Lead Opinion
Plaintiffs Jim and Gloria Morris, individually and on behalf of their minor daughter, Hilary Faith Morris,
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,
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 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.
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.”
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 day, September 17, 1992, an employee of TDPRS and a sheriffs 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 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
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 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 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.CivP. 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 eviden-tiary and legal bases of claims made by Plaintiffs under Title IX and the IDEA.
The district court granted Dearboriie’s motion for summary judgment as to Plaintiffs 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 brings the instant appeal.
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,
III. DISCUSSION
A. Plaintiffs’ Claims under 1% U.S.C. § 1983
The Plaintiffs brought claims pursuant to 42 U.S.C. § 1983 alleging that Dear-borne 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 judgment on that basis.
As a general rule, government officials performing discretionary functions are entitled to qualified immunity. See Harlow v. Fitzgerald,
As .a threshold matter, in assessing a claim of qualified immunity, we engage in a three-part analysis.
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,
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 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.,
£ The Right to Family Integrity
It is clear, and Dearborne does not dispute, that the constitution protects the right to family integrity. Twenty
“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,
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, alleg-1 edly 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.
S. 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,
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.
When the district court ruled, it did not have the benefit of County of Sacramento v. Lewis,
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,
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 Stanley,
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,
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,
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 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,
Dearborne relies on Doe,
Dearborne also relies on our subsequent decision in Kiser v. Garrett,
In deciding Kiser, we relied extensively on our earlier decision in Hodorowski,
The Original Petition filed by TDPRS sought an order 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.” Dear-borne 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 pa-' rental rights.
.Moreover, Doe, Kiser and Hodorowski addressed the contours of the right of family integrity vis-a-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 Hodorow-ski, 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 in
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 received reports of abuse in order to guarantee their safety. See Hodorowski,
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. 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
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,
6. Causation
Dearborne
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 foresee-ably 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 the intervention of the state court’s independent decision. That is, there is no genuine issue of fact concerning Dear-borne’s allegation that the state judge’s independent decision broke the causal link
We begin with the obvious proposition that the question of causation is “intensely factual.” Savidge v. Fincannon,
In Taylor v. Gregg,
B. Plaintiffs’ Individuals with Disabilities Education Act Claim
The district court denied Dear-borne’s motion for summary judgment on Plaintiffs’ claims brought pursuant to the
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 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,
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 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.
Notes
. 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.”
. Facilitated Communication, the process, and a Facilitative Communicator, the machine used in the process, will both be referred Lo interchangeably as "FC.”
. See Callahan v. Lancaster-Lebanon Intermediate Unit 13,
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.
. The FC machine only printed in uppercased letters without punctuation.
. Double blind studies in the FC context involve the facilitator looking away from the screen during the process to help rule out facilitator influence.
. 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,
. 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,
In Hodorowski v. Ray,
. 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.
. 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 Dear-borne.
. 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,
. Graham v. Connor,
Concurrence Opinion
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,
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,
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.”
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 plaintiffs] claims.” County of Sacramento v. Lewis,
. Lewis,
. 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.