T. W., a minor, by Tracy M. Wilson, his next friend, mother and natural guardian, Plaintiff-Appellant, versus THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, a subdivision of the State of Florida, KATHLEEN MARY GARRETT, individually, FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Defendants-Appellees.
No. 09-12623
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
JUNE 29, 2010
D. C. Docket No. 07-00155-CV-ORL-28-GJK
Appeal from the United States District Court for the Middle District of Florida
(June 29, 2010)
PRYOR, Circuit Judge:
This appeal presents the questions whether a teacher violated a disabled student‘s constitutional right to be free from excessive corporal punishment or discriminated against the student solely by reason of his disability, in violation of a federal statute, when the teacher physically and verbally abused the student on several occasions. The student, T.W., was enrolled for several months in Kathleen Garrett‘s autism class at a middle school in Seminole County, Florida. On a few occasions, Garrett physically restrained T.W. in response to his disruptive conduct. Garrett also occasionally called T.W. names, provoked him, and used profanity around him. There is evidence that Garrett‘s actions aggravated T.W.‘s developmental disability, but there is no evidence that Garrett caused T.W. to suffer any serious physical injuries. T.W., by and through his mother, complained that Garrett and the School Board of Seminole County violated his rights under the Due Process Clause of the Fourteenth Amendment,
I. BACKGROUND
We divide our discussion of the background of this appeal in three parts. First, we discuss T.W.‘s disability. Second, we discuss the incidents that gave rise to T.W.‘s claims against Garrett and the School Board. Third, we discuss the procedural history of this appeal. Because this appeal is from a summary judgment, we construe all facts in the light most favorable to T.W. Peterson v. Baker, 504 F.3d 1331, 1336 (11th Cir. 2007).
A. T.W.‘s Disability
T.W. exhibited developmental and behavioral problems at an early age. T.W. was aggressive, threw temper tantrums, and was extremely sensitive to touch and noise. Professionals at the Kennedy Krieger Institute in Baltimore, Maryland, administered T.W.‘s first formal psychiatric evaluation when he was five years old and diagnosed him with anxiety disorder. T.W. received psychiatric treatment from the Kennedy Krieger Institute for about a year and a half and later received treatment from Key Point Mental Health and Bayview Medical Center. Professionals at the Bayview Medical Center diagnosed T.W. with separation
As a student with a disability, T.W. was eligible for and received special education services at the public schools he attended. School officials initially classified T.W. as a student with a speech and language impairment. The officials later reclassified T.W. as a student with an emotional disturbance, and then as a student with autism or pervasive developmental disorder. T.W. exhibited several behavioral problems at the schools he attended in Baltimore, and these problems became more severe when he started middle school. T.W. struggled to obey rules, participate in class activities, and complete his work. He was aggressive toward himself and others; pushed, growled, and bit; threatened to blow up the school and to report false allegations of staff abuse; cursed; climbed on objects inappropriately; and scratched his head excessively. Crisis intervention staff at the middle school T.W. attended in Baltimore physically restrained him and removed him from the classroom on several occasions.
B. Incidents Leading to T.W.‘s Complaint
When T.W. was fourteen years old, he and his mother moved from
Two aides assisted Garrett in the classroom. The first, Jennifer Rodriguez, assisted Garrett during both the spring and fall of 2004. The second, Sabrina Mort, assisted Garrett during the fall of 2004.
When T.W. enrolled at South Seminole in 2004, Garrett had been an autism teacher at the school for about four years. Garrett previously had taught mentally disabled students at Indian Trails Middle School, another school in Seminole County, for seven or eight years. In 1999 and 2000, administrators at Indian Trails received four complaints that Garrett had mistreated her students. Administrators at Indian Trails investigated three of these complaints and concluded that there was insufficient evidence to warrant disciplinary action against Garrett. The Professional Standards Division of the School Board investigated the fourth complaint in conjunction with a local law enforcement agency, but the investigation was unable to substantiate the complaint. Administrators also
By March 2000, the executive director of middle schools for Seminole County was aware of “an escalating problem [of parental complaints] with Garrett.” He advised the superintendent to transfer Garrett from Indian Trails to a different school in Seminole County. In June 2000, the School Board approved Garrett‘s transfer from Indian Trails to South Seminole. No one informed the principаl of South Seminole about the complaints of abuse that had been lodged against Garrett at Indian Trails, and no one advised the principal to monitor Garrett for potential abuse.
Garrett engaged in a number of abusive behaviors while she was a teacher at South Seminole, several of which are relevant to this appeal. Garrett used profanity in her classroom daily and directed it at her students, including T.W. Garrett told T.W. that he stinks and called him lazy, an asshole, a pig, and a jerk. She frequently teased T.W. and agitated him until he became angry. Once, when Mort cautioned Garrett that she should “watch what she was saying because the kids could go home and tell the parents everything she said,” Garrett responded that the students “were all stupid shits and dumb asses and they would . . . never go home and tell.” Mort testified that, at least once a week, Garrett would “pick and
Garrett had a reputation as a disciplinarian. She used physical force against several of her students, including T.W. Garrett spanked one student and hit another student on the back of the head multiple times after the students had urinated on themselves; she flicked a student‘s ears until they were “blood red“; she bent a student‘s thumb backwards until the student screamed; she raised her fists at a student; and she restrained several students in an inappropriate mаnner.
Garrett also failed to protect her students from harm. When one of Garrett‘s assistants tried to stop a student from repeatedly banging his head on the desk, Garrett said, “If the little shit wants to bang his head, let him bang his head.” On several occasions, Garrett left a student in clothing soiled by urine and feces.
Garrett used physical force against T.W. on five separate occasions. T.W. was slightly over five feet tall and weighed about 150 pounds when these incidents occurred. Garrett was nearly six feet tall and weighed about 300 pounds. Garrett had completed two courses on physical restraint techniques and was certified in crisis prevention intervention.
The first incident occurred in the spring of 2004, only a few days after T.W.
The second inсident occurred during the fall of 2004. While T.W. was seated at a table, Garrett asked him to do something. Instead of complying with Garrett‘s request, T.W. rose from the table and walked away. Garrett attempted to restrain T.W. while he stood, but T.W. turned around and began swinging his hands at her. Garrett forced T.W. to the floor and pulled his right leg up against the back of his left leg. Garrett held T.W. in this position for two to three minutes. After T.W. calmed down, Garrett released him, and T.W. returned to the table. A witness, Mort, observed that “the strength that [Garrett] took [T.W.] down with . . . was hard,” and “[t]hey both probably got hurt that day.” Mort testified that it was
The third incident also occurred during the fall of 2004. T.W. started scratching an insect bite while he was in Garrett‘s classroom. Garrett asked him to stop, but he continued scratching. According to Mort, T.W. “kept digging and digging at it, scratching and scratching at it” until his skin became “red and raw looking.” Garrett approached the table where T.W. was seated and pushed T.W.‘s arms down to prevent him from scratching the bite. T.W. began “screaming and hollering and cussing.” Garrett pulled T.W. up from his chair without sliding his chair away from the table, which caused T.W.‘s legs to hit the edge of the table. Then Garrett forced T.W. against the table, held his arms behind his back, and placed her weight against his back to hold him in that position. Garrett held T.W. in that position for about three minutes, even though T.W. told Garrett more than once that she was hurting him. Garrett told T.W. that she would release him as soon as he agreеd to do his work. True to her word, Garrett released T.W. when he told her he would return to his work. Instead of returning to his work, T.W. kept scratching the insect bite. Garrett told T.W. to go to the cool down room, but he refused.
Garrett then led T.W. into the cool down room and shut the door. When T.W. started “hollering,” Garrett went into the cool down room with T.W. and shut
Rodriguez observed a fourth incident but could not recall exactly when it occurred or what caused it. While T.W. was standing, Garrett used one of her hands to pin both of T.W.‘s hands behind his back and kept them there as she guidеd him to the cool down room. According to Rodriguez, it is inappropriate to pull a student‘s arms behind his back because “it can cause asphyxiation.”
Mort observed a fifth incident during the fall of 2004. Garrett had placed T.W. in the cool down room and turned off the lights. Garrett sat in front of the
T.W.‘s mother, Tracy Wilson, observed bruises on T.W.‘s lower arms on two occasions. When she asked T.W. what caused the bruises, T.W. said that Garrett had hurt him. Wilson never sought medical treatment for the bruises, never confronted Garrett about the bruises, and never asked to observe Garrett‘s class.
T.W.‘s behavior deteriorated because of his experience in Garrett‘s classroom. According to Wilson, T.W. had trouble sleeping, became stressed, developed trust issues and panic attacks, started “urinating all over the place,” cried to and from school, and refused to close doors. Dr. Day, a psychologist retained by Wilson, concluded that Garrett‘s actions “aggravated [T.W.‘s] developmental disability, increasing his anger, and decreasing his adaptive functioning.” Dr. Day also opined thаt T.W.‘s decision to drop out of school “can be directly traced back to his experiences with Ms. Garrett.” Dr. Upchurch, another psychologist retained by Ms. Wilson, concluded that T.W. “was indeed traumatized and abused in the
On Friday, October 22, 2004, Mort and Rodriguez met privately with the vice principal of South Seminole, Agosto, to express their concerns about Garrett‘s behavior in the classroom. Rodriguez never had expressed any concerns about Garrett‘s behavior to Agosto before this meeting, and Mort had mentioned to Agosto only in passing that Garrett “was being too rough with the kids.”
Mort and Rodriguez decided to meet with Agosto because of an incident that had occurred the previous day. Garrett had used her full body weight to restrain a student on top of his desk and had held the student‘s head down so that his neck was against the edge of his desk, which caused his eyes to swell аnd his lips to turn blue. Agosto expressed Mort‘s and Rodriguez‘s concerns to the principal of South Seminole, Robin Dehlinger. The following Monday, Agosto and Dehlinger called
Police arrested Garrett on charges of child abuse on November 10, 2004. Garrett resigned her teaching position two days later. Garrett was charged in a Florida court with five counts of child abuse based on allegations that Garrett abused four of T.W.‘s classmates, but the state dropped one count at trial. The jury deliberated on two counts and returned a verdict of guilty on one count, but the court withheld adjudication.
After Garrett was suspended, an investigator for the Professional Standards Division seized the computers that were in Garrett‘s classroom and performed a forensic analysis. Mort and Rodriguez had alleged that Garrett engaged in masochistic or sadistic sexual behavior outside the classroom and that she may have used the computers to facilitate these encounters. The investigator discovered images on the hard drive of one of the computers of Garrett engaged in sexual acts that were masochistic or sadistic in nature. Dr. Danziger, a psychiatrist retained by T.W., opined that Garrett likely “suffered from both sexual masochism and sexual sadism.” According to Dr. Danziger, Garrett‘s verbal and physical abuse of her students was “consistent with someone whose private sadistic sexual practices spilled over into the classroom setting.”
T.W., by his next friend, mother, and natural guardian, Tracy Wilson, filed a complaint against Garrett and the School Board. T.W.‘s complaint asserted three claims. First, the complaint alleged that Garrett and the School Board violated his right under the Due Process Clause of the Fourteenth Amendment “to be free from unnecessary and unreasonable force or intentional, reckless or deliberately indifferent or oppressive conduct that causes emotional or psychological harm,”
Both Garrett and the School Board moved for a summary judgment against all claims. The district court granted the motions as to the federal claims and declined to exercise supplemental jurisdiction over the claim under Florida law, which was dismissed without prejudice. Because the district court concluded that the federal claims against Garrett failed as a matter of law, the district court did not decide whether Garrett was entitled to qualified immunity.
We review a summary judgment de novo, applying the same legal standard as the district court. Peterson, 504 F.3d at 1336. “Summary judgment is warranted only when ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.‘” Id. (quoting
III. DISCUSSION
We divide our discussion of this appeal in two parts. We first discuss whether a reasonable jury could conclude that Garrett or the School Board violated T.W.‘s right to due process under the Fourteenth Amendment. We then discuss whether a reasonable jury could conclude that the School Board discriminated against T.W. solely by reason of his disability, in violation of section 504 of the Rehabilitation Act.
The Due Process Clause protects individuals against arbitrary exercises of government power, but “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.‘” County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S. Ct. 1708, 1716 (1998) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129, 112 S. Ct. 1061, 1071 (1992)). To be arbitrary in the constitutional sense, an executive abuse of power must “shock[] the conscience.” Id. at 846, 118 S. Ct. at 1717. “[T]he constitutional concept of conscience shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law‘s spectrum of culpability.” Id. at 848, 118 S. Ct. at 1717. The Due Process Clause does not “impos[e] liability whenever someone cloaked with state authority causes harm.” Id. “[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. at 849, 118 S. Ct. at 1718. Both this Court and the Supreme Court have “said repeatedly that the Fourteenth Amendment is not a ‘font of tort law’ that can be used, through section 1983, to convert state tort claims into federal causes of action.” Neal ex rel. Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1074 (11th Cir. 2000); see also Lewis, 523 U.S. at 848, 118 S. Ct. at
As a threshold matter, we must address T.W.‘s contention that Garrett‘s actions do not constitute corporal punishment because our resolution of this issue “dictates the kind of analysis we must adopt for [his] claim.” Id. at 1072. T.W. asserts that evidence that Garrett verbally abused her students, physically abused students other than T.W., and engaged in sadistic sexual behavior supports an inference that Garrett restrained T.W. out of malice and sadism, not for the purpose of discipline. “Not all corporal punishment cases arise under . . . circumstances” where “school officials, subject to an official policy or in a more formal disciplinary setting, mete out spankings or paddlings to a disruptive student.” Id. Many “involve less traditional, more informally-administered, and more severe punishments.” Id. The key inquiry is not what form the use of forсe takes but whether the use of force is “related to [the student‘s] misconduct at school and . . . for the purpose of discipline.” Id. at 1073; see also Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 173–74 (3d Cir. 2001).
With respect to the fifth incident, when Garrett tripped T.W. as he left the cool down room, the evidence supports a reasonable inference that Garrett‘s use of force was unrelated to T.W.‘s disruptive behavior and lacked a disciplinary purpose. This Court has yet to articulate the analysis that applies when a school official‘s use of force does not constitute corporal punishment. T.W. contends that we should perform an analysis that is different from the analysis we perform for corporal punishment, but he never explains that alternative analysis, and he
T.W.‘s claim of excessive corporal punishment has “an objective and a subjective component, both of which must be met before a school official may be subject to liability.” Neal, 229 F.3d at 1075 n.3. The evidence must support a reasonable inference that the punishment is “obviously excessive” as an objective matter and that Garrett “subjectively intend[ed] to use that obviоusly excessive
We first consider the need for Garrett‘s use of force against T.W. Even Garrett acknowledged in her deposition that a teacher should use physical force against an autistic student only as a last resort. In considering whether there was a need to use force, we do not express any judgment as to the desirability of corporal punishment as a policy matter. Instead, we look at the circumstances surrounding Garrett‘s use of force to determine whether the force is “capable of being construed as an attempt to serve pedagogical objectives.” Gottlieb, 272 F.3d at 174.
The evidence establishes that Garrett‘s use of force against T.W. “is capable of being construed as an attempt” to restore order, maintain discipline, or protect T.W. from self-injurious behavior. Id. During the first incident, Garrett restrained T.W. only after he refused to go to the cool down room, called Garrett names, and
T.W. contends that the need for Garrett‘s use of force was “non-existent” because Garrett provoked him to misbehave. Although there is evidence that Garrett frequently teased T.W. and agitated him until he became angry, there is scant evidence that Garrett provoked T.W. to disrupt class during the four incidents described above. The only evidence in this regard is Rodriguez‘s testimony that Garrett said something to provoke an argument with T.W. during the first incident, but Rodriguez explained that Garrett had angered T.W. by telling him that he should expect a different teaching style in her classroom. This evidence does not support a reasonable inference that Garrett provoked T.W. to misbehave so that she could restrain him.
T.W. also contends that evidence that Garrett verbally abused her students, physically abused students other than T.W., and engaged in sadistic sexual
We next consider the relationship between the need for the use of force and the amount of force administered. With respect to the four incidents involving restraints, the evidence establishes that Garrett restrained T.W. inappropriately. The straddling technique Garrett employed during the first incident was
Finally, we consider the extent of T.W.‘s injuries. Though the “extent and nature of the injury” is only one factor in our analysis, it is an important factor. See Neal, 229 F.3d at 1076. For example, this Court concluded that choking a student until he lost his breath and sustained blue and red bruises and a scratch on
T.W. suffered only minor physical injuries. His mother saw bruises, but there is no evidence that T.W. experienced anything more than transient pain as a result of Garrett‘s restraints, and T.W. never received medical treatment for any physical injuries. See Peterson, 504 F.3d at 1337.
Unlike the plaintiffs whose claims we considered in Neal, Peterson, and Kirkland, T.W. presents evidence of psychological injury. Viewed in the light most favorable to T.W., this evidence establishes that Garrett‘s conduct aggravated T.W.‘s developmental disability, exacerbated his behavioral problems, and caused symptoms of post traumatic stress disorder. This Court has never considered whether corporal punishment that causes only psychological injuries can amount to a violation of substantive due process. We are mindful that students like T.W., who suffer from severe developmental disabilities, are particularly vulnerable to
We need not decide whether corporal punishment that causes only psychological harm is categorically below the constitutional threshold. After considering the totality of the circumstances, including T.W.‘s psychological injuries, we conclude that Garrett‘s conduct was not so arbitrary and egregious as to support a complaint of a violation of substantive due process. We do not condone the use of force against a vulnerable student on several occasions over a period of months, but no reasonable jury could conclude that Garrett‘s use of force was obviously excessive in the constitutional sense. Peterson, 504 F.3d at 1336-38; see also Brown ex rel. Brown v. Ramsey, 121 F. Supp. 2d 911, 923–25 (E.D. Va. 2000). Because Garrett‘s use of force was not obviously excessive, we need not consider whether the force Garrett used presented a reasonably foreseeable risk of serious bodily injury. Peterson, 504 F.3d at 1338 n.6.
Our decision “comports with the Supreme Court‘s mandate to remain vigilant in policing the boundaries separating tort law from constitutional law.” Nix v. Franklin County Sch. Dist., 311 F.3d 1373, 1379 (11th Cir. 2002). Although the circumstances that gave rise to T.W.‘s claim are truly unfortunate, the Due Process Clause imposes liability only in “extraordinary circumstances.” Id. We disapprove of Garrett‘s alleged actions in no uncertain terms, and we are sympathetic to the harm that T.W. and his classmates suffered as a result of Garrett‘s misconduct. Nevertheless, we cannot say that the exercises of corporal punishment and force in this appeal are “‘so brutal, demeaning and harmful as literally to shock the conscience of the court.‘” Neal, 229 F.3d at 1075 (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).
The dissent makes much of collateral evidence that parents at Indian Trails lodged complaints against Garrett, that Garrett verbally and physically abused T.W.‘s classmates at South Seminole, and that Garrett bullied her aides and her fellow teachers. This evidence undoubtedly paints Garrett in a negative light, but it does not support a conclusion that Garrett‘s use of force against T.W. was
The dissent accuses us of ignoring or discounting evidence that suggests that Garrett knew her conduct was inappropriate and that Garrett acted with malice, but Garrett‘s state оf mind is wholly irrelevant to our inquiry under the objective component of Neal. As we explained in Peterson, “if the use of force was . . . not excessive as a matter of law and was a reasonable response to the student‘s misconduct—then the subjective intent of the school official is unimportant.” 504 F.3d at 1337 n.5 (internal quotation marks omitted); see also Neal, 229 F.3d at 1075 n.3; Wise, 855 F.2d at 563 n.4 (explaining that, if the force was not excessive as a matter of law, “the intent of the one who administers the punishment is
The dissent also accuses us of ignoring or discounting evidence related to Garrett‘s use of force against T.W., but we have carefully considered the circumstances surrounding each use of force and evaluated those incidents individually and collectively. Unlike the dissent, however, in determining whether Garrett‘s conduct was so brutal and inhumane as to amount to a constitutional violation, we have remained mindful that the Due Process Clause does not “impos[e] liability whenever someone cloaked with state authority causes harm.” Lewis, 523 U.S. at 848, 118 S. Ct. at 1717. Even viewing all the evidence in the light most favorable to T.W. and drawing all reasonable inferences in his favor, T.W.‘s claim against Garrett fails as a matter of law because Garrett‘s conduct is not the kind of “arbitrary, egregious, and conscience-shocking behavior” that is actionable under the Cоnstitution. Neal, 229 F.3d at 1075. We do not suggest, as the dissent contends we do, that any disciplinary act undertaken by a teacher is per se reasonable. Nor could we, in the light of precedents such as Neal. We conclude instead that Garrett‘s actions against T.W. do not rise to the exacting standard required under the Due Process Clause.
The district court also correctly granted summary judgment against T.W.‘s claim under section 1983 against the School Board. “[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Because no reasonable jury could conclude that Garrett violated T.W.‘s constitutional rights, T.W.‘s dependent clаim against the School Board fails too.
B. Section 504 of the Rehabilitation Act
T.W. advances two distinct theories of liability under section 504. First, he asserts that the School Board itself intentionally discriminated against him when it “place[d] a teacher with a proclivity toward abuse with students who would not complain.” Second, he asserts that Garrett intentionally discriminated against him and the School Board is liable for Garrett‘s misconduct under the theory of respondeat superior. We address each theory of liability in turn, and we conclude that T.W.‘s claim under the Rehabilitation Act fails as a matter of law under either theory.
First, no reasonable jury could conclude that the School Board itself intentionally discriminated against T.W. on the basis of his disability. This Court has not decided whether to evaluate claims of intentional discrimination under
Second, we consider whether the School Board is liable for Garrett‘s misconduct under a theory of respondeat superior. Although this Court has yet to
Even assuming that the Rehabilitation Act, like the Americans with Disabilities Act, permits the School Board to be held vicariously liable for Garrett‘s actions, T.W.‘s claim fails because no reasonable jury could conclude that Garrett intentionally discriminated against T.W. solely by reason of his disability. Although there is evidence that Garrett harbored animosity for T.W. and other students entrusted to her care, that evidence does not support a reasonable inference that Garrett abused T.W. solely because of his disability. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008). In all but the tripping incident, the evidence overwhelmingly establishes that Garrett restrained T.W. because he engaged in disruptive or self-injurious behavior. With respect to the tripping incident, even if the evidence supports an inference that Garrett tripped T.W. solely because of his disability, no reasonable jury could
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Garrett and the School Board.
There is no dispute that a student‘s right to be free from gratuitous violence or from excessive corporal punishment inflicted by teachers at public schools is protected by substantive due process under the
In determining whether such a constitutional violation has occurred, we must be mindful that this right is rooted in the broader and fundamental liberty interest in bodily integrity. Indeed, “[n]o right is held more sacred, or is more carefully guarded . . . than the right of every individual to the possession and control of his
In addition to the facts recounted by the majority, the record contains additional evidence the majority discounts or does not mention that, when properly considered, presents genuine disputes of material facts that must be resolved by a jury. These factual issues concern both the specific incidents of Garrett‘s use of force and the context in which they occurred. The record contains evidence that Garrett knew, through her training and experience, that her use of force and other classroom conduct viоlated both school policy and the professional standards of managing developmentally disabled students. There is also record evidence that Garrett deliberately ignored and violated these official mandates, sufficient to support an inference that her use of force was not motivated by any legitimate pedagogical reason, but instead was driven by malice and sadism.
A. Garrett‘s Training, Experience, and Classroom Demeanor
First, the majority fails to consider the evidence that Garrett knew that restraining and using force on T.W. was inappropriate. Garrett herself testified that she knew that corporal punishment of any kind, including spanking, hitting, kicking, biting, and throwing students, was specifically prohibited by the School
Significantly for our purposes, Garrett testified that she knew from her training3 that positive reinforcement in the form of “redirecting” T.W. to focus on another task when he acted “off-task”4 (i.e. when he deviated from what he had been asked to do, as a result of his disability) was the appropriate response. Garrett testified that she knew from her education and experience with autistic children that a teacher‘s use of force should be an “absolute last resort,” and that hitting a child to stop an off-task behavior would always be wrong.
Despite being trained on the appropriate methods for managing the behavior of autistic students, evidence indicates that Garrett consistently ignored these dictates to her students’ detriment. According to this record, the School Board was aware that Garrett‘s tenure at Indian Trails School, prior to being assigned to
Garrett was subsequently transferred to SSMS where she was hired to teach developmentally disabled students. As part of her preparation,5 Garrett knew that T.W.‘s disability manifested itself in several specific behaviors that were expected, normal, and uncontrollable for him. Specifically, T.W.‘s psychological assessment indicated that, as a result of his autism and pervasive developmental disorder, he exhibited “disruptive and aggressive behavior at times” including “attempt[ing] to leave his classroom without permission, pretend[ing] to be a dinosaur by growling and pretending his fingers are claws, and using foul and abusive language . . . . In
In light of these known symptoms, which were characteristic of T.W.‘s disabilities, the assessment warns and reiterates at multiple points that physical contact with T.W. was to be avoided at all costs due to the harm that it would cause him.6 Further, Garrett concedes that she knew from her training and experience and T.W.‘s assessment that physical contact of any kind was an inappropriate method of redirecting T.W.‘s attention and would have the
Second, the majority fails to consider a significant amount of conflicting record evidence about Garrett‘s conduct in the classroom at SSMS that, when viewed in T.W.‘s favor, provides relevant context from which a reasonable jury could find that Garrett‘s use of excessive force was malicious because no force was necessary. In particular, the aides in Garrett‘s classroom testified extensively about the environment Garrett created in her classroom. Although Garrett testified that she would not physically restrain autistic students to stop their behavior because “it‘s something I wouldn‘t do” and because she knew “it would be an improper technique,” the aides in Garrett‘s classroom testified that she would deliberately provoke T.W. (and her other special needs students) “all the time,” to get him (and them) to misbehave so that she could then restrain him, and “show him who is boss.”
Based upon what she observed firsthand, Jennifer Rodriguez, one of the classroom aides, testified that Garrett seemed to enjoy inflicting pain. Lynn Tacher, another teacher of special needs children at the same school, testified that she “could regularly hear [Garrett] yelling at [her] students [and] . . . could regularly hear the autistic children in [her] class crying and screaming while in the [cooldown room].” On a daily basis, Garrett would yell profanities across the
Mort further testified that Garrett told her that she could hit the children because “they were all stupid shits and dumb asses---and they‘d never go home and tell their parents.” When Mort cautioned Garrett that her actions might come back to haunt her because Garrett was the teacher and thus responsible, Garrett replied “none of these little shits ever go home and say anything.” Mort
Tacher testified that when she ignored one of her own student‘s temper tantrum, Garrett told her that “he wouldn‘t do that if he were in my class because he knows that I would hurt him.” Tacher reported this comment to the assistant principal but, apparently, once again no investigation was conducted. She testified that the vice-principal “appeared to be a friend of Garrett‘s and [was] very proteсtive of her” “to the detriment of the autistic children” and accordingly “refused to take any action with respect to the complaints against Garrett.” When Tacher attempted to speak to him about another incident involving Garrett‘s use of force, he refused to discuss any complaints about Garrett, warning that “we are not talking about Kathy.”
Third, the majority fails to consider record evidence that Garrett threatened and intimidated her classroom aides and another teacher, which would support the inference that she was aware of the wrongful nature of her conduct. Mort testified that Garrett made her nervous when she warned her “don‘t push me or I‘ll show you a side of the road that you‘ve never seen before,” and when she talked about
Tacher also testified that Garrett “regularly” pressed her 300-pound-plus body against her students, teacher‘s aides and other teachers as a form of intimidation, explaining that Garrett “would lean over them . . . and press down on - Kathy‘s a big woman. I mean, several hundred pounds - and kind of lean on them . . . I mean, she got mad at me one time and backed me up against the wall and was leaning on me, threatening me.” Tacher explained that when Garrett would press her body against her, she found it “very intimidating . . . [a]nd I‘m an
Based upon this record, a reasonable jury could find that Garrett had a history and practice of using physical force and other forms of intimidation against T.W., his classmates, her aides, and other teachers despite her knowledge that these acts were prohibited, inappropriate, and uniquely harmful to T.W.; a finding which would support an inference that Garrett‘s actions were objectively excessive. A reasonable jury could find as relevant contextual evidence that Garrett had a history of behavior, similar to that alleged by T.W., toward other students, sufficient to support an inference that Garrett‘s actions towards T.W. were not mistakes or accidents.
B. Specific Incidents of Garrett‘s Use of Force Against T.W.
In addition to failing to consider or downplaying all of this contextual evidence, the majority does the same with evidence that creates a genuine issue of material fact pertaining to the specific incidents of Garrett‘s use of physical force against T.W. It concludes that Garrett‘s use of force was necessary and justifiable and even if her actions were “inappropriate” they were not of sufficient duration or degree to rise to the level of a constitutional violation. But the disagreement in this record as to what happened, how it happened, and why it happened is a matter
First, the majority‘s analysis conflates the excessiveness of force and its duration, which are independent inquiries. Whether the force was excessive cannot always be answered by reference to the number of minutes the force was endured. The majority failed to consider testimony from Mort, Rodriguez, and Tacher, all educators specially trained to work with developmentally disabled children, that Garrett used force, which a reasonable jury could find was both unnecessary and excessive. For example, during the first incident, in which Garrett pushed T.W. to the floor, straddled him with her pelvic area on his buttocks and pulled his arms behind his back for five minutes, Rodriguez testified that it was inappropriate for Garrett to straddle him, saying that “[y]ou do not ever pull their arms around from them because it can cause asphyxiation . . . .” Rodriguez also testified that you should never “sit on top of a kid. If you need that much help, then you‘re supposed to call for some help and you do it as a team effort of restraining the child.” A reasonable jury could find that Garrett‘s straddling of a student, who was half her weight, which placed him at risk of asphyxiation for five minutes, was excessive.
Second, the majority discounts record evidence that, on specific occasions, Garrett was motivated to act, not for a legitimate, disciplinary reason, but because
Likewise, it is a jury question whether Garrett‘s response to T.W.‘s “self-injurious” conduct of scratching a bug bite during the third incident was legitimate
During the fourth incident, the majority concedes that “there is no evidence in the record as to what prompted Garrett” to pin T.W.‘s hands behind his back and lead him to the cooldown room. Nonetheless, the majority impermissibly fills this void by speculating that since the restraint occurred while Garrett led T.W. to the cooldown room, it “suggests that the restraint served some pedagogical objective.” Panel Op. 24. This “suggestion” is entirely unsupported by the record; nothing in the record demonstrates that Garrett had any justification for her use of force in this instance nor does she provide one. The majority appears to suggest that any disciplinary act undertaken by a teacher is per se necessary, justifiable, and proportionate. This is not so and cannot be. The fact that T.W.‘s teacher led him to a cooldown room does not mean that it was warranted in the first place or the
As to the fifth incident, the majority acknowledges that tripping T.W. after barricading him in the darkened cooldown room for several minutes “was unrelated to T.W.‘s disruptive behavior and lacked a disciplinary purpose,” but concludes the tripping does not rise to the level of a constitutional violation. Panel Op. 21.10 I am not sure that tripping alone would rise to a constitutional violation. But it is up to a reasonable jury to determine whether Garrett‘s actions as a whole, including tripping this autistic child, shocks the conscience. By failing to consider this incident in the context of all of the other record evidence about Garrett‘s behavior toward T.W. and other students in her classroom, the majority fails to consider that a reasonable jury could find that this easily supports the inference that Garrett‘s actions were motivated by malice or sadism.11
Finally, the majority opinion discounts the severity of the psychological injuries T.W. suffered. The violation of the right to bodily integrity must include violations of a psychological and developmental nature. It is plainly a jury
A reasonable jury could find, based upon the totality of the evidence about Garrett‘s education, training, use of physical force against other special needs students, intimidation of her classroom aides and other teachers, and her knowledge of T.W.‘s particular vulnerability to physical touch, that Garrett‘s actions were unjustified, objectively and subjectively excessive, and motivated by malice or sadism.
II.
The majority opinion seeks to unravel the tapestry of Garrett‘s pattern and
In addition, a distinction must be made between the need for discipline of some kind and the type of discipline used, to wit, physical/corporal punishment. I believe that the majority conflates the two. That there might have existed a need for Garrett to intervene does not necessarily mean that there was a need for Garrett to intervene with significant physical force. When there is no need for force, any
In sum, the right to be free from the use of force is a subset of the liberty interest in bodily integrity that is protected by the
A reasonable jury reviewing the record as a whole and in the light most favorable to T.W. could find that Garrett abused her position of power by using it as an “instrument of oppression,” Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992), and her conduct was “so brutal” and “offensive to human dignity” that it “shocks the conscience.” Rochin v. California, 342 U.S. 165, 172, 174 (1952), partially abrogated on other grounds by Graham v. Connor, 490 U.S. 386 (1989).
Notes
Id. (internal citations omitted).because there was no need for force, one can reasonably infer that [the principal] took these actions not in good faith but for the purpose of causing harm . . . . Whether we describe the ‘right’ as the right to bodily integrity, the right to be free from ‘unjustified intrusions on personal security,’ the right to be free from excessive force, or the right to be free from arbitrary and excessive corporal punishment, it is clear that a principal, who physically assaulted his students in the manner Koch allegedly did, has violated their clearly established constitutional rights.