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Excessive Force

 

DID THE SCHOOL’S “RED RIBBON DAY” VIOLATE THE STUDENT’S CONSTITUTIONAL RIGHTS?

Case citation:  Yara v. Perryton ISD     Fed. Appx.    , 2014 WL 1273808 (5th Cir. 2014) (unpublished).

Summary:  Andrew Yara was a Perryton Independent School District high school student when he participated in the school’s “Red Ribbon Day.”  The program was a two-day supplemental “enrichment activity” designed by his world history teacher to teach sophomore students about persecution experienced by Jews in Nazi Germany.   On the first day, the teacher required half of his students to wear red ribbons, while the other half wore red ribbons on the second day. The teacher instructed students not wearing red ribbons to discriminate against those who were.  Others not enrolled in the class, including Perryton staff, also took part in the activity by giving orders to the red-ribbon wearers. Both students and teachers forced red-ribbon wearers to kneel in or crawl down the hall, carry students’ book bags to class, and use designated restrooms and water fountains.  At some point during the day, a school staff member sprayed the red-ribbon wearers with a water hose.

The third annual Red Ribbon Day was held in May of 2010. On the second day of the activity, the teacher gave his customary instruction that those wearing red ribbons, who included Yara, should follow the other students’ orders.  The teacher also sent an email to the staff instructing them not to allow other students to cause physical harm to the ribbon wearers.  Nevertheless, after lunch, a Perryton staff member, Manuel Moreno, stopped Yara and other ribbon wearers in the hall and told them to get down on their knees facing the wall.  Yara’s cousin, who was also a student at Perryton, asked permission from Moreno to “borrow that Jew – I mean red ribbon.”   The cousin ordered Yara to carry him to his class, an instruction which the Yaras allege was overheard by Moreno.  Yara followed his cousin’s order.  As Yara was carrying his cousin, another student jumped on his cousin’s back, which caused the three students to fall to the ground.  Yara got up, and his cousin again jumped on his back, causing pain to his lower back and legs.  Still required to follow orders, Yara carried his cousin and two other students to their classes.  As the day progressed, Yara continued to experience pain in his legs and back.   He sought medical treatment the next day.

The Yaras filed suit against the district, claiming that Yara continued to suffer from significant pain and depression arising from these events, and he incurred medical bills and therapy fees for treatment related to this pain.  Yara and his parents brought claims under 42 U.S.C. §1983 against the school district, alleging violations of his Fourth Amendment right to be free of unreasonable seizures and excessive force, and his Fourteenth Amendment right to bodily integrity.  The district court granted summary judgment for the defendants and the Yaras appealed to the Fifth Circuit Court of Appeals. [See, Yara v. Perryton ISD, Dkt. No. 2-12-CV117-J (N.D. Tex. 2013); Texas School Administrators’ Legal Digest, May 2013].

Ruling:  The Fifth Circuit upheld the trial court judgment in favor of the district.  The evidence did not indicate that the school district had adopted a custom or policy that was the moving force behind the alleged constitutional violations.  Further, the district court concluded that Section 1983 liability did not attach under a failure to train theory because the evidence did not show that Perryton policymakers were deliberately indifferent to any constitutional violations allegedly arising from lack of staff training or supervision.

A school district is responsible under Section 1983 if a final policymaker adopts a policy that is the moving force behind a constitutional violation.  A policymaker may adopt a policy through written policy statements, ordinances, or regulations, or by acquiescing to a wide-spread practice. Even if a policymaker adopts a policy that causes constitutional violations, it can only be liable for being deliberately indifferent to those violations. Deliberate indifference reflects the policymaker’s conscious choice to disregard constitutional violations caused by its adopted policy. The trial court held that the district’s board of trustees had final policymaking authority for the high school under Texas law and rejected the argument that the board had delegated that authority to the school principal, who had approved the teacher’s lesson plans. It also concluded that the district was not deliberately indifferent to the alleged violations.

There was no evidence that the board, which was the final policymaker under Texas law, had knowledge of Red Ribbon Day. Further, even though the school board allowed its high school principal to approve teacher plans, that was not a delegation of its policymaking authority.   The Fifth Circuit agreed that the two-day per year program, which reached a third anniversary, was not “so common and well-settled as to constitute a custom that fairly represents municipal policy.”  Even if knowledge of Red Ribbon Day could be imputed to the board, the district could not have acted with deliberate indifference to constitutional violations because there was no evidence that the type of constitutional violations alleged by the Yaras had ever occurred.   It was undisputed that no Perryton High School student ever previously suffered physical harm as a result of Red Ribbon Day events. Thus, the board could not have reasonably predicted the events alleged in this lawsuit.The Yaras also raised a failure to train claim which required them to demonstrate that (1) a supervisor failed to supervise or train a subordinate; (2) a causal link exists between the failure and the constitutional violation; and (3) the supervisor was deliberately indifferent.  Negligence or even gross negligence is not enough to establish a claim.  Instead, a plaintiff must demonstrate a pattern of constitutional violations and that the inadequacy of the training was obvious and obviously likely to result in a constitutional violation.

For the district to be liable for the board’s failure to train or supervise the school staff, the school board must have actual or constructive notice of ongoing constitutional violations at the school; otherwise the board’s failure could not be a conscious or deliberate choice. The Yaras’ failure-to-train argument failed due to the lack of evidence that the board was aware of Red Ribbon Day.  Further, the board could not have made a deliberate choice to disregard constitutional violations stemming from its failure to train or supervise because no violation had occurred in the first two years of the program.  There was no pattern of constitutional violations such that the board would have been more than grossly negligent for failing to train or supervise the high school staff. Thus, the trial court did not err in concluding that the district could not be liable under this theory of liability.  The court of appeals upheld the judgment in favor of the district.

Comments:  What you have here is an unfortunate accident. It is difficult to turn an unfortunate accident into a constitutional claim for damages.

 

Corporal Punishment

 

WHAT DUE PROCESS IS REQUIRED FOR CORPORAL PUNISHMENT?

Case citation:   Clayton v. Tate County School District, __Fed. Appx., 2014 WL 1202515 (5th Cir. 2014) (unpublished).

Summary:  Trey Clayton was a high school student in the Tate County School District in Mississippi.  On March 10, 2011, Clayton arrived at his second-period English class and discovered that another student was occupying Clayton’s assigned seat. Because Clayton was not in his assigned seat, his teacher sent him to the library.  The assistant principal noticed Clayton sitting in the library and approached him, stating that his bad behavior was going to stop.  The assistant principal allegedly appeared angry and agitated.

The assistant principal then told Clayton to follow him to his office.  The assistant principal, with another of the school’s assistant principals as a witness, then struck Clayton three times on the buttocks with a paddle.  Clayton filed suit against the district, claiming that the assistant principal used excessive force and that the paddling left visible bruising and welts on Clayton’s buttocks, which were visible for days thereafter.  According to the suit, seconds after being paddled, Clayton fainted and fell, face first, onto the concrete floor in the hallway immediately outside the assistant principal’s office.  When Clayton regained consciousness, he was bleeding, five of his teeth were shattered, and, it was later determined, his jaw had been broken. The lawsuit alleged violations of Clayton’s Eighth Amendment right against cruel and unusual punishment and Fourteenth Amendment right to due process.  The trial court dismissed the suit and Clayton appealed to the Fifth Circuit Court of Appeals.

Ruling: The Fifth Circuit upheld the dismissal of Clayton’s Eighth and Fourteenth Amendment claims.  The appeals court observed that the United States Supreme Court already has rejected an Eighth Amendment challenge to corporal punishment in schools, concluding that the Eighth Amendment is inapplicable in the school context.    Because the Fifth Circuit was bound by that Supreme Court precedent, the Eighth Amendment claim was without merit.

To state a Fourteenth Amendment claim, a plaintiff must first identify a protected life, liberty or property interest and then prove that governmental action resulted in a deprivation of that interest. The Supreme Court has held that corporal punishment in a public school implicates a constitutionally protected liberty interest in the freedom of bodily restraint and punishment.  It is unconstitutional when the deprivation of that interest is done without due process of law.  Further, students are not entitled to due process pre-deprivation.  Instead, the availability of post-deprivation, state law remedies will satisfy due process.  For example, school officials who administer excessive corporal punishment may be held civilly or even criminally liable.  Thus, as long as the state provides an adequate remedy, a public school student cannot state a claim for denial of substantive due process through excessive corporal punishment.  Mississippi state law remedies provided an adequate remedy, barring a student subject to corporal punishment from asserting a substantive due process claim.  The trial court properly dismissed Clayton’s due process claim.

According to the Fifth Circuit, the equal protection claim likewise was without merit.   In his complaint, Clayton alleged that purported disparate impact “stems from an institutionalized bias[ ] that male students misbehave more frequently than female students.”  In support of his argument, Clayton attached to his complaint a newspaper article in which one of the individual defendants refused to comment on this lawsuit but reportedly said, “boys typically got in more trouble than girls.” Even if that school official believed that boys should be subject to corporal punishment more than girls because boys acted out more, that belief did not demonstrate that any other school official or the assistant principal who paddled Clayton held the same belief. There simply was no allegation that Clayton or any other male student was subject to corporal punishment because of a biased belief that troublesome boys should be punished more and therefore that school officials use gender as a criterion for determining who should be paddled.  Clayton failed to state a claim for a violation of the Equal Protection Clause, and the district court correctly dismissed this claim.  The Fifth Circuit affirmed the trial court’s dismissal of the suit.


Comments:  The court noted that other circuit courts have allowed substantive due process challenges to go forward, even when state law provides adequate remedies.   However, the 5th Circuit has not taken that approach, and this court follows 5th Circuit precedent. Thus the availability of a remedy under state law for excessive corporal punishment precludes a constitutional claim based on the same conduct.  Texas law, like Mississippi’s, provides remedies for excessive corporal punishment. Therefore, claims of a denial of substantive due process based on excessive corporal punishment should be dismissed.

 

Searches

 

THE STUDENT HAD A REASONABLE EXPECTATION OF PRIVACY IN HIS CELL PHONE?

Case citation:   State v. Granville, __S.W.3d __, 2014 WL 714730 (Tex. Crim. App. Feb. 26, 2014).

Summary:  Anthony Granville was a high school student when he was arrested for the Class C offense of causing a disturbance on a school bus.  His cell phone was taken from him during the booking process and placed in the jail property room.  Later that day, a Huntsville Police School Resource Officer was told that the day before he was arrested, Granville had used his cell phone to take a photograph of another student urinating in the boys’ bathroom.  The officer, who was not involved in arresting Granville, then drove to the jail and retrieved the cell phone from the jail property room.  He examined its contents without first getting a warrant.  The officer turned on the phone, which had been turned off.  He went through it until he found the photograph he was looking for, then took the phone to his office, and printed a copy of the photograph.   He kept the phone as evidence.

Granville was then charged with the state-jail felony of improper photography.  Granville filed a motion to suppress the evidence found on his cell phone, arguing that the School Resource Officer could not search his cell phone without a warrant. The trial court agreed and held that Granville had a reasonable expectation of privacy in the cell phone, even though it had been placed in the jail property room.   Because the officer did not have a warrant or other exigent circumstances for searching the phone, the search was improper.  An appellate court affirmed the trial court ruling and the Court of Criminal Appeals granted the State’s request for a review of the decision.

Ruling:  The Court of Criminal Appeals affirmed the ruling in favor of the student, holding that the warrantless search of his cell phone taken from a jail property room was improper.  The Fourth Amendment of the United States Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” The Court observed that “[o]ur most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in ‘the cloud’ and accessible by those electronic devices.”  The central concern of the Fourth Amendment has remained the same, which is to protect against “police officers unbridled discretion to rummage at will among a person’s private effects.”

Courts have held that a person has a subjective expectation of privacy in the contents of their cell phone and that expectation is one that society recognizes as reasonable and legitimate. Courts recognize that cell phones can store and access a significant amount of data, some of which may involve the most intimate of details of a person’s life.  Thus, the potential for invasion of privacy, identity theft, and public embarrassment is “enormous.”

While that expectation of privacy in one’s cell phone exists, a person can lose that expectation under certain circumstances, such as when he abandons the phone, lends it to others, or gives consent to a search.   The Fourth Amendment allows officers to conduct warrantless searches “incident to a lawful arrest” to seize weapons or other things that might be used to assault the officer or effect an escape and to prevent the destruction of property.    A warrantless search incident to an arrest is lawful if it is substantially contemporaneous with the arrest and is confined to the area within the immediate control of the arrestee.  The United States Supreme Court has upheld warrantless searches of an arrestee’s pants in a jail property room to examine paint spatters on the pants.  However, it found improper the search of a 200-pound footlocker that had been seized when a person was arrested from a train station, finding that a reasonable expectation of privacy existed.

In this case, while Granville had a diminished expectation of privacy as a jail detainee, a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because the phone was being stored in a jail property room. The search in this case was not “incident to a lawful arrest.” The search of the cell phone did not occur contemporaneously with Granville’s arrest and was not conducted in an area within Granville’s immediate control for the purpose of preventing an assault on an officer, an escape, or the destruction of property. According to appeals court, instead of conducting the warrantless search the officer could have seized the phone and held it while he sought a search warrant.  Even with probable cause that a crime had occurred, the officer could not activate and search the contents of the inventoried cell phone without a warrant.  Thus, the officer’s search was unlawful and the State was prohibited from using the evidence gathered from the phone in its criminal case against Granville.

Comments:  This case just further reinforces the notion that the contents of a cell phone are private.   Rummaging around in a student’s cell phone is a “search” that implicates the 4th Amendment.

 

Harassment

 

DID THE STUDENT STATE SUFFICIENT FACTS TO STATE PEER HARASSMENT CLAIMS?

Case citation:  G.M. v. Aledo ISD, 2014 WL 1084170 (N.D. Tex. 2014) (unpublished).

Summary:  G.M. was a fourth-grade student in the Aledo Independent School District, who claimed to have been the subject of harassment at school by T.F., a fellow student.  The harassment allegedly included taunting, teasing, bullying, and physical assault, all to such a degree that G.M. allegedly suffered physical injury, emotional trauma, anxiety, depression, and social withdrawal.

G.M. and his mother filed suit against the district, claiming that they repeatedly contacted and discussed with teachers and administrators T.F.’s harassment of G.M. and the effect that the harassment was having on G.M.  They claimed that, even though the district was aware of the harassment suffered by G.M. and knew that T.F. was the perpetrator of the harassment, the district took no corrective action, or took insufficient action, or participated themselves in the harassment.  According to the suit, the harassment interfered with G.M.’s educational environment and deprived him of the educational opportunities and benefits provided by the district.  G.M. alleged that the district’s conduct violated his substantive due process rights under the Fourteenth Amendment to the United States Constitution.  The family sued the school district and the principal in his individual capacity.  In response, the school district and principal sought dismissal of the suit.

Ruling:  The trial court dismissed the suit because it failed to allege facts sufficient to support the peer harassment claims against the district and the principal.  The lawsuit did not state any specific facts related to the principal’s personal involvement in alleged constitutional violation.  According to the court, the lawsuit failed to state a claim against the principal.

With respect to claims against the district, a governmental entity can be held liable only if one of its official policies caused a person to be deprived of a federally protected right.  Under Texas law, policymaking authority rests with a school district’s board of trustees.  Here, the lawsuit failed to allege a school district policy or custom that led to any alleged constitutional violation. G.M. and his mother claimed that an unspecified “de facto” policy existed that caused the violation of G.M.’s constitutional rights. Notably absent from the lawsuit was any allegation that the majority of the board of trustees was aware of the conduct of which the parent complained, approved of that conduct, or intended that such conduct represent the policy of the district acting through its board of trustees.  The suit also lacked the factual specificity required for there to be a meaningful allegation of an official policy established by custom or practice.  The allegations relative to the claimed “de facto” policy were purely “conclusory, with no facts alleged that would define such a policy, much less show that it can be attributed to AISD’s governing board of trustees.” Because the suit failed to state sufficient facts to support the plaintiffs’ claims, the trial court dismissed the claims and entered judgment in favor of the district defendants.