the summary

judgment record reflects that a genuine dispute remains on this

point) Dearborne was outside the scope of immunity granted by state

law. Further, even if utilization of FC was within the discretion

granted to Dearborne by the school district, she is not entitled to

summary judgment on her state statutory immunity claim.

Manufacturing evidence of sexual abuse of a child is not within the

parameters of any imaginable discretion granted by the Texas

statute. The argument that Dearborne could, with immunity, violate

the Texas criminal statute forbidding false child abuse reports, is

without merit. See TEX. FAM. CODE § 261.107.

IV. Conclusion

Based on the foregoing, we affirm the district court's denial

of summary judgment on Dearborne's qualified and statutory immunity

defenses to Plaintiffs' claim of violation of the constitutional

right of family integrity and their state law claims. We reverse

34
the denial of summary judgment on the Plaintiffs' bodily integrity,

sexual harassment and IDEA-based claims. We remand for further

proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part and REMANDED.

35
E. GRADY JOLLY, Circuit Judge, specially concurring:

Although I agree with many of the majority’s observations and

conclusions in this case, I would not decide this case under the

Fourteenth Amendment’s Substantive Due Process doctrine. I would

hold that the plaintiffs have alleged facts sufficient to support

a Fourteenth Amendment procedural due process claim.

The Fourteenth Amendment’s Due Process Clause guarantees

parents the right to a process that is fundamentally fair before

having their children removed from their custody. Santosky v.

Kramer, 455 U.S. 745, 753-54 (1982). Based on the allegations

asserted in this case, the parents were deprived of fundamentally

fair procedures when a state actor (Dearborne) intentionally sought

to have fraudulent evidence introduced into the procedures provided

by the state. Furthermore, the right violated here--the right to

have fundamentally fair procedures before the state can remove a

child from its parents--was a clearly established right: If a right

to “fundamentally fair procedures” means anything, it means the

right to a process not purposely influenced with fraudulent evidence

by a state actor.

That this case is properly seen as presenting a procedural, and

not substantive, due process claim is evident from the Supreme

Court’s articulation of the purpose of the Due Process Clause. The

Supreme Court has described this purpose as one “to secure the

individual from the arbitrary exercise of the powers of government.”

Daniels v. Williams, 474 U.S. 327, 331 (1986). Procedural due

36
process accomplishes this end “[b]y requiring the government to

follow appropriate procedures when its agents decide to ‘deprive any

person of life, liberty, or property . . .’” Id. In contrast, the

substantive due process doctrine

bar[s] certain government actions regardless of the

fairness of the procedures used to implement them, [and

the doctrine thereby] serves to prevent governmental

power from being ‘used for purposes of oppression.’

Id. (citations omitted). Under the allegations in the instant case,

the plaintiffs were subjected to patently unfair procedures through

Dearborne as a state actor, and, consequently, the government

arbitrarily, and unconstitutionally, denied them custody of their

child as a matter of procedure.

Thus, it seems to me that the majority ignores the Supreme

Court’s recent iteration of the long established rule that “where

a particular amendment provides an explicit textual source of

constitutional protection against a particular sort of government

behavior, that Amendment, not the more generalized notion of

substantive due process, must be the guide for analyzing [the

plaintiff’s] claims.” County of Sacramento v. Lewis, 118 S.Ct.

1708, 1714 (1998) (citations and quotation marks omitted)

(describing this as “the rule in Graham”11). Although this rule

11
Graham v. Connor, 490 U.S. 386 (1989). The Lewis Court did
apply the doctrine of substantive due process after it concluded
that the Fourth Amendment did not cover the plaintiffs’ claim.
Lewis, 118 S.Ct. at 1715.

37
speaks of a “particular amendment” preempting consideration of the

claim under the substantive due process doctrine, the reason for the

rule in Graham--that the Supreme Court has “always been reluctant

to expand the concept of substantive due process”12--makes clear to

me that an analysis under the procedural due process doctrine should

preempt our consideration of the plaintiffs’ claim under the

doctrine of substantive due process. Thus, while I concur with the

majority that the case must be remanded,13 I respectfully disagree

with the majority’s analysis of the plaintiff’s allegations as a

substantive due process claim.

12
Lewis, 118 S.Ct. at 1714 (quoting Collins v. Harker Heights,
503 U.S. 115, 125 (1992)).
13
I agree with the majority’s disposition of the plaintiffs’
claims involving the right to bodily integrity and freedom from
sexual harassment, the Individuals with Disabilities Education Act,
and state law.

38