By Derek Black
January 19, 2016
"... It remains to be seen just what conduct the panel of the Sixth Circuit thinks could shock a jury’s conscience."
The Sixth Circuit recently decided Domingo v. Kowalski, No. 14–3957, 2016 WL 76213 (6th Cir. Jan. 7, 2016). The court affirmed a grant of summary judgment against parents of three special education students on their claims against a special education teacher, her employer, and several officials with supervisory responsibility over her.
- The parents of one child alleged that nearly every day the teacher removed the six-year-old’s pants, placed her on a training toilet and left her there for as long as a quarter of the school day. The toilet was separated from the classroom only by a partition that students could walk around to see the child on the toilet.
- The teacher was alleged to have bound one misbehaving nine-year-old student to a gurney in the hallway outside the classroom and gagged him with a bandana, and on several occasions to have restrained him in a chair. She was also alleged to have strapped an eleven-year-old girl to a toilet, alone in the bathroom, for 20 to 30 minutes at a time.
- The teacher was also said to have a practice of grabbing disruptive students by the face, squeezing their cheeks and turning their heads toward her, and to have a practice of making students who were inattentive fold their arms on their desks, at which point the teacher would force their heads onto their arms.
The parents supported their allegations with the statements of a teacher’s aide, though the defendants contested the accuracy of the aide’s account at various points and noted that the aide did not report several of the events until she received a layoff notice near the end of the school year.
The parents said the conduct of the teacher and the failure of the other defendants to act violated the students’ substantive due process rights, and they relied on the cause of action under 42 U.S.C. § 1983.
In affirming summary judgment against the parents, the court applied the “shocks the conscience” standard. The court adapted a framework fromGottlieb v. Laurel Highlands School District, 272 F.3d 168 (3d Cir. 2001), and asked whether there was a pedagogical justification for the teacher’s conduct, whether the force was excessive to meet a legitimate objective, whether the conduct was done maliciously for the purpose of causing harm, and whether there was serious injury.
It made analogies to various cases on each of the factors, and ruled that the factors weighed in the teacher’s favor.
The court said that its rejection of the due process claim against the teacher eliminated any basis for holding the supervisors or the school district liable.
The case is one of a large number determining that no reasonable jury could find that school personnel conduct shocks the conscience so as to violate due process. There are, however, cases that come to the opposite result with regard to conduct that looks similar or even less outrageous, for example, Alexander v. Lawrence County Board of Developmental Disabilities, 2012 WL 831769 (E.D. Tex. 2011) (placing student in basket holds and prone restraints), and Covey v. Lexington Public Schools, 2010 WL 5092781 (W.D. Okla. 2010) (demeaning students with disabilities in front of others and making them run laps and do calisthenics).
Moreover, some recent physical and psychological abuse cases brought under a Fourth Amendment theory have been successful on summary judgment or dismissal motions, including Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007) (grabbing and slapping of student and forcing him into a chair), and Doe v. Hawaii Department of Education, 334 F.3d 906 (9th Cir. 2003) (taping of second-grader’s head to a tree).
It remains to be seen just what conduct the panel of the Sixth Circuit thinks could shock a jury’s conscience. Notably, one panel member, Judge Boggs, argued in a partial dissent that the claim over the binding and gagging of the nine-year-old ought to have gone to the jury.