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Qualified Immunity

T.O. v. Fort Bend Independent School District

Fifth Circuit Declines to Extend Fourth Amendment to Bar Corporal Punishment in Public Schools

“The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class . . . .”1×1. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). Instead, “schools must teach by example.”2×2. Id.   One reason, then, that students do not “shed their constitutional rights . . . at the schoolhouse gate”3×3. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). is so that they may learn what those rights are.4×4. See Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 12 (2018). In the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits, one of those rights is to be free from excessive corporal punishment.5×5. See Lewis M. Wasserman, Corporal Punishment in K–12 Public School Settings: Reconsideration of Its Constitutional Dimensions Thirty Years After Ingraham v. Wright, 26 Touro L. Rev. 1029, 1043–57 (2011). But in the Fifth Circuit — which has jurisdiction over the three states that account for more than one-third of all incidents of corporal punishment nationwide6×6. See Elizabeth T. Gershoff & Sarah A. Font, Corporal Punishment in U.S. Public Schools: Prevalence, Disparities in Use, and Status in State and Federal Policy, Soc. Pol’y Rep., Autumn 2016, at 1, 8 tbl.3 (providing statistics for Louisiana, Mississippi, and Texas). In 2011 and 2012, more than 66,000 public school students in these states were subjected to corporal punishment. See id. — students have few federal constitutional protections against in-school physical abuse.7×7. See Fee v. Herndon, 900 F.2d 804, 808 (5th Cir. 1990). Recently, in T.O. v. Fort Bend Independent School District,8×8. 2 F.4th 407 (5th Cir. 2021). the Fifth Circuit refused to change course, granting qualified immunity to a public school teacher who held a first-grade student with special needs in a chokehold.9×9. See id. at 416. While the panel relied on Fifth Circuit precedent to hold that the teacher’s conduct did not constitute a Fourteenth Amendment violation, the court declined to answer whether it constituted a Fourth Amendment violation.10×10. See id. at 415. This decision was a missed opportunity to define the contours of students’ constitutional rights and protect those who face corporal punishment.

In early 2017, T.O., a first grader in a special education program at Hunters Glen Elementary School, was restrained in a chokehold by Angela Abbott, a fourth-grade math teacher.11×11. Amended Complaint ¶¶ 2, 15, T.O. v. Fort Bend Indep. Sch. Dist., No. 19-CV-331 (S.D. Tex. Mar. 24, 2020). T.O. was placed in the special education program after being diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. See id. After exhibiting behavior “characteristic of his diagnoses,” T.O. had been sent into the hall with his behavioral aide “until he could calm down and return to his classroom.”12×12. Id. ¶ 19. In light of T.O.’s neurodivergencies, the school district had adopted a Behavioral Intervention Plan and assigned him a behavioral aide to ensure he could “resume educational activities with minimal interruption” if he misbehaved. Id. ¶ 16. When Abbott, who “happened to be walking down the hall,”13×13. T.O., 2 F.4th at 412. offered her assistance, T.O.’s aide reassured her that “the situation was okay.”14×14. Amended Complaint, supra note 11, ¶ 21. Abbott, however, opted to “take charge and handle the situation.”15×15. Id. ¶ 20 (internal quotation marks omitted). She decided to “st[and] in front of the door” and “physically block[] T.O.” from reentering the classroom.16×16. Id. ¶ 21. In response, T.O. tried to push Abbott out of the way, “hitting her right leg” in the process.17×17. Id. Abbott then threw T.O. to the floor and grabbed him by the throat.18×18. Id. ¶ 22. She choked him for several minutes, even as he “foam[ed] at the mouth,” only releasing him when the behavioral aide asked her to.19×19. Id. ¶ 24. T.O. visited the school’s nurse, who observed “bruising and redness” on his neck.20×20. Id. ¶ 37; see id. ¶ 25. The school district investigated the incident, but Abbott was never fired or disciplined.21×21. Id. ¶¶ 38–39.

Two years later, T.O. and his parents filed suit against both Abbott and the school district, alleging that Abbott violated T.O.’s Fourth, Fifth, and Fourteenth Amendment rights.22×22. See id. ¶ 6, 40–41. In addition, T.O. and his parents alleged that the school district discriminated against him in violation of federal disability law. Id. ¶ 1 (citing Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended in scattered sections of 42 and 47 U.S.C.); Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended in scattered sections of 29 U.S.C.)). Abbott and the school district moved to dismiss all claims.23×23. T.O. v. Fort Bend Indep. Sch. Dist., No. H-19-0331, 2020 WL 1442470, at *1 (S.D. Tex. Jan. 29, 2020). Magistrate Judge Stacy recommended that their motion be granted.24×24. Id. She concluded that Abbott was entitled to qualified immunity because her use of force was not a Fourteenth Amendment substantive due process violation as Texas provides “adequate post-punishment civil or criminal remedies for the student to vindicate legal transgressions.”25×25. Id. at *5. Magistrate Judge Stacy recommended dismissal of the statutory claims on the basis that the amended complaint “failed to allege sufficient facts” to support that T.O. was disciplined because of his disability. Id. at *6. The district court adopted Magistrate Judge Stacy’s recommendations in full.26×26. T.O. v. Fort Bend Indep. Sch. Dist., No. 19-CV-331, 2020 WL 1445701, at *1 (S.D. Tex. Mar. 24, 2020). In a footnote, the district court denied T.O. and his parents leave to amend their complaint a second time, finding that it “would not cure the deficiencies” identified by Magistrate Judge Stacy. Id. at *1 n.1.

The Fifth Circuit affirmed.27×27. T.O., 2 F.4th at 412. Writing for the panel, Judge Wiener28×28. Judge Wiener was joined by Judge Costa and Judge Willett. held that Abbott was entitled to qualified immunity.29×29. See T.O., 2 F.4th at 416. He first considered the substantive due process claim. In Fee v. Herndon,30×30. 900 F.2d 804 (5th Cir. 1990). the Fifth Circuit’s leading case on the issue, the court ruled that “corporal punishment in public schools ‘is a deprivation of substantive due process when it is arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning.’”31×31. Id. at 808 (quoting Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d 1243, 1246 (5th Cir. 1984)). However, when a state provides alternative post-punishment remedies, this satisfies the student’s constitutional process rights, meaning there can be no claim that the state was acting arbitrarily.32×32. Id. Judge Wiener concluded that the Texas remedies were adequate and thus that there was no arbitrary state action depriving T.O. of substantive due process.33×33. T.O., 2 F.4th at 415. Judge Wiener noted subsequent Supreme Court precedent that may call Fee into question. Id. at 416. However, he distinguished those cases and observed that even if they did apply in this context and overruled Fee, T.O.’s Fourteenth Amendment substantive due process claim would still fail due to qualified immunity, as the illegality of Abbott’s behavior would have needed to be “clearly established” at the time of the incident. Id. Next, he held that because Abbott’s discipline occurred in a pedagogical setting, it could not be considered “wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning,”34×34. Id. at 414 (citing Woodard, 732 F.2d at 1246). which could warrant a “deviation from Fee.”35×35. Id. at 415.

Judge Wiener also dismissed T.O.’s Fourth Amendment claim of unreasonable seizure.36×36. Id. To do so, he relied on the “clearly established” prong of qualified immunity,37×37. Id. which asks whether the conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”38×38. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As the court “ha[d] not conclusively determined whether the momentary use of force by a teacher against a student constitutes a Fourth Amendment seizure,” there was no clearly established right at the relevant time — that is, when Abbott placed T.O. in a chokehold.39×39. T.O., 2 F.4th at 415. As evidence of the inconsistency in relevant case law, Judge Wiener compared an unpublished Fifth Circuit opinion that rejected Fourth Amendment claims against a teacher40×40. Id. (citing Flores v. Sch. Bd. of DeSoto Par., 116 F. App’x 504, 510 (5th Cir. 2004)). with other Fifth Circuit opinions that held that “claims of excessive force and unlawful arrest against other school officials ‘are properly analyzed under the Fourth Amendment.’”41×41. Id. (emphasis added) (quoting Keim v. City of El Paso, 162 F.3d 1159, 1998 WL 792699, at *1, *4 n.4 (5th Cir. Nov. 2, 1998) (per curiam)); see also id. at 415 n.30 (citing Curran v. Aleshire, 800 F.3d 656, 661 (5th Cir. 2015)). Ultimately, Judge Wiener did not reach the question whether Abbott’s actions violated the Fourth Amendment.42×42. See id. at 415 n.30. In addition, the Fifth Circuit rejected T.O.’s federal statutory claims as fatally lacking sufficient “factual allegations,” id. at 417, and his attempt to file a second amended complaint as without “good cause,” id. at 418. The Fifth Circuit later rejected a petition to rehear the case en banc. See Order at 1, T.O. v. Fort Bend Indep. Sch. Dist., No. 20-20225 (5th Cir. Sept. 15, 2021).

Notably, Judge Wiener also specially concurred,43×43. Judge Wiener was joined by Judge Costa. writing that he was constrained in his panel decision on the Fourteenth Amendment substantive due process claim by binding circuit precedent that “is not only unjust, but is completely out of step with every other circuit court and clear directives from the Supreme Court.”44×44. T.O., 2 F.4th at 419 (Wiener, J., specially concurring). Specifically, he questioned Fee’s interpretation of Ingraham v. Wright45×45. 430 U.S. 651 (1977). a case in which the Supreme Court held that the use of corporal punishment in schools does not violate procedural due process rights when state laws provide adequate post-deprivation remedies.46×46. Id. at 683. He pointed out that, unlike every other circuit, the Fifth Circuit has “appl[ied] Ingraham’s procedural due process reasoning to substantive due process claims.”47×47. T.O., 2 F.4th at 419 (Wiener, J., specially concurring). Judge Wiener also noted subsequent Supreme Court precedents that call into question Fee’s understanding of Ingraham,48×48. Id. at 420 (citing Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468 U.S. 517 (1984); Zinermon v. Burch, 494 U.S. 113 (1990)). writing that “the Supreme Court has made it clear that the availability of state remedies does not replace a cause of action under § 1983.”49×49. Id. He urged the Fifth Circuit to reconsider the rule from Fee that “injuries resulting from corporal punishment do not violate the Fourteenth Amendment as long as the forum state provides adequate alternative remedies.”50×50. Id. at 419.

While precedent prevented the Fifth Circuit from upholding T.O.’s substantive due process claim, the panel need not have stopped there. If it had decided on the merits whether Abbott violated T.O.’s Fourth Amendment right against unreasonable seizure, it could have established important precedent and helped to define the contours of public school children’s constitutional rights. Since Ingraham, the Fifth Circuit has been the lone outlier in essentially refusing to recognize any remedy for excessive corporal punishment.51×51. Id. But the Fifth Circuit had discretion to reach T.O.’s well-grounded claim. In conducting qualified immunity analyses, courts may choose to address whether a constitutional violation occurred, even if the right is not clearly established.52×52. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). Doing so here would have been particularly beneficial given the Fifth Circuit’s geographic reach.

Public school students across circuits have argued that corporal punishment violates their Fourth, Eighth, and Fourteenth Amendment rights.53×53. See, e.g., Ingraham v. Wright, 430 U.S. 651, 653 (1977) (Eighth and Fourteenth Amendment claims); Doe ex rel. Doe v. State of Haw. Dep’t of Educ., 334 F.3d 906, 908 (9th Cir. 2003) (Fourth and Fourteenth Amendment claims). While the Supreme Court in Ingraham foreclosed students’ ability to bring Eighth Amendment claims54×54. See Ingraham, 430 U.S. at 671. and Fourteenth Amendment procedural due process claims,55×55. See id. at 682. the Court left unanswered whether Fourteenth Amendment substantive due process claims and Fourth Amendment claims are cognizable.56×56. Id. at 679 n.47, 673 n.42. This silence on the avail-ability of these two constitutional avenues has left lower courts split on the application of the Fourteenth and Fourth Amendments to corporal punishment in public schools.57×57. Wasserman, supra note 5, at 1098–99. The majority of circuits hold that excessive corporal punishment can violate one’s substantive due process rights, regardless of the availability of adequate state law remedies.58×58. The Second, Third, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits do not look to the availability of adequate state law remedies. See id. at 1043–57. Circuits using this reasoning largely follow the Fourth Circuit’s analysis in Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980), which required students to show that the corporal punishment “shock[ed] the conscience” to prevail on a substantive due process claim. Id. at 613; see also Wasserman, supra note 5, at 1043–57. Alternatively, the Seventh and Ninth Circuits use a Fourth Amendment analysis, contending that corporal punishment may amount to a seizure.59×59. Wasserman, supra note 5, at 1060–66. As such, the Fifth Circuit finds itself in complete isolation with its “State Remedy Rule”60×60. Gregory T. Gledhill, Up a Creek . . . But Not Without a Paddle: Public School Corporal Punishment in the Fifth Circuit, 13 Geo. Mason U. C.R. L.J. 121, 143–44 (2003). that forecloses all substantive due process claims when the state affords adequate civil or criminal remedies. A Fourth Amendment analysis, then, would remove the Fifth Circuit from its isolation among the circuits that Judge Wiener lamented61×61. Judge Wiener expressed this sentiment in both T.O., 2 F.4th at 421 (Wiener, J., specially concurring); and Moore v. Willis Independent School District, 233 F.3d 871, 880 (5th Cir. 2000) (Wiener, J., specially concurring). and align the Fifth Circuit with the Seventh and Ninth Circuits.

The panel was free to answer the Fourth Amendment question here. Although the Supreme Court permits lower courts presented with a qualified immunity defense to skip the constitutional question and proceed straight to the “clearly established” inquiry, it emphasized in Pearson v. Callahan62×62. 555 U.S. 223 (2009). that answering the merits question is “often beneficial.”63×63. Id. at 236. The Court has left no clear rules for when lower courts should do so, but it has provided some guidance for when doing so may not be necessary — namely, when the inquiry would be so fact specific that it would not be helpful for future cases, when the issue will soon be decided by a higher court or by the court of appeals en banc, when the decision involves interpretation of state law, or when the factual basis for the plaintiff’s claim is not fully developed.64×64. Id. at 237–40. There is little consistency in how lower courts choose to use their discretion, but when courts post-Pearson have decided to skip the constitutional question, they often cite the Pearson considerations as their rationale.65×65. See Ted Sampsell-Jones & Jenna Yauch, Measuring Pearson in the Circuits, 80 Fordham L. Rev. 623, 631–32 (2011). However, critics have noted that skipping the question risks constitutional stagnation, as forgoing the question because the right is not clearly established ensures that right will “never be clearly established.”66×66. See, e.g., Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 4 (2015).

Answering the constitutional question in this instance would have been “beneficial” for many of the same reasons that other courts have given when exercising their discretion. Lower courts have done so in order to provide guidance in cases addressing constitutional questions that are often resolved by qualified immunity,67×67. al-Kidd v. Ashcroft, 580 F.3d 949, 964 (9th Cir. 2009), rev’d, 563 U.S. 731 (2011). in cases of “first impression,”68×68. Sampsell-Jones & Yauch, supra note 65, at 631. in cases where the constitutional violation was clear,69×69. Karen M. Blum, Qualified Immunity: Further Developments in the Post-Pearson Era, 27 Touro L. Rev. 243, 245 (2011). and in cases where it was important to advance the development of the law.70×70. Sampsell-Jones & Yauch, supra note 65, at 631. The Fifth Circuit should have answered the constitutional question posed in T.O.’s case because school officials are considered government officials protected by qualified immunity,71×71. Alan K. Chen, The Facts About Qualified Immunity, 55 Emory L.J. 229, 235 (2006). In addition, “[t]he Court’s recent qualified immunity holdings do not bode well for student plaintiffs in constitutional cases.” Wasserman, supra note 5, at 1087 (citation omitted). Abbott’s actions likely constituted a violation of T.O.’s Fourth Amendment rights, and deciding this question on the merits would have advanced the development of law in an area that is of unique importance. Notably, several courts have chosen to answer the constitutional questions in cases involving students in school, and a number of these cases specifically address Fourth Amendment violations, evidencing the recognized need for constitutional clarity in this context.72×72. See, e.g., Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 368 (2009); Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 175 (4th Cir. 2010); Greene v. Camreta, 588 F.3d 1011, 1015–16 (9th Cir. 2009), vacated in part, 563 U.S. 692 (2011).

The Court’s Fourth Amendment jurisprudence fits T.O.’s injury like a glove. There are two steps to this analysis. First, corporal punishment — at least, under the facts of this case — constitutes a “seizure.” Just last Term, in Torres v. Madrid,73×73. 141 S. Ct. 989 (2021). the Court reiterated that when a government official “use[s] . . . force with intent to restrain,” the Fourth Amendment applies to their conduct.74×74. Id. at 998 (emphasis omitted). Second, public school teachers are not immune from Fourth Amendment claims.75×75. New Jersey v. T.L.O., 469 U.S. 325, 336–37 (1985). In fact, the Court has been especially attentive to the power differentials of the classroom environment, requiring lower courts to consider “the age and sex of the student and the nature of the infraction” in determining the appropriateness of a search.76×76. Id. at 342. In light of the Court’s broad definition of seizure and the constitutional status of public schools, it is at least plausible that Abbott’s chokehold (a “47-year-old, 260 pound” teacher pinning down a “seven-year-old, 55 pound first-grader”77×77. Amended Complaint, supra note 11, ¶ 2. ) violated the Fourth Amendment.78×78. Indeed, the Ninth Circuit seems to subscribe to this view. See Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007).

Answering the constitutional question would clarify the law in an area that demands it. Judge Wiener pointed out in his special concurrence that there is a real lack of clarity regarding students’ substantive due process rights in this area, and he admitted that the circuit’s precedents on this issue were “wrongly decided.”79×79. T.O., 2 F.4th at 421. Ignoring the Fourth Amendment claim only makes more unclear the state of students’ constitutional right to be free from physical abuse in school. The Court has emphasized in other contexts “the heightened . . . stakes involved” in cases regarding students’ constitutional rights, and that such “a constitutional deprivation . . . harms people in their most vulnerable, formative years.”80×80. Driver, supra note 4, at 249. Not reaching the merits of the Fourth Amendment claim delays vindication of students’ constitutional rights.

Answering the question in the Fifth Circuit is especially pressing in light of the fact that states in the Fifth Circuit account for more than one-third of all corporal punishment in the United States.81×81. See Gershoff & Font, supra note 6, at 8 tbl.3. Additionally, the practice has a disparate impact on students with special needs and students of color.82×82. “Students with disabilities represent approximately 9.8% of [Texas’s] school population, but they experienced 91% of restraints in Texas’s public schools during the 2018–2019 school year.” Brief of Disability Rights Texas et al. as Amici Curiae in Support of Appellants’ Petition for Rehearing En Banc at 6, T.O. v. Fort Bend Indep. Sch. Dist., No. 20-20225 (5th Cir. Sept. 15, 2021) (quoting Disability Rts. Tex., Harmful Restraint of Students with Disabilities in Texas Schools 9 (2020)); see also id. at 6–7 (noting disparities for Black students). An amicus brief filed in T.O. cites the case of a student diagnosed with autism in Fort Worth who died after he was restrained in school.83×83. Id. at 5 (citing Silas Allen, Fort Worth Student with Autism Died After Being Restrained at School. What Happened?, Fort Worth Star-Telegram (Aug. 11, 2020, 4:52 PM), https://www.star-telegram.com/news/local/education/article251748788.html [https://perma.cc/H2GA-AJY8]). At the time the brief was filed, the child’s parents had neither obtained any judicial relief nor “been told how their child died, or why he was subjected to the treatment that he was.”84×84. Id. Cases like this, and like T.O.’s, are not rare in the Fifth Circuit,85×85. See Gershoff & Font, supra note 6, at 8 tbl.3. and the disparate impact of this treatment on vulnerable populations highlights the need for judicial remedy, lest school officials continue to violate students’ Fourth Amendment rights without any repercussions.

In T.O. v. Fort Bend Independent School District, the Fifth Circuit equivocated — to the detriment of vulnerable public school students across the South. Although Judge Wiener lamented the court’s faulty Fourteenth Amendment substantive due process precedent,86×86. T.O., 2 F.4th at 421. he missed an opportunity to create favorable Fourth Amendment precedent. Already, the consequences are being felt. Just six days after its decision in T.O., the Fifth Circuit granted qualified immunity to a school resource officer who tased a special education student.87×87. J.W. v. Paley, 860 F. App’x 926, 930 (5th Cir. 2021) (per curiam). The student brought a Fourth Amendment claim, but the court concluded that the right was not clearly established — citing T.O.88×88. Id. (citing T.O., 2 F.4th at 412–15). Constitutional stagnation is not at risk. It is at work. And until the Fifth Circuit offers a fix, it is children like T.O. who will suffer, taught by example that their rights are, indeed, “mere platitudes.”89×89. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).