concurring in the denial of rehearing en banc:
It is not my usual practice to write a defense of this court’s decision to deny a petition for rehearing en banc, nor do I customarily use the forum of an order denying such a petition to justify a panel’s substantive determinations in a given case. As a general proposition, our court has functioned on the premise that, once a majority of the court has voted against en banc consideration — that is, once we as a court have determined that a panel’s resolution of a case for which a rehearing petition has been filed is not in direct conflict with precedent established either by the Supreme Court or this circuit — the petition is denied, the mandate is released, and the matter is closed.7 The *984decision regarding whether to hear a case en banc is not always unanimous and, on occasion, individual judges remain steadfast in their belief that a case that was not considered by the full court should have been heard. Again, though, our practice has been that, once the members of the court have been polled and a decision to grant or deny the petition rendered, we generally do not belabor the point. This system has worked pretty well. Judge Tjoflat, however, suggests that, even after having thoroughly reviewed all relevant materials in this case and voted against en banc rehearing, we have made a mistake that warrants further discussion in published form. He has composed a lengthy dissent to our order denying the petition for en banc rehearing that explicates the reasons why, in his view, we have erred. Because, as in all eases that come before our court, there are (at least) two sides to this story, and because the panel that initially reviewed this case, along with the original trial judge and jury, apparently took a very different view of both the facts and law than does Judge Tjoflat, I feel compelled to write separately regarding the basis of the panel’s decision.
A. The Facts
At the outset, it must be emphasized that we do not lightly overturn jury verdicts. In reviewing the denial of a motion for judgment as a matter of law, both the district court and this court must consider all the evidence, “but all reasonable inferences must be drawn in the nonmovant’s favor.” U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). We repeatedly have stated that, “ ‘if there is substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[] should be denied.’” Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d 1198, 1200 (11th Cir.1993) (quoting Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1436 (11th Cir.1991)). Indeed, even where a jury’s verdict contains apparent inconsistencies, we must make all reasonable efforts to reconcile the verdict; if there is a view of the case which makes the jury’s answers consistent, we must adopt that view and enter judgment accordingly. See Boczar v. Manatee Hospitals & Health Systems, Inc., 993 F.2d 1514, 1516 n. 5 (11th Cir.1993). The panel’s majority opinion adhered to these commands in describing the facts of this case. Judge Tjoflat’s factual recitation, on the other hand, is conveyed in a manner that leads ineluctably to one legal conclusion: The busybodies who injected their social engineering agenda into a fragile family relationship were entitled to qualified immunity. Notwithstanding Judge Tjoflat’s narration of the facts in the light most favorable to this single conclusion, the trial judge and jury appear to have decided this issue quite to the contrary. I will not catalogue in detail the various facts and inferences that are overlooked in Judge Tjoflat’s dissent. It is enough to note that the simplified, superficial version of events set forth in the dissent reveals the extent to which Judge Tjoflat’s novel characterization of the facts — a characterization presented not in the light most favorable to the non-movant or to supporting the jury’s verdict but, rather, to confirming a pre-determined legal theory — colors his view of this case.
The dissent’s chronological description of events gives rise to an impression that Billy Westbrook (“Billy”), the boyfriend of Rena Landress (“Rena”), was a marginal, incidental figure in this case. These passing references minimize the central role that Billy played. Billy, the eighteen-year-old boyfriend of fifteen-year old Rena, was the son of a county commissioner. Before Rena was taken into custody, but after she was interviewed by Department of Family and Children Services (“DFACS”) caseworkers upon a tip from Billy’s mother and after the caseworkers apparently decided not to take Rena into protective custody, Billy came into the DFACS office and spoke with defendant La-rue T. Camp, then the director of DFACS, and defendant Lori Winkler, a DFACS caseworker. Billy brought Rena to the DFACS office the next day to request that she be taken into protective custody. While in state *985custody, Rena was allowed to stay in homes that were neither state-approved nor court-approved foster homes. These homes, however, did have the advantage of being “Billy-friendly.” It is undisputed that, while in foster care, Rena and Billy had sexual intercourse often, including many times on the property of Billy’s parents. The jury could have inferred from these facts that Billy used his access to the courthouse and DFACS to get around Rena’s mother and obtain access to the girl and that the defendants were willing participants in his scheme.
In short, the facts as presented by Judge Tjoflat paint the picture of government employees who may have made some mistakes of judgment and procedure in handling this case. Against this background, it is not too difficult to reach the conclusion that they should have been granted qualified immunity. The facts, viewed in the light most favorable to the plaintiffs and as found by the jury, however, paint the picture of irresponsible government employees who recklessly (at best) or intentionally (at worst) wielded their discretionary power for reasons far removed from the best interest of the child and her family.
In the first appeal in this ease, the panel affirmed the district court’s denial of summary judgment under Local Rule 36-1. Riley v. Camp, 990 F.2d 1268 (11th Cir.1993) (unpublished table decision) [hereinafter Riley I ]. The panel in the second appeal — the one at issue here — held that it is bound by the Riley I panel on the issue of qualified immunity under the doctrine of law of the ease. Riley v. Camp, 84 F.3d 437 (11th Cir.1996) (unpublished table decision) [hereinafter Riley II]. Judge Tjoflat takes issue with this determination and attacks it on several fronts: First, he argues that Riley II created new substantive due process rights previously not recognized by our circuit or the Supreme Court; second, he suggests that the Riley II panel misapplied the law-of-the-ease doctrine in the context of qualified immunity because (1) the operative facts have changed throughout the successive stages of this litigation, (2) intervening Eleventh Circuit decisional law has eliminated the plaintiffs substantive due process claim, and (3) an exception to the doctrine of law of the case applies because the result reached in Riley II works a “manifest injustice.” I will address these arguments in turn.
B. Substantive Due Process
Judge Tjoflat contends that the Riley II panel created new, previously unrecognized substantive due process rights by leaving undisturbed the jury’s determination regarding the state’s failure both to permit the plaintiff to visit her child and prevent Billy from impregnating and marrying the child while in state custody. In the first instance, Judge Tjoflat argues that the plaintiff has no substantive due process right that survives her right of procedural due process. He relies primarily on McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir.1994) (en banc), a decision that he authored, for this proposition. Contrary to Judge Tjoflat’s characterization of McKinney, the holding in that case was quite narrow: “[W]e hold that, in non-legislative cases, only procedural due process claims are available for pretextually terminated employees.” 20 F.3d at 1560; see also id. at 1567 (Edmondson, J., concurring in judgment) (criticizing the majority for discussing aspects of substantive due process not necessary for the resolution of an employment claim). Indeed, the opinion unambiguously differentiates between “employment rights [which] are state-created rights and ... ‘fundamental’ rights [which are] created by the Constitution.” Id. at 1560. The former “are not subject to substantive due process protection.” Id. at 1556.
The substantive component of the Due Process Clause protects those rights that are “fundamental,” that is, rights that are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). The Supreme Court has deemed that most— but not all — of the rights enumerated in the Bill of Rights are fundamental; certain unenumerated rights ... also merit protection.
Id. at 1556 (footnote omitted). As an example of an unenumerated right that is considered fundamental, McKinney cites the “right of privacy.” Id. (citing Planned Parenthood *986v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 2807, 120 L.Ed.2d 674 (1992)). Although not mentioned in McKinney, the right to family integrity and freedom to rear one’s children as one deems fit is also a fundamental right that the Court has recognized for almost one century. See M.L.B. v. S.L.J., — U.S. -, -, 117 S.Ct. 555, 564-65, 136 L.Ed.2d 473 (1996) (stating that “the Court [has been] unanimously of the view that ‘the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.’ ”) (quoting Santosky v. Kramer, 455 U.S. 745, 774, 102 S.Ct. 1388, 1405, 71 L.Ed.2d 599 (1982) (Rehnquist, J., dissenting)); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Notwithstanding Judge Tjoflat’s attempt to narrowly define the right at issue here, it is precisely the long-acknowledged right to family integrity that is claimed by the plaintiff in this case.
Judge Tjoflat’s isolated reading of language from McKinney stating that a “right is [not] ‘fundamental,’ [unless] no amount of process can justify its infringement,” 20 F.3d at 1557, is culled out of context and given an overly expansive construction. According to this reading, any right that must yield to the state’s legitimate interests under certain circumstances is not “fundamental” and is protected by procedural, not substantive, due process. Judge Tjoflat suggests that this type of substantive, fundamental right is exemplified by a prisoner’s Eighth Amendment right to be free from cruel and unusual punishment: No matter what the process, a state cannot infringe that right.
It is Judge Tjoflat’s definition of a fundamental constitutional right grafted onto a scenario entirely dissimilar from McKinney, however, that is both novel and inconsistent with Supreme Court jurisprudence concerning substantive due process; indeed, it is beyond dispute that the Supreme Court historically has recognized that fundamental rights — whether enumerated in the Bill of Rights or unenumerated — may be abridged under specified, narrowly-delineated circumstances. A person’s First Amendment right to free speech, for example, is unquestionably a “fundamental right” protected by both procedural and substantive due process, yet it is beyond dispute that it is not an absolute right: Under certain circumstances, it must yield to the state’s compelling interests. See, e.g., Morris v. Crow, 117 F.3d 449, 456 (11th Cir.1997) (explaining the balancing test established by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), as requiring the court to weigh “the employee’s first amendment interests against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees”) (internal quotation marks omitted). Similarly, in its exploration of the parameters of the right to privacy in the context of a woman’s decision to have an abortion, the Supreme Court has concluded that “[o]nly where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” Planned Parenthood v. Casey, 505 U.S. 833, 874, 112 S.Ct. 2791, 2819, 120 L.Ed.2d 674 (1992) (emphasis added); see also Griswold v. Connecticut, 381 U.S. 479, 497, 85 S.Ct. 1678, 1689, 14 L.Ed.2d 510 (1965) (“Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.”) (internal quotation marks omitted).8 That is the protection that substantive *987due process offers fundamental rights, whether they are enumerated in the Bill of Rights, such as free speech, or unenumerat-ed but “implicit in the concept of ordered liberty,” such as plaintiffs right to family integrity.9
Again, it cannot be over-emphasized that Judge Tjoflat has constructed a revisionist view regarding the facts of this case; this perspective colors his analysis of the case’s legal ramifications and helps to explain his charge that the panel has created substantive rights that previously have not been recognized. Although Judge Tjoflat may disagree with this conclusion, it was the panel’s determination that the constitutional right at issue here has been around, fully recognized, for quite some time. It is Judge Tjoflat’s dissent, not the panel decision, that represents an innovative approach to substantive due process that is neither compelled nor supported by precedent.10 In the final analysis, it is critical to realize that this case is not only about gross misjudgment by the defendants. It is about gross misuse of the awesome power of the state for the purpose of satisfying the wishes of a politically connected eighteen-year-old man to have access to his under-age girlfriend. One district judge, two panels of this court, and the jury found these actions to be so outrageous that they offend the substantive component of the Due Process Clause.11 Perhaps reasonable minds can differ about this conclusion. I suggest that, under these conditions, it is best to leave the jury’s determination undisturbed.
C. The Law of the Case Doctrine
As correctly noted in the dissent, the trial court and appellate court are governed by a prior appellate decision in the same ease except when (1) new and substantially differ*988ent evidence emerges at trial; (2) controlling authority has been rendered that is contrary to the previous decision; or (3) the earlier ruling was clearly erroneous and would work a manifest injustice if implemented. See Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir.1984). Judge Tjoflat avers that all three of these exceptions obtain in this instance and, therefore, the Riley II panel erred in its application of the law-of-the-ease doctrine to Riley I. Again, I disagree.
Judge Tjoflat first concludes that we were compelled to revisit the issue of qualified immunity on the basis of cases such as Behrens v. Pelletier, 516 U.S. 299, -, 116 S.Ct. 834, 839, 133 L.Ed.2d 773 (1996) (holding that a defendant’s unsuccessful appeal from the denial of its motion to dismiss the claim on grounds of qualified immunity does not bar a subsequent appeal from the denial of its summary judgment motion on the same grounds because different facts may have emerged), as extended to appeals from post-trial motions in Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir.1996) (holding that a defendant may raise the defense of qualified immunity both before trial on a motion for summary judgment and after trial on a motion for judgment as a matter of law).12 The law of the case doctrine also allows reconsideration of an issue “when ... a subsequent trial produces substantially different evidence.” United States v. Robinson, 690 F.2d 869, 872 (11th Cir.1982).
Again, however, Judge Tjoflat applies an unjustifiably broad construction to the rules enunciated in these cases. Cottrell is not a license to the district court and subsequent appellate panels to simply disregard the legal conclusions of the first appellate panel. According to Cottrell,
When a ... court has denied the qualified immunity defense prior to trial based upon its determination that the defense turns upon a genuine issue of material fact, the court should revisit that factual issue when, and if, the defendant files a timely Fed.R.Civ.P. 50(a) or (b) motion.
85 F.3d at 1488 (emphasis added). Thus, Cottrell does not stand for the proposition that the Riley II panel was free to revisit (or should have revisited) the legal conclusion that, under plaintiff’s version of the facts as presented in the first appeal, defendant violated clearly established law. All Riley II could have revisited, according to Cottrell, is whether the trial bore out the plaintiffs version of the facts. If, as here, the facts as they emerged during the trial and as found by a jury are essentially the same as those alleged by the plaintiff in her first appeal, law of the case requires that the subsequent appellate panel adhere to the legal conclusion that the first panel reached — that is, the defendants are not entitled to qualified immunity. See Riley II (Kravitch, J., concurring in part, at 982) (“If, as here, the facts presented by the plaintiffs at the summary judgment stage become, without notable exception, the ‘actual facts’ as developed at trial, there is no need to revisit the qualified immunity determination made by the prior appellate panel”).
Significantly, as explained in Cottrell, the defendants here could have asked for special jury interrogatories designed to show that the plaintiffs version of the facts was incorrect. See 85 F.3d at 1487. Indeed, it would have been error for the district court to deny such a request. Id. at 1487-88. The court in this case did employ special interrogatories to resolve several important factual disputes (e.g., whether the defendants had received a court order before taking Rena into protective custody). The jury answered every one of these interrogatories in favor of the plaintiff. Importantly, the defendants did not object to the court’s instructions or interrogatories. The defendants cannot now complain that these interrogatories were not artfully drawn or failed to answer the questions most relevant to the qualified immunity question. Cf. Bendiburg v. Dempsey, 19 F.3d 557, 562 (11th Cir.1994).
The Riley II panel’s review of the facts leads to the conclusion that the jury ratified the plaintiffs version of the facts in its en*989tirety. Under these conditions, the Riley II panel was bound by the Riley I panel’s legal conclusion that the defendants are not entitled to qualified immunity. Neither Cottrell nor the exception to the law of the case doctrine applicable when “a subsequent trial produces substantially different evidence,” Robinson, 690 F.2d at 872, justify a different result.
Judge Tjoflat further argues that law of the case does not apply to this case because the result works a “manifest injustice.” See Piambino v. Bailey, 157 F.2d 1112, 1120 (11th Cir.1985).13 In support of this assertion, he suggests, again, that the Constitution does not create the substantive rights claimed by the plaintiff and, even if it does, those rights were first recognized in Riley II; according to this logic, because the putative rights in question were not “clearly established” at the time the events giving rise to this action occurred, the defendants would be entitled to qualified immunity. Although Judge Tjoflat expends considerable verbiage to expose the manifest injustice that results from our adherence to law of the ease doctrine, his argument, in my view, can be reduced to a straightforward critique of Riley I on the ground that it was wrongly decided. There is a peculiar circularity to this critique: The Riley II panel should not have applied law of the ease to the decision in Riley I because that decision was wrong and the manifest injustice that results from adhering to Riley I is that the litigants are bound by a wrongly-decided decision! In the context of the applicability of the law of the ease doctrine, however, “manifest injustice” does not simply mean that a reasonable argument exists that the first panel’s decision was wrong. Otherwise, the exception swallows the rule: If the doctrine of law of the case applies only where the second appellate panel believes that the first was absolutely correct, the doctrine means nothing. Indeed, as we previously have explained “the law of the ease doctrine does not apply to bar reconsideration of an issue when ... the prior decision was clearly erroneous and would work manifest injustice.” Robinson, 690 F.2d at 872 (emphasis added); see also Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 1391 n. 8, 75 L.Ed.2d 318 (1983); Piambino, 757 F.2d at 1120. Therefore, whatever “manifest injustice” means, it surely does not simply mean that the prior panel’s decision was incorrect; rather, the doctrine stands for the proposition that, absent extraordinary circumstances, a panel of this court should adhere to a previous panel’s decision in the same ease even if that decision is erroneous. It was the unanimous view of the three judges who decided Riley II that extraordinary circumstances that would militate against applying law of the case did not exist here. That determination, although perhaps not to everyone’s liking, is consistent with the jurisprudential ideal of finality, economy of judicial resources, and respect for prior appellate decisions that the law of the case doctrine embodies.
Surely, jurists could debate endlessly the legal connotations of the term “manifest injustice.” That a Chief Judge of the United States District Court for the Northern Dis*990trict of Georgia as well as two panels of this court all found no “injustice” in holding the defendants liable for their irresponsible abuse of state power is enough to convince me that no manifest injustice occurred in this case. Moreover, it is useful to remember here what the scope of our inquiry is at this stage of the litigation. Our task is to determine not whether the Riley I panel arguably reached the wrong conclusion but whether that panel’s conclusion was so “clearly erroneous” (and results in such “manifest injustice”) that we should not adhere to it. In light of the Supreme Court’s long-term recognition of a fundamental right to family integrity, the Riley I panel’s conclusion cannot be deemed dearly erroneous, if erroneous at all.
CONCLUSION
Judge Tjoflat takes a remarkably different view of this case than did the district court judge, jury, and appellate court panels that have combed through the pleadings, testimony, and law relevant to this case. That is his prerogative. His negative appraisal of the panel’s decision represents one voice in the ongoing dialogue about distinct interpretive perspectives in which we as jurists continually engage. That is as it should be. It is my view, however, that in his zeal to chastise the Riley II panel for what he denominates an “improper creation of new rights,” dissent at 959, he has selectively ignored the unadorned facts that unfolded during the course of this litigation: The plaintiffs daughter, Rena, was taken into protective custody for reasons unrelated to her well-being and safety. Rena’s boyfriend Billy, whose father was a county commissioner, exercised his considerable political influence to have Rena placed in non-approved homes where he could have access to her. Not surprisingly, Billy impregnated Rena (committing statutory rape in the process) and subsequently married her, thereby destroying the plaintiffs right to the custody and rearing of her minor child. Some of the mothers, fathers, grandmothers, and grandfathers on the jury evidently saw through the bureaucratic double-talk, used their common sense, and discerned just what had happened. The message the jury tried to send with its verdict is that busybodies in government can go too far and in this case they crossed the line. It seems to me — as it did to the panel in this case — that we should leave that jury determination alone and let the message sink in.
. The panel opinion in Riley II is not binding precedent under 11th Cir. R. 36-2 and, as a result, is not "the law of the circuit" as stated by Judge Tjoflat in his dissent. Ante at 959. Therefore, contrary to Judge Tjoflat’s somewhat melodramatic assertion that the effects of this case will be extraordinarily far-reaching, I believe that this case is remarkably unlikely to palpably affect the lives of “[hlundreds, if not thousands, of social services case workers within our circuit, and many of abused and neglected children.” Ante at 974. Moreover, while I would like to think that my judicial colleagues chose not to vote this case en banc because they opined that the panel reached a correct result for the right reasons, I am well aware that some may have disagreed with the panel but knew that the opinion would be non-precedential. A denial of en banc rehearing is similar to a denial of certiorari by the Supreme Court; it communicates little, if anything, about the position of the court or the issues presented. Compare Luckey v. Miller, 929 F.2d 618, 622 (11th Cir.1991) (“[A] summary denial of rehearing en banc is insufficient to confer any implication or inference regarding the court’s opinion relative to the merits of a case.... We also believe that attaching prece-dential weight to a denial of rehearing en banc would be unmanageable.”) with Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950) ("Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court rigorously has insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review.”). Indeed, although Judge Tjoflat and I each have outlined the reasoning underlying our respective views of the court’s denial of en banc rehearing in this particular case, our opinions in this regard, like the *984court’s decision to deny rehearing, have no binding or precedential value.
. McKinney's discussion of the distinction between legislative and non-legislative acts in the context of substantive due process has no bearing on this case; setting aside the fact that this short discourse in McKinney is dicta, its only function is to distinguish the Supreme Court cases raised by the plaintiff in McKinney from the specific nature of the claim under the facts presented in his case. It is worth noting, however, that allegations of First Amendment violations as applied in the employment context do implicate executive, rather than legislative, actions; yet the right can be abrogated by the state. Again, McKinney was about state-created property rights and does not control the constitutionally-based claim involved here. See Flint Elec. Membership Corp. v. Whitworth, 68 F.3d 1309, 1313 (11th Cir.1995), modified by 77 F.3d 1321 (11th Cir.1996) ("In McKinney v. Pate ... the court held that § 1983 substantive due process *987claims arising from nonlegislative deprivations of state-created property interests are no longer cognizable in this circuit.”) (emphasis added) (citation omitted).
.The dissent’s foray into the absence of either a "special relationship” or a "special danger” that would permit the assertion of a constitutional right solely by the plaintiff’s daughter is another proverbial red herring. Cases such as DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), have limited application here, where the state has not neglected to provide services to an individual in state custody but, rather, has removed a minor child out of her mother’s home, temporarily denied the mother access to her child, and affirmatively assisted her adult boyfriend in obtaining access to the girl so that he can commit what is, after all, statutory rape. Moreover, we previously have held that a parent’s constitutional right to direct the upbringing of a minor is violated when the state interferes — without compelling justification — in matters concerning the growth, development, and upbringing of children. See Arnold v. Board of Educ., 880 F.2d 305, 312 (11th Cir.1989) (where school officials forced students to have abortions, court held that "a parent’s constituted right to direct the upbringing of a minor is violated when the minor is coerced to refrain from discussing with the parent an intimate decision such as whether to obtain an abortion; a decision which touches fundamental values and religious beliefs parents wish to instill in their children.”) (emphasis added). Similarly, it is the plaintiff’s parental, custodial right to guide her own child through adolescence without undue state interference that properly is being asserted in this case.
. It is worth noting that the original panel in Riley II decided not to publish the opinion in that case precisely because the panel believed that the decision was both consistent with and dictated by circuit precedent and created no "new law” meriting publication. See 11th Cir. I.O.P 36-5 ("Opinions that the panel believes to have no precedential value are not published.’’)
. As Judge Tjoflat acknowledges in his dissent, the jury had to determine that the defendants acted with reckless indifference or "evil motive” in order to justify an award of punitive damages. Contrary to Judge Tjoflat’s description, then-Chief Judge William C. O'Kelley did not allow the jury to "create and define new” substantive and procedural due process rights. Ante at 964. As previously stated, the due process rights at issue were well-established long before the jury heard this case. See M.L.B. v. S.L.J., - U.S. -, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Perhaps these decisions, relied upon by the original panel, should have been cited. However, the law was well-established and the briefs focused not on the sufficiency of the legal predicate involved but on the sufficiency of the evidence. The question of whether the plaintiff had set forth a recognized constitutional right was raised by Judge Tjoflat after the panel’s decision in the case. Moreover, most parents and legal scholars would be surprised to learn that the rights to family integrity and to rear one’s children as one chooses are not "fundamental,” as suggested by Judge Tjoflat in his dissent. Ante at 964-65.
. I note that Cottrell was published after Riley II was decided. In any case, the result in Riley II is correct in light of Cottrell as well.
. As noted, Judge Tjoflat also maintains that law of the case should not have been invoked in this instance because a contrary intervening legal authority — McKinney v. Pate — has eliminated the plaintiffs cause of action in its entirety. The basis for Judge Tjollaf s contention in this regard largely mirrors his castigation of the panel for its alleged creation of "new” substantive due process rights. It is abundantly clear that Judge Tjoflat and the panel disagree on this point. I will not reiterate my many reasons for disputing the wholesale applicability of McKinney to the constitutional claim at issue here. At the risk of incurring repetition, however, it is worth restating that McKinney was a case about state-created property rights. Significantly, although the dissent relies primarily on Flint Elec. Membership Corp. v. Whitworth, 68 F.3d 1309 (11th Cir.1995), in support of the application of McKinney to all substantive due process claims, it is hardly a coincidence that the right asserted in Whitworth was solely a "state-created property right in ... electrical service contracts” and implicated a state law requiring governmental entities to engage in competitive bidding. Id. at 1313-14. Indeed, Whitworth expressly declares that the holding in McKinney was that “ § 1983 substantive due process claims arising from nonlegisla-tive deprivations of state-created property interests are no longer cognizable in this circuit.” Id. at 1313 (emphasis added). The right at issue here, of course, is extraordinarily different from that invoked in cases such as McKinney and Whit-worth and implicates a liberty interest far removed from either employment or contract bids.