[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-10583 October 07, 2003
_________________________ THOMAS K. KAHN
D. C. Docket No. 01-01008-CV-C-W CLERK
CORETTA KIRKLAND,
as parent & next friend of
Demario Jones, a minor,
Plaintiff-Appellee,
versus
GREENE COUNTY BOARD OF
EDUCATION,
ROBERT ELLIOTT, in his
official & individual
capacity,
Defendants,
JAMES MORROW, in his
official & individual
capacity,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 7, 2003)
Before BIRCH, BARKETT and HILL, Circuit Judges.
BARKETT, Circuit Judge:
James Morrow, the principal of Eutaw High School in Green County,
Alabama, appeals the denial of his motion for summary judgment on the basis of
qualified immunity. Demario Jones, a thirteen-year-old student called into
Morrow’s office for disciplinary reasons, claims that Morrow struck him with a
metal cane in the head, ribs and back, leaving a large knot on his head and causing
him to suffer continuing migraine headaches. Coretta Kirkland filed suit under the
Fourteenth Amendment and 42 U.S.C. § 1983 as next friend to her son, and the
district court denied Morrow’s claim for qualified immunity.
We have jurisdiction over this interlocutory appeal to the extent that it
involves issues of law rather than challenges to the sufficiency of the evidence.
Cottrell v. Caldwell, 85 F.3d 1480, 1484-85 (11th Cir. 1996). For purposes of this
qualified immunity appeal, we take the facts as alleged by Kirkland in the light
most favorable to her claims. Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d
1179, 1185 (11th Cir. 2002).
Morrow first argues that the facts as alleged do not give rise to a
constitutional violation. However, excessive corporal punishment may be
actionable under the Due Process Clause when it involves “arbitrary, egregious,
2
and conscience-shocking behavior.” Neal v. Fulton County Bd. of Educ., 229 F.3d
1069, 1075 (11th Cir. 2000).1 A student’s allegations may rise to this level when
“(1) a school official intentionally used an amount of force that was obviously
excessive under the circumstances, and (2) the force used presented a reasonably
foreseeable risk of serious bodily injury.” Id. Repeatedly striking a thirteen-year-
old student with a metal cane, including once on the head as he was doubled over
protecting his chest, when he was not armed or physically threatening in any
manner,2 obviously fulfills both criteria. Thus, cast in the light most favorable to
Kirkland, the alleged facts establish a constitutional violation.
Notwithstanding that his actual conduct may have violated the Constitution,
Morrow agues that at the time of the incident the right to be free from corporal
punishment was not clearly established. Morrow misses the point. The issue here
is not whether any corporal punishment violates the Constitution, but whether the
1
We agree with Morrow that disciplining students lies within his general discretionary
authority. Thus, he is eligible for the qualified immunity defense. See Harbert Int’l, Inc. v. James,
157 F.3d 1271, 1282 (11th Cir. 1998). Of course, if general student discipline were not within the
scope of his authority, he would be liable for damages.
2
Morrow cites two earlier disciplinary incidents involving Jones, one of which involved
the confiscation of a weapon from his school bag, and appears to suggest that even if Jones did
not pose an actual threat at that moment, the prior incidents supported the use of excessive and
unconstitutional force. We unequivocally reject such an argument. The relevant question is
whether at the time force was used, the force used was excessive in light of the circumstances at
that time.
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nature and extent of the force applied here was constitutional. Although Neal
elaborated upon our case law after this incident occurred, the Supreme Court had
already held that the deliberate infliction of physical pain by school authorities as
punishment for misconduct implicated Fourteenth Amendment liberty interests.
Ingraham v. Wright, 430 U.S. 651, 674 (1977). Similarly, the Supreme Court of
Alabama had already noted that “the infliction of corporal punishment in public
schools is a deprivation of substantive due process when it is arbitrary, capricious,
or wholly unrelated to the legitimate state goal of maintaining an atmosphere
conducive to learning.” C.B. v. Bobo, 659 So. 2d 98, 103 (Ala. 1995) (quoting
Doe v. Taylor Ind. Sch. Dist, 15 F.3d 443, 451 (5th Cir. 1994)) (internal quotation
marks omitted). Thus, the qualified immunity question turns on whether
Morrow’s actions as described by Kirkland violated these principles. Having
considered the record before us, we AFFIRM the determination of the district
court that Morrow was not entitled to qualified immunity.
AFFIRMED.
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