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