*1 constructively dis- Boyle was dence, that Individually as Next and MORRIS, his Jim reduced Co. Gallagher when charged Morris, Hilary a Mi- Faith case, Friend it is the If that by half. salary Individually and Morris, nor; Gloria has Co. Gallagher difference no makes Hilary Mor- Faith Friend as Next If the offer behind. to hide fig leaf legal Plaintiffs-Appellees, Minor, ris, a tied position, sales president vice was salary, reduction fifty-percent ato because resign Boyle to force designed DEARBORNE, Hawkins Charlotte and as disabled Boyle Gallagher regarded Defendants, al., et pre- job, his performing incapable as regarded Boyle was sumption Dearborne, Individu- Hawkins Charlotte offer pretextual Such dissolves. disabled capacity as a ally in her official lia- ADA employer shield cannot Independent for Whitehouse Teacher discriminatory actions. bility for its Defendant-Appellant. District, School allegations factual Boyle’s on Based 98-40488. No. conduct, we conclude Gallagher’s about of material issue genuine is a there Appeals, States Court United as regarded Boyle was as to whether fact Circuit. Fifth summary judg- disabled, therefore inappropriate. ment July
IV. summary appeals also
Boyle Co. Gallagher in favor entered
judgment the ADA. under claims retaliation
on his that the ruled correctly court district “adverse an cannot aof lawsuit
filing required such action”
employment retal against protection ADA’s
trigger it 12203, because 42 U.S.C. under
iation at all. action employment an
is not aspect this affirm We at 410. F.Supp. below. judgment
V. reasons, judgment foregoing
For AFFIRMED court the district RE- we part, and VACATED
part, consistent proceedings for further
MAND opinion.6 as- properly were fees whether regarding merits on the disposition of our 6. Because judgment court's the district sessed based case, the district vacate also must we on the merits. opinion express no award. fee court's *5 McCol- Westbrook, Ray Johnny Don J. Crowson, & Fitzpatrick lum, Coghlan, TX, Plaintiffs- for Westbrook, Longview, Appellees. Cole- Shaver, Keith Darren Gary Harold Coleman, Shaver, & Boon, Echoes
man, Brandt, Phillip TX, Thomas Longview, Harper & Cannon, Fanning H. Cathlynn TX, for Dearborne. Martinson, Dallas, Brown, Freís, following Lisa A.' C. Brace- Kelly accepts recitation facts Patterson, Houston, TX, well & for Texas Plaintiffs’ infer- evidence reasonable Boards, Asso- Association School Texas ences drawn it as true and should not Administrators, any ciation expressing of School Texas be construed as view as to Attorneys credibility Council of School and Texas weight or their evidence. Association, Carpenter, Classroom Teachers Amici See Salas 980 F.2d (5th Cir.1992). Curiae. n. 3 Mor- September Jim and Gloria four-year ris enrolled their old daughter, at Hilary, Elementary Cain School Independent Whitehouse District School JOLLY, Before WIENER and (“WISD”) for the purpose obtaining PARKER, Judges. Circuit speech therapy Hilary the child. had diagnosed mutism; having been elective PARKER, Judge: ROBERT M. Circuit to speak, she was able but refused to do Morris, Plaintiffs Jim and Gloria individ- had receiving so. been treat- ually daugh- behalf of their minor ment for this condition the firm of ter, Morris,1 Hilary Faith brought suit Counseling, Testing, Psychological against separating defendants for the fami- (“CTPS”). On September Services ly years for a an period during of three parents’ permission without the investigation possible Ap- child abuse. teacher, knowledge, the child’s Appellant pellant Charlotte Hawkins Dearborne Dearborne, Hilary had use machine (“Dearborne”) brings this interlocutory ap- (“FC”), called a Facilitative Communicator peal challenging district court’s denial a device not unlike processor, a word fol- *6 of her summary judgment motion for lowing a known routine as Facilitated qualified based statutory immunity on and In Communication.2 this a process, person reporting in possible Hilary, abuse of who known aas “facilitator” supports the arm was one her students. affirm in We of a developmentally disabled or mechani- part, in part, reverse and remand this case cally deficient so individual as to allow that to the district proceed- court for further type. individual to The process was ings. known highly to be controversial at the time, large part because of obvious the I. & FACTUAL PROCEDURAL fear, by studies, borne out numerous BACKGROUND facilitator, the and typist, not the would Because this interlocutory ap Furthermore, is an output.3 control the the peal a from denial of summary judgment, machine, allege Plaintiffs that the and the plaintiff's (FC) 1. The spelled child name is pro- “Hil- Facilitated Communication is a lary" “Hilary” and the briefs and by a supports cess which “facilitator” the record.. opinion will refer to her in “Hi- this as hand or communicatively arm of a im- lary.” paired using keyboard individual while a or typing It been device. has claimed this Communication, process, 2. Facilitated the persons enables with autism or Communicator, and a Facilitative the ma- mental retardation to communicate. Stud- process, chine used in the will both be re- repeatedly ies have demonstrated that FC is interchangeably ferred Lo as "FC.” scientifically technique not a valid indi- for 3. viduals Callahan v. Lancaster-Lebanon with autism or mental retardation. Interme (E.D.Pa. F.Supp. diate Unit particular, 319 n. information obtained via FC 1994), thorough for collection of sources deny should not be used confirm or alle- to FC, regarding including following policy the gations diagnostic of abuse or to make or by issued Academy statement Child the American treatment decisions. Psychiatry, and Adolescent October 1993: compound predi- using parents, the cated had re- Dearborne which about technique, anatomical correctly spelled and cates to be not training, day one ceived genitalia. for as the terms young children with utilized have who children with or child plaintiff readouts, child the these the basis of On their own. on ability type to mechanical the custody, parents’ her from was removed when used purpose no serves device permanently to a suit initiated and TDPRS literate. not yet are who individuals with Examinations rights. parental terminate Hilary, no evidence with revealed physicians initial session two by During the attempt first then contracted TDPRS also Dearborne’s abuse. was sexual which student, guid- therapy Dearborne for the provide to use FC with with CTPS to con- Plain- printout type allegations. to the hand further Hilary’s test ed and to months, against the that, eight of sexual allegations taining tiffs recount time, Hilary could explicit sex- At that exposed parents. Plaintiff was her minor know write, not even behavior, did and and that read and language ual While alphabet. reason only the letters terminated all was treatment hand, a number the child’s persevering and guided teacher insistent Plaintiffs’ violent graphically and sexually explicit efforts. typed. were phrases time, September Also, during this test used only method theAs against instruc- May until FC’process, reliability of accuracy and involved officer of the TDPRS tions the words Hilary type asked Dearborne case, parent, child’s foster Hilary’s YOUR DAUGHTER.”4 IS CTPS), “LAUREN (a counselor Karen Goforth Hilary typing, assisting Dearborne With ses- conduct FC continued Dearborne spelling, with correct sentence typed child, graphic during which with the sions was fa- Although “in a flash.” and violence conduct of sexual themes studies5 with double-blind miliar was seated The child explored. were influence, conducted she facilitator risk ses- least one during at lap influ- own to determine test reliable no four-year-old had the session One sion. she stating that output, name, on the ence her own only child, spell could who such tests. conduct busy to too assistance, writing only *7 EQUALS JIM.” “JACK phrase, complex the contacted and WISD Dearborne wrote, another, supposedly child the In Regula- & Protective Department Texas ME ALWAYS.” BELIEVE (“TDPRS”), the “ALWAYS but tory Services the suggested Dearborne When alleged sexual the about parents, plaintiff every typed they if good be it would Sep- that day, following Hilary. The IT typed, “YES reportedly the child day, TDPRS 1992, 17, employee an tember TELL ABOUT TO I WANT WOULD Dearborne’s came to deputy a sheriffs and WONT [sic] WORDX THE BUT JIM child and the interviewed They classroom. guidance, With OUT.” session, it COME which during FCan observed “VAGINA,” “PENIS,” wrote, the child was that Dearborne clear abundantly was * * “SCARED,” the *ED,” “F* allege Plaintiffs messages. the producing BITCH,” “AM I AOF “SON phrases, incompetent were below defendants SOUL [sic] MYT CRAZY,” IN and “SICK machine, the session and that the operate FRIGHTENED.” [sic] ALWZAYS the achieve aby desire guided was showing matter also included sessions The ses- the defendants. by sought result identities, one multiple had the child impli- again a printout produced sion in- context the FC studies blind 5. Double uppercased only printed in machine The FC the away from looking the facilitator volve punctuation. letters without help rule out process to during the screen influence. facilitator whom was referred to as deficiencies, “JEZIBEL.” WISD, Neill, through chose to This reference was not the religious sole do virtually nothing. By reason of the explored. item Once when the child pur- Dearborne, further efforts of WISD, and portedly typed, “SAID A PRAYWER [sic] TDPRS, the the Plaintiffs lost custody of .MYSELF,” FOR responded, Dearborne daughter their period for a of almost three “GOD GIVES COMFORT AND SAFETY. years. I HAVE SAID LOTS ÓF PRAYERS FOR Plaintiff Jim Morris precluded was YOU.” Under guidance, teacher’s any having contact with daughter his until four-year old supposedly answered, 6, September period of approxi- “THANK YOU [sic] ALSIO FOR SAV- mately months. meantime, MY Despite ING LIFE.” the mandates to Plaintiff Gloria stop, Morris super- conducted a allowed eight total of vised visits sessions with her daughter. the child. She also TDPRS contacted finally the child’s parent, foster allowed the urging child to that they return home do everything possible dismissed ensure termination suit without child not be parents. prejudice. returned to her The agency continues to' main- tain that the plaintiff parents molested Others attempted to conduct FC with child, their and the family remains under Hilary but attained no results. when Once supervision. TDPRS Plaintiff Jim Morris the child typed, “MGXAEER,” she told job lost juvenile his as a detention Karen officer Goforth that it spelled, “Momma, I because of the you.” love accusations and Plaintiffs When showed anatomical cor- maintain that rect figures charges human abuse de- body during a stroyed CTPS, session at their marriage. Hilary only referred to the male’s genitalia as a “dangy” and the Following child, return of their Plaintiffs “yah.” female’s as a Only Dearborne filed the action below alleging, pursuant to produce any could legible results from the § U.S.C. deprivations of proce- FC, only Dearborne with help dural and substantive rights, FC get could the child to use anatomically sexual harassment IX, under Title correct sexual terms. During another of § et seq., violations of the U.S.C. sessions, it was observed that the child Individuals with Disabilities in Education was not looking at keyboard while she (“IDEA”), Act 20 U.S.C. et seq., typed, and that the output would change negligence, and intentional torts. when Dearborne was not looking at the screen. It was also noted that Dearborne Dearborne moved for summary judg- was supporting the- child’s wrist and eras- ment and dismissal of Plaintiffs’ suit for ing letters allegedly typed the child. failure to state a claim upon which relief Those observing the pre-schooler within can granted. See Fed.R.CivP. 56; *8 the few months after she was taken from 12(b)(6). In her motion she asserted the her parents noted that she could not read. affirmative' defenses of qualified immunity, Yeager, Polly a relative of Plaintiff Gloria statutory immunity, and the statute of lim- Morris, informed Superintendent, WISD itations, as well challenged as the eviden- Neill, Marshall as early 1992, as October tiary and legal bases of claims made that the child could not read or write the Plaintiffs under Title IX and the IDEA. messages attributed to her. Yeager pre- Neill
sented with a writing sample, in district court granted Dearboriie’s which the child barely was able to motion for summary write judgment as to Plain- her own name. Additionally, Hilary claims, tiffs had Title IX but denied it as to all no motor skill defect required that her to other claims. Dearborne contends that be assisted in typing. Despite this, and the district court erred in not granting her despite WISD’s policy that the FC was not motion as to all of Plaintiffs’ claims and to be used on children without motor skill now brings the appeal. instant
665 liability long as damages civil officials STANDARD AND II. JURISDICTION reasonably have could actions their as REVIEW OF rights the consistent thought been outset, that we note we theAt id. violated. See to have are they to the appeal over jurisdiction have protected by generally an official Whether lawof questions upon turns it that extent personally be held immunity may qualified Jones, 515 v. See Johnson of fact. and not unlawful action allegedly for an liable 2151, 132 304, 310-12, 115 S.Ct. U.S. “objective legal reasonable on the turns Forsyth, (1995); v. Mitchell 238 L.Ed.2d action, light the assessed ness” 2806, 86 528, 511, 105 S.Ct. 472 U.S. “clearly established” that were legal rules (1985); v. Lubbock Hassan 411 L.Ed.2d v. taken. Anderson time it was at 1075, Dist., 1078 55 F.3d Indep. School 639, 635, 107 S.Ct. 483 U.S. Creighton, Cir.1995). district review We Har (1987)(quoting 3034, 523 L.Ed.2d 97 de summary judgment denial court’s 2727). 818-819, low, at S.Ct. as novo, standard the same applying Hassan, at 55 F.3d court. See district matter, in assess As threshold .a appropriate is Summary judgment 1079. en immunity, we qualified a claim ing most light in the if record viewed only the The first analysis.6 three-part in a gage “that discloses to the non-movant favorable have as plaintiffs is whether inquiry materi any as to issue genuine there is no of a constitutional a violation serted enti is moving party that al fact and Gilley, v. U.S. Siegert all. See at law”. a matter judgment to as tled L.Ed.2d 277 232, 111 S.Ct. 56(c); see id. Fed.R.Civ.P. 5 F.3d (1991); Klevenhagen, Rankin (5th Cir.1993). Secondly, ana 103, 105 III. DISCUSSION issue, we at specific conduct lyzing the constitutional whether determine must U.S.C. under Claims A. 1% Plaintiffs’ at time clearly established § 1983 Siegert, 500 U.S. acted. See defendant pursuant claims brought The Plaintiffs law was not If the S.Ct. Dear- alleging that to U.S.C. established, not could an official clearly pro- due their substantive borne violated sub anticipate to expected reasonably be family integrity to maintain rights cess she nor could developments, legal sequent 'sexual free from to be Hilary’s right for the law to “know” be said fairly procedural their harassment, well as as identified previously bade conduct prior consulted right to be process due However, say is not to “[t]his unlawful. Hilary’s individualized FC the use of by quali is protected action an official asserts program. educational very action immunity unless fied immunity qualified entitled to that she is unlaw held been previously question has claims, and that on Plaintiffs’ pre light in the say that ful; it but granting in not court erred the district ap must law the unlawfulness existing basis. summary judgment on Anderson, 483 U.S. at parent.” omitted). (internal citations rule, government general aAs “clearly the term have also noted discretionary functions performing officials necessarily refer does not established” immunity. See qualified *9 are entitled factually on is 818, precedent that 800, commanding 457 U.S. Fitzgerald, Harlow v. holds or that bar (1982). the ease at all-fours 2727, L.Ed.2d 396 73 102 S.Ct. in is unlaw- question very action that immunity, shields “good faith” Qualified, or 2250, 48, 42, 101 L.Ed.2d 108 S.Ct. requires a show- also Liability 1983 6. under dispute that (1988). parties do not The 40 deprivation of a constitu- ing that actions, this subject of made acting Dearborne's by person a right was committed tional law. suit, Atkins, color of state under were taken v. See West state law. under color 666 ful. See v. Indep. Ysleta School her right to be free of sexual harassment Jefferson Dist., 303, (5th Cir.1987). 817 F.2d 305 by were violated Dearborne. The district The constitutional is right clearly estab court denied Dearborne’s motion for sum- lished if the unlawfulness of the conduct mary judgment claims, on these finding would apparent to a reasonably compe that the bodily child’s integrity was impli- tent official. See Taylor Doe v. Indep. by cated the FC during sessions which she Dist., (5th School 15 455 F.3d Cir. was seated on her lap, teacher’s her hand 1994)(en banc). “Further, the applicable guided was by teacher her she was law that binds the conduct of officeholders exposed to vulgar and threatening mes- must be clearly established at the very sages. Dearborne challenges holding, moment that the allegedly actionable con arguing that the touching alleged was in- duct was Ahearn, taken.” Stem v. that, nocuous and according to the Plain- (5th Cir.1990). F.2d Courts cannot facts, tiffs’ version of the Hilary did not
use the luxury hindsight to support a understand the messages. finding of unreasonableness in light of case published law after question the acts in Plaintiffs liken Hilary’s treatment place. Stem, took 5; 908 F.2d at see to that of a child who was sexually molest Harlow, also U.S. ed a teacher Taylor in Doe v. Indep. 2727. Finally, “we must determine wheth Dist., (5th School 15 F.3d Cir.1994), or er the record shows that the violation oc a child who was lashed curred, to a chair for gives or at two least genuine rise to a days in v. issue of Ysleta Indep. material fact as to School whether the Jefferson Dist., (5th actually defendant 817 F.2d Cir.1987). in engaged the conduct Howev that er, violated clearly-established right.” these cases are so far removed factual Kerr v. Lyford, (5th 171 F.3d ly from the circumstances of the case at Cir.1999)(quotation omitted). and citation bar they do not inform our decision. This third prong issue, as Dear- Both Doe and involved interfer Jefferson borne does not challenge on appeal the ence with a physical child’s well being that core pleaded facts by Plaintiffs—her role posed grave risk damage. Sitting on FC, the use of the the contents of the lap, teacher’s typing messages that are printouts, FC or the resulting removal of incomprehensible does not pose such a Hilary from her home. threat. There is no basis in logic prece dent for the proposition we find that the the constitu
If official’s con duct protection violated tional clearly law, bodily established integrity we then consider whether the- freedom from sexual harassment prohibit a conduct. objectively Spann unreasonable. See teacher from holding preschool Rainey, 1110, 1114 Cir.1993). F.2d her lap, guiding her arm or typing words that the child does not understand. There
Dearborne contends that she is entitled is no constitutional prohibition to qualified such con immunity because her actions tact between a teacher did not and a young violate clearly child. established law and therefore her actions find that objectively were Dearborne is enti reason- able tled qualified under the immunity circumstances. According- Plaintiffs’ ly, we will now consider -her claims based on contention violation Hilary’s that the district court erred not grant- bodily integrity and to be free ing her qualified immunity from Plaintiffs’ of sexual harassment. due process claims. £ The Right to Family Integrity Right to Bodily Integrity and
Freedom From Sexual Harassment clear, It is and Dearborne does Plaintiffs claim Hilary’s not dispute, substantive that the protects constitution *10 due process right bodily to integrity and the right to family integrity. Twenty
667 recognition longstanding preme Court’s involvement years before familial protects the Constitution that recog- Plaintiffs, Court Supreme the the practices, and and relationships ais family integrity to nized that the and direction interest parental “[t]he by the due guaranteed liberty of form central is child’s education of a control Amend- Fourteenth the clause of process constitutionally protected family’s the Illinois, to Stanley v. ment. See Brantley, 718 F.2d rights.” (1972). privacy 1208, 551 31 L.Ed.2d 645, 92 S.Ct. Nebraska, 262 1358, v. citing Meyer stated Court Supreme the Stanley, In 625, 1042 390, L.Ed. 67 43 S.Ct. U.S. that: (1923). to send her decision Fyfe’s Mrs. emphasized frequently has “The Court protected school was to a private child family. The the of importance the the and Amendment under the First one’s to raise and conceive to rights rec- rights privacy of familial penumbra essential, been deemed have children Court. by Supreme the ognized man, ... of and rights ... civil basic property no than leaves precious far more at 403. This reaffirmation rights Id. the us that of constitu- cardinal with existence concerning It is rights. doubt the child of 1992-93. and nurture families custody, for protection care tional pri- whose alleged a violation parents, sum,-Plaintiffs in the first In have reside prep- include is integrity freedom which family and mary function of can nei- the state obligations by the Constitution. clearly protected aration integrity The hinder. supply nor ther violations process due S. Substantive protection found family unit has the conscience that shock of the Four- Clause the Due Process if the that even court held The district teenth Amendment....” un- cognizable not asserted were violations (internal citations 92 S.Ct. Id. at would theory, .they family rights der a omitted). Similarly, in Ho quotations and process due Plaintiffs’ substantive offend recognized this circuit Ray, v. dorowski to “a because, they rise if proven, rights aspect basic and essential the “most magnitude a outrageousness degree family right of privacy familial —the truly harm that or actual potential coercive inter without the together remain Harder, Uhlrig v. shocking.” conscience power awesome ference of the Cir.1995). (10th 567, 574 64 F.3d (5th 1210, 1216 F.2d state.” al- that Dearborne’s found court district Sugarman, v. Duchesne Cir.1988)(quoting harm, grave result leged conduct would Cir.1977)). (2nd In a 817, 825 F.2d culpable and, proof a coupled with when to the prior just years two case decided process due intent, would violate case, in this Plaintiffs alleged by incidents “those cannons it violates clause because a school em public whether we considered express which fairness decency daughter to her to send decision ployee’s English-speaking justice notions by protection afforded was school private York, 324 U.S. v. New Malinski peoples.” . Curlee, 902 v. Fyfe the constitution 89 L.Ed. 416-17, Cir.1990). F.2d (1945). such that conduct doubt have no court’s district challenges daughter her transferring Fyfe’s in Mrs. conscience-shocking substantive on ruling constitutional enjoys school private hold- a teacher stating Surles, Brantley protection. guid- lap child a ing preschool (5th Cir.1983), school public F.2d 1354 the conscience. shock her arm does alleg- ing discharged, cafeteria worker custody of taking Further, argues she private her son attended because edly harm child from protect public local than academy rather the conscience. not shock does likewise Su- reinforced Brantley school. *11 668 By assuming, for the purposes ap- pression.” of this Collins v. City Harker peal, facts different than those in Texas, Heights, 115, 126, 503 112 U.S. complaint,
Plaintiffs’ argu- Dearborne’s 1061, S.Ct. 117 L.Ed.2d (1992)(quota- ment fails to inform question of wheth- omitted). tion Once we determine wheth- er the district court’s shoeks-the-con- plaintiffs er a process substantive due ruling science is legally correct. abusive, violated irrational or malicious abuse of government power that ruled,
When district court conscience, shocks the it we did not must have the assess benefit of County of Lewis, what clearly Sacramento established legal standards S.Ct. (1998), governed 140 L.Ed.2d defendant’s actions at the Supreme Court’s application latest time of the incident at issue. See Petta at § shocks-the-conscience standard to a 1983 901-03.
claim process substantive due violation arising out of a death following a high- Applying Lewis and Petta to the speed police chase. Lewis reminds us that bar, case at we conclude that the district “the touchstone of process due protec is court was correct holding that a teach tion of against arbitrary the'individual ac er’s fabrication of sexual against tion government.” Id. at student’s father shocks the contemporary “[0]nly the most egregious official conduct effect, conscience. Plaintiffs maintain can be said arbitrary to be in the constitu that Dearborne utilized the highly contro tional omitted.) sense.” (quotations Id. versial FC device aas tool for concocting Lewis sets out question: threshold story of child abuse. The device was “whether the governmental behavior of the never intended to be on a four-year- used officer is so egregious, so outrageous, that old child who could neither read nor it may fairly said to shock the contem write, who did not know all alpha porary Lewis, conscience.” 118 S.Ct. at bet and who had physical no impairment. 1717 n. 8. If met, this standard is a court To contend that when such a child was must next determine whether there exist placed on Dearborne’s lap front of the historical examples of recognition of the facilitator with Dearborne guiding her claimed liberty protection at appro some hand, she somehow became transformed priate level specificity. See id. Be into a person literate possessed with a cause the Supreme Court determined that rich vocabulary and the ability the official express conduct issue Lewis did conscience, understanding not shock of complex sexual provides it and reli no further gious illumination of concepts only this final not step defies human ex analysis. perience, it reveals the truth of what was really transpiring. Based on the sum Lewis, Following we have held mary judgment record, evidence in this that “a plaintiff whose claim is suscep rational jury could conclude that proper tible to analysis with reference to a typed Dearborne’s, words were not Hi specific constitutional may still state lary’s they and that revealed the content claim under 1983 for a violation of his mind, not the life experi or her Fourteenth Amendment substantive ences of the child. Such behavior is an right, and have the claim abusive, irrational, malicious, and judged by oppres the constitutional standard sive use governmental which governs power. It right.” Petta v. Riv era, beyond Cir.1998). purview that any F.3d rational teacher “[T]he Due could governmental Process Clause of believe that the Four destruc teenth Amendment was tion of a pre family intended to based on fabricated evi vent government from its dence abusing power, is constitutionally allowed. See or employing it as an instrument op- Stanley, U.S. at 92 S.Ct. 1208. *12 n Plain- acknowledges that the Dearborne estab- clearly rights Were L Plaintiffs’ family right to a constitutional tiffs have lished? her fell argues but that actions integrity, have Plaintiffs that Having determined out for state exception carved within the constitutional of deprivation a from a child intervening protect to actors whether consider next we must rights, the argues that Alternatively, she abuse. at the clearly were established rights those and right the between line of demarcation Lewis, See conduct. time of Dearborne’s sufficiently clear was not exception the (1998). 1714 n. 5 at 118 S.Ct. a to allow reasonable 1992-93 during to consti- behavior to conform her teacher constitutionally protect Although Hi- of the context standards in tutional to be family integrity ed, to rights the lary’s case. governmental conscience-shocking free of ap success this Dearborne’s See unqualified. are absolute action not degree the upon large part, peal hinges, 248, 256, Robertson, 103 v. Lehr our of this case and the facts fit between of 2990-91, 614 L.Ed.2d 2985, 77 S.Ct. F.2d Ray, v. 844 in Hodorowski opinions relationship be the (1983)(holding La., 2 (5th Cir.1988), v.Doe State 1210 of merits constitu and child a parent tween (5th Cir.1993) and Kiser v. Gar 1412 F.3d cases”). “appropriate protection tional (5th Cir.1995), we rett, where 67 F.3d pro to necessary policies adopt can States to are entitled that social workers found health, welfare chil safety, and tect the dur actions taken immunity for qualified Massachusetts, 321 v. Prince dren. See allegations investigating course of ing the 438, 166, L.Ed. 645 158, 64 S.Ct. U.S. ranging periods of time abuse for of child reg (1944)(“the beyond not family itself is to months.7 weekend four from one interest”). aWhere public in the ulation 1412, Doe, child, 2 F.3d mistreated the state relies on has parent child, the contours includ proposition the protect to may intervene family in- rights protecting necessary, separating constitutional when ing, sufficiently particularized not were tegrity ter permanently or even parents from to inform of her conduct relationship. at the time parent-child minating the family. the Plaintiffs’ concerning 652, 92 1208 decisions at S.Ct. Stanley, 405 U.S. of himself Doe, on behalf sued In a father neglectful (“We question ... do not § 1983 under minor children his two their chil from may separated parents family right with dren.”) for interference challenge, but the facts Clause dis- Pocess pleadings and the Although Plaintiffs' judicial any misuse of the involve issue in terms case not opinion did court discuss trict Rather, family had process removed process. defendants of the substantive integrity, authority obtaining note a court we that some first without the children Process Due Further, on Procedural is bottomed cited Due Process the Procedural order. Amend- analysis. The Fourteenth Garrett, Clause 67 F.3d Kiser v. claim in Clause grants Clause Due Process ment’s Procedural Cir.1995), (5th grounded 1173-74 fundamentally proce- fair right to parents the exculpatory evi- failure disclose state’s dence, removed having their child their dures before alleged intentional unlike Kramer, U.S. Santosky v. home. See process. Because judicial abuse of the 753-54, L.Ed.2d 599 S.Ct. court in the distinct developed issue was (1982). in the case Arguably, the Plaintiffs procedural due appeal, and because nor on fundamentally pro- fair deprived of were bar by Dear- cases cited analysis in actor, Dearborne, inten- a state cedures when cir- distinguishable easily from borne are evidence tionally sought have fraudulent case, opin- express we no of this cumstances that the procedures state into the introduced qualified any potential claim ion about Hilary prior to the removal provide did action for denial immunity from cause their home. state process in the procedural due Plaintiffs Ray, F.2d 1210 Hodorowski proceedings. removal court child 1988), Due Procedural dealt we Cir. integrity, alleging that two 1208). social workers Stanley, 405 U.S. at employed the. state agency charged We held that the social workers could not with investigating allegations child abuse have known attempt that an to obtain tem- exculpatory withheld evidence and porary custody fabri- of the Hodorowski children cated evidence which interfered with his during an investigation reported right to the care custody of his chil- was á violation of the developed *13 during dren a four month investigation Supreme Court parental termination of an report. We held rights Hodorowski, that social cases. See 844 F.2d at workers could not have known that their conduct violated the right family integri- Original by Petition filed TDPRS Doe,
ty. 2 See F.3d at 1418. . sought an order appointing TDPRS tempo-
Dearborne also
subsequent
relies
our
rary managing
of Hilary
conservator
and
Garrett,
decision Kiser v.
temporary custody aof child during an ing reports child abuse rather than teach- investigation possible parental abuse.” ers. Each of the defendants was a child See id. at 1173. welfare official duty whose primary was to Kiser, In deciding we relied extensively investigate alleged instances of child on our Hodorowski, earlier decision alleged abuse.- All the conduct on which (5th Cir.1988). F.2d 1210 The Hodorow- plaintiffs rested their place claims took skis protective workers after the defendants had received indepen- violated them family right integrity by dent reports of child abuse. Hodorow- removing children ski, from them home for one we grappled with the appropriate bal- weekend without court order. We noted ance independence between for social that Supreme Court jurisprudence estab- charged workers with investigation of child lishing the right family for, integrity had protection abuse and family privacy. been in the formulated context of state We noted that other circuits have extended attempts to permanently paren- terminate professionals such prosecutori- absolute rights. tal See id. at 1217 (citing immunity, Santo- al analogizing their function to sky, 747-48, 455 U.S. at 102 S.Ct. 1388 and that of executive branch officials who in- where the two the center of the continuum prosecu initiate criminal vestigate tension, Hodorowski, create a overlap interests F.2d at 1213 tions. See may County family integrity properly be Costa Meyers v. Contra (citing Services, nebulous, F.2d and thus a de- characterized Social Department of Cir.1987) protection quali- may and Malachowski fendant claim Cir.1986)). (1st However, Keene, immunity.- F.2d 704 when the facts fied City of have that some courts it on the end of recognized place squarely of a case We also immunity pro to child interest is afforded absolute the continuum where state’s reasons policy family workers for negligible privacy tective service and where the by analogy prosecutors. than developed jurisprudence rather well Shelton, (citing Court, Mazor v. id. at 1215 Supreme from this circuit and the (N.D.Cal.1986); Hennes F.Supp. 330 immunity, qualified defendant’s defense of *14 Washington Department Social v. sey family right on a claim that the to based of Services, F.Supp. Health established, clearly not will integrity was (E.D.Wash.1985); Whelehan v. Coun fail. (W.D.N.Y. Monroe, F.Supp. ty of Here, contrast, have neither child we However, 1983)). of rejected we both temporary nor a re- investigators welfare concluding quali approaches, those primary duty is to moval. Dearborne’s fied, immunity than absolute strikes rather teach, possible ferret out instances of not for the eval and allows the better balance (even is, course, re- though she abuse motive for and reasonable uation report apparent to evidence of quired ac challenged worker’s of a ness welfare abuse). Moreover, allege Plaintiffs 1216. id. at tions. See fabricated the evidence family integ- to right The constitutional prior in instance with no abuse the first Doe, in 1992. well established rity was . any other source indication from were concerned and Hodorowski Kiser Thus, although child abuse had occurred. involving cases child strip a narrow with (over)zealously follow agents welfare. who to employees’ power investigative welfare may reports of child abuse up independent permanently, to opposed as temporarily, in that their have been on notice their We from homes. remove children right of violate the constitutional actions cases the facts of those determined involved, certainly it can come the families line between the close to the placed them Dearborne, teacher, a surprise no to constitutionally entitled are rule—families not free to manufacture that she was in interference governmental free of to be sexual abuse. cloth evidence of whole decisions, exception— and the raising that Plaintiffs’ claims therefore hold take temporary workers can child welfare well established within the squarely fall they have about whom custody of children integrity and family constitutional guar- order reports received govern- arbitrary, oppressive to be free of Hodorowski, 844 safety. their See antee stay in Hilary’s year three action. mental at 1217. F.2d care, with from all contact cut off foster state-initiated enduring while her father miscon argument Dearborne’s with- does not fall proceedings termination finding of significance of our strues the line, close to the or even exception, in the Hodorowski-type cases. nebulousness a remove temporarily that allows state to interference claiming governmental Cases days -a few her home for child from integrity prop are family while an investi- them, protect months to a case few placing erly analyzed by is conduct- reported child abuse basis, gation of between along a continuum by case for clearly established has been chil ed. It protecting clear interest the state’s that, outside twenty years than more priva interest family’s and a clear dren promote intervention it in the state’s place a case the facts of cy. When children, health and welfare of integri- teacher be general, aware of well-devel- ty family omitted)). protected by oped legal of a unit is principles.”(footnote Constitution. Dearborne cannot claim 6. parameters
that because the Causation investi- gative power specialized child protective Dearborne9 contends that merely she professionals may service have been un- reported abuse allegations, while a state clear, she was unable to determine wheth- judge court made the decision to remove er she was free to fabricate sexual abuse Hilary from her home and therefore allegations against her student’s parents. any Dearborne did not cause constitution- court, al violations. The district citing Objective
5.
Reasonableness
Tunnell,
Snell
920 F.2d
Cir.1990), stated that direct participation
if Dearborne’s conduct vio
Even
necessary
is not
liability
under
clearly
lated a
established constitutional
Any official who
“causes”
citizen to be
right, she is entitled
qualified immunity
deprived of
rights
her constitutional
can
if the conduct
objectively
reasonable.
also be held liable. The district court
Spann,
short,
tions the instant were TTEA, Corporation, A Texas subjected patently procedures unfair Plaintiff-Appellant, actor, and, through Dearborne as a state v.
consequently, the government arbitrarily,
unconstitutionally,
denied them custo-
PUEBLO;
DEL
YSLETA
SUR
Jose G.
dy
procedure.
of their child as a matter of
Sierra, Presiding Judge of the Ysleta
Thus, it
majority
seems to me that the
Pueblo; Angela
Luhan,
Del Sur
R.
Supreme
ignores
Court’s recent itera
Judge
Pueblo;
Associate
of the Isleta
long
tion of the
established rule that
The Tribal Court of the Ysleta Del
particular
provides
“where a
amendment
Pueblo, Defendants-Appellees.
Sur
explicit
an
textual source of constitutional
protection against
particular
gov
sort of
No. 98-50582.
behavior,
Amendment,
ernment
generalized
the more
notion of substantive
United
Appeals,
States Court of
process,
guide
analyz
due
be the
must
for
Fifth Circuit.
County
ing
plaintiffs]
[the
claims.”
Lewis,
Sacramento
July
1999.
1708, 1714,
(1998)
S.Ct.
(citations omitted) quotation marks (describing “the rule ” 1). Although
Graham speaks this rule
a “particular preempting amendment”
consideration of the claim under the sub doctrine, process
stantive due the reason the rule Graham —that the Su
preme “always Court has been reluctant expand the concept of substantive due
process”2 clear to me that an —makes analysis procedural under the
doctrine preempt should our consideration plaintiffs’ claim under the doctrine Thus, process. substantive due while I
concur with the majority that the case remanded,3
must be I respectfully dis
agree majority’s analysis of the
plaintiff’s allegations as a substantive due
process claim. Connor,
1.
agree
Graham v.
majority’s
U.S.
I
disposition
with the
(1989).
104 L.Ed.2d The Lewis
plaintiffs’
involving
bodily
claims
apply
Court did
due
the doctrine of substantive
integrity and freedom from sexual harass-
process’
*19
after it concluded that the Fourth
ment, the Individuals with Disabilities Edu-
plaintiffs'
Amendment did not cover
Act,
cation
and state law.
Lewis,
claim.