[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 6, 2000
THOMAS K. KAHN
No. 98-9612 CLERK
D. C. Docket No. 98-01474-1-CV-GET
DURANTE NEAL, a minor by his next friends;
EUGENE NEAL, et al.,
Plaintiffs-Appellants,
versus
FULTON COUNTY BOARD OF EDUCATION,
STEPHEN DOLINGER, Superintendent, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Georgia
(October 6, 2000)
Before EDMONDSON and MARCUS, Circuit Judges, and HANCOCK*, District
Judge.
MARCUS, Circuit Judge:
*
Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
Plaintiff Durante Neal, a high school freshman and member of the varsity
football team, appeals from the district court’s dismissal of his complaint alleging
that Tommy Ector, a high school teacher and football coach, violated his right
under the Due Process Clause to be free from excessive corporal punishment.
Ector allegedly struck Plaintiff with a metal weight lock, blinding him in one eye,
as a form of punishment for Plaintiff’s involvement in a fight with another student.
The vast majority of Circuits have concluded that substantive due process
principles established by the Supreme Court protect a student from corporal
punishment that is intentional, obviously excessive, and creates a foreseeable risk
of serious injury. Because we conclude that, on the facts alleged in this case,
Plaintiff has stated a claim, we vacate the dismissal and remand for further
proceedings.
I.
According to the complaint, Plaintiff was a 14-year-old freshman at Tri-
Cities High School and was a member of the varsity football team. During football
practice, Royonte Griffin, another player, slapped Plaintiff in the face. Plaintiff
reported this incident to Coach Ector, who told Plaintiff “you need to learn how to
handle your own business.” Plaintiff then picked up a weight lock and put it in his
gym bag. After practice was over, Griffin again approached Plaintiff. Plaintiff
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pulled the weight lock out of his bag, hit Griffin in the head with it, and then
placed it back in his bag. The two students then began to fight.
While the two were fighting, Coach Ector and Principal Herschel Robinson
were in the immediate area. Neither of them stopped the fight. Ector came over
and began dumping the contents of Plaintiff’s bag on the ground, shouting
repeatedly “what did you hit him with; if you hit him with it, I am going to hit you
with it.” Ector then, in the presence of Robinson, took the weight lock and struck
Plaintiff in the left eye. As a result of the blow, Plaintiff’s eye “was knocked
completely out of its socket,” leaving it “destroyed and dismembered.” According
to Plaintiff, even after this blow, as Plaintiff’s eye “was hanging out of his head,
and as he was in severe pain,” neither Coach Ector nor Principal Robinson stopped
the fight.
Based on these alleged facts, Plaintiff sued Ector, Robinson, Superintendent
Stephen Dolinger, and the Fulton County School Board under
42 U.S.C. § 1983.
Plaintiff claimed that Ector’s use of corporal punishment was so excessive as to
shock the conscience and violate his Fourteenth Amendment substantive due
process rights. Plaintiff also claimed that the School Board, Superintendent, and
Principal were liable for failing to train, instruct properly, and supervise Ector, and
that this failure established a custom within the school district which resulted in the
3
violation of Plaintiff’s rights.
Defendants moved to dismiss for failure to state a claim and lack of subject
matter jurisdiction. The district court granted Defendants’ motion for two reasons.
The court first said that under Eleventh Circuit precedent, Ingraham v. Wright,
525 F.2d 909 (5th Cir. 1976) (en banc), aff’d on other grounds,
430 U.S. 651,
97 S.
Ct. 1401,
51 L. Ed. 2d 711 (1977), corporal punishment does not give rise to a
substantive due process claim. Moreover, said the district court, Ector’s “reactive
and spontaneous” conduct during a fight between students, while perhaps an
assault under state law, was not corporal punishment.
II.
We review de novo the district court’s order granting the Defendants’
motion to dismiss. See Harper v. Blockbuster Entertainment Corp.,
139 F.3d 1385,
1387 (11th Cir. 1998). We accept as true the factual allegations in Plaintiff’s
complaint, and construe the facts in the light most favorable to the Plaintiff. See
Parr v. Woodmen of World Life Ins. Co.,
791 F.2d 888, 889 (11th Cir. 1986). A
motion to dismiss may be granted only when the defendant demonstrates “‘beyond
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Harper,
139 F.3d at 1387 (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)).
4
A.
We turn first to the question of whether Ector’s conduct constitutes corporal
punishment. The answer to this question dictates the kind of analysis we must
adopt for Plaintiff’s claim.
We have not precisely defined “corporal punishment.” Black’s Law
Dictionary 235-36 (6th ed. 1991) defines it simply as “[p]hysical punishment as
distinguished from pecuniary punishment or a fine; any kind of punishment
inflicted on the body.” The touchstone of corporal punishment in schools appears
to be the application of physical force by a teacher to punish a student for some
kind of school-related misconduct. See Ingraham,
430 U.S. at 661,
97 S. Ct. at
1407.
Many corporal punishment cases involve what might be called traditional
applications of physical force, such as where school officials, subject to an official
policy or in a more formal disciplinary setting, mete out spankings or paddlings to
a disruptive student. See Saylor v. Board of Educ.,
118 F.3d 507, 511 (6th Cir.
1997); Fee v. Herndon,
900 F.2d 804, 806 (5th Cir. 1990); Wise v. Pea Ridge Sch.
Dist.,
855 F.2d 560, 562 (8th Cir. 1988); Garcia v. Miera,
817 F.2d 650, 653 (10th
Cir. 1987); Hall v. Tawney,
621 F.2d 607, 609 (4th Cir. 1980). Not all corporal
punishment cases arise under those circumstances, however, and may involve less
5
traditional, more informally-administered, and more severe punishments. See
London v. Directors of the DeWitt Pub. Schs.,
194 F.3d 873, 875 (8th Cir. 1999)
(school official’s acts of dragging student across room and banging student’s head
against metal pole described as corporal punishment); P.B. v. Koch,
96 F.3d 1298,
1300 (9th Cir. 1996) (school principal’s conduct in hitting student in mouth,
grabbing and squeezing student’s neck, punching student in chest, and throwing
student headfirst into lockers was corporal punishment actionable as a
constitutional violation); Metzger v. Osbeck,
841 F.2d 518, 519-20 (3d Cir. 1988)
(school official’s conduct consisting of grabbing student in chokehold and causing
student to lose consciousness and fall to the pavement resulting in student breaking
his nose and fracturing teeth analyzed under corporal punishment framework);
Carestio v. School Bd. of Broward County,
79 F. Supp. 2d 1347, 1348 (S.D. Fla.
1999) (school employees’ conduct in ganging up on student and beating him
described as corporal punishment); Gaither v. Barron,
924 F. Supp. 134, 135-36
(M.D. Ala. 1996) (teacher’s head-butting of student described as corporal
punishment).
With those decisions in mind, we think that, in the circumstances of this
case, Ector’s conduct -- as alleged by Plaintiff -- does amount to corporal
punishment. Ector was spurred to act by Plaintiff’s misconduct on school
6
premises. Ector’s intent to discipline Plaintiff for that act is evidenced by his
statement to Plaintiff that “If you hit him with it, I’ll hit you with it.” And Ector
ultimately did use physical force against Plaintiff. This case is not one where a
teacher used reasonable force to restore order in the face of a school disturbance
and merely shoved or grabbed fighting students to separate them. On the contrary,
Ector never attempted to break up the fight between Plaintiff and Reyonte Griffin.
Reading the complaint in the light most favorable to the Plaintiff, the force
allegedly used by Ector was related to Plaintiff’s misconduct at school and was for
the purpose of discipline. As such, it constitutes corporal punishment.
B.
Having determined that Ector’s conduct was corporal punishment, we turn
next to the question of whether Ingraham v. Wright -- the leading corporal
punishment case in this Circuit -- dictates the outcome of this appeal. Defendants
argue, and the district court agreed, that under the former Fifth Circuit’s decision in
Ingraham, corporal punishment, regardless of its severity, may never give rise to a
substantive due process claim. Although the former Fifth Circuit’s opinion is
binding precedent, we do not agree with the district court’s interpretation of that
case. The former Fifth Circuit’s opinion does not foreclose a substantive due
process claim in the circumstances alleged here.
7
In Ingraham, two students had been paddled and spanked by school
administrators pursuant to a school policy authorizing corporal punishment. The
students brought suit claiming, among other things, that the school’s application of
corporal punishment violated their substantive due process rights under the
Fourteenth Amendment. The former Fifth Circuit rejected that claim, explaining
that “the plaintiffs’ right to substantive due process is a guaranty against arbitrary
legislation, demanding that the law not be unreasonable and that the means selected
shall have a real and substantial relation to the object sought to be attained.”
525
F.2d at 916.
In support of its ruling, the former Fifth Circuit said that corporal
punishment was not, either in concept or as authorized by the school board,
“arbitrary, capricious, or wholly unrelated to the legitimate state purpose of
determining its educational policy,” and that “corporal punishment, as one of the
means used to achieve an atmosphere which facilitates the effective transmittal of
knowledge, has [a] ‘real and substantial relation to the object sought to be
attained.”
Id. at 916-17. The court also emphasized that the school district’s
corporal punishment policy “established standards which tend[ed] to eliminate
arbitrary or capricious elements in any decision to punish.” Id.1 Furthermore,
1
The pertinent Dade County School Board Policy said that corporal punishment was only
authorized after conferral with the principal and that the principal would determine the necessity
8
given its decision that corporal punishment (either in theory or as administered
under the school district’s policy) was neither arbitrary nor unrelated to legitimate
educational goals, the court said that it would not look “at each individual instance
of punishment to determine if it has been administered arbitrarily or capriciously.
We think it a misuse of our judicial power to determine, for example, whether a
teacher has acted arbitrarily in paddling a particular child for certain behavior or
whether in a particular instance of misconduct five licks would have been a more
appropriate punishment than ten licks.”
Id.
The former Fifth Circuit in Ingraham did not say that under no set of
circumstances could corporal punishment rise to the level of a constitutional
violation. Moreover, the facts of Ingraham are too different from the facts of this
case for Ingraham to control. In Ingraham, the court decided the issue before it
then, concluding that when corporal punishment is administered pursuant to a
school policy which contains sufficient constraints and restrictions to prevent
arbitrary behavior by school officials, the court would not look at each individual
instance of corporal punishment to determine if a teacher had acted arbitrarily.
for corporal punishment and would designate the time, place and person to administer the
punishment. The punishment was to be administered in the presence of another adult and under
conditions not calculated to subject the student to ridicule and shame. Notably, the policy also
said that no instrument should be used which would cause physical injury to the student and no
part of the body above the waist or below the knees should be struck. See
id. at 916 n.6
9
This case is significantly different. In this case, no one argues that the blow
struck by Ector was pursuant to a school corporal punishment policy. Ector did not
confer with the school administrators before punishing Plaintiff, and Ector was not
expressly authorized by school officials to administer the corporal punishment he
allegedly inflicted upon Plaintiff. Instead, Ector (a teacher) summarily and
arbitrarily punished Plaintiff (a student) by striking Plaintiff in the eye with a metal
weight. The material facts of this case are profoundly different from those found
in Ingraham and present a substantially different question; thus, the former Fifth
Circuit’s opinion in Ingraham does not control this appeal.
C.
Having found that the former Fifth Circuit’s decision in Ingraham does not
itself preclude this claim, we still must determine whether Plaintiff has actually
stated a cause of action. Both this Court and the Supreme Court have “been
reluctant to expand the concept of substantive due process because guideposts for
responsible decisionmaking in this uncharted area are scarce and open-ended.”
Collins v. City of Harker Heights,
503 U.S. 115, 125,
112 S. Ct. 1061, 1068,
117
L. Ed. 2d 261 (1992); see also McKinney v. Pate,
20 F.3d 1550, 1556 (11th Cir.
1994). We have both 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
10
federal causes of action. See County of Sacramento v. Lewis,
523 U.S. 823, 848,
118 S. Ct. 1708, 1718,
140 L. Ed. 2d 1043 (1998); McKinney, 20 F.3d at 1556.
Nevertheless, we think for a number of reasons that a student-plaintiff alleging
excessive corporal punishment can in certain circumstances assert a cause of action
for a violation of his rights under the Fourteenth Amendment’s Due Process
Clause.
The substantive component of the Due Process Clause “protects individual
liberty against ‘certain government actions regardless of the fairness of the
procedures used to implement them.’” Collins,
503 U.S. at 125,
112 S. Ct. at 1068
(quoting Daniels v. Williams,
474 U.S. 327, 331,
106 S. Ct. 662, 665,
88 L. Ed. 2d
662, 668 (1986)). “[T]he substantive component of the due process clause is
violated by [state conduct] when it ‘can properly be characterized as arbitrary, or
conscience shocking, in a constitutional sense.’” County of Sacramento,
523 U.S.
at 847,
118 S. Ct. at 1717 (citation omitted). The concept of conscience-shocking
duplicates no traditional category of common law fault, but “points clearly away
from liability, or clearly toward it, only at the ends of the tort law’s spectrum of
culpability.”
Id. That is to say, “conduct 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.
11
Although the Supreme Court in Ingraham declined to review the petitioner’s
argument that excessive corporal punishment violated substantive due process, the
Court strongly suggested a favorable view of that position. The Court explained
that “corporal punishment in public schools implicates a constitutionally protected
liberty interest.”
430 U.S. at 672,
97 S. Ct. at 1413. It also explained that “where
school authorities, acting under color of state law, deliberately decide to punish a
child for misconduct by restraining the child and inflicting appreciable physical
pain, we hold that Fourteenth Amendment liberty interests are implicated.”
Id. at
674,
97 S. Ct. at 1414. Most notably, in the course of deciding that state law
remedies were adequate to protect against deprivations without procedural due
process, the Court observed “there can be no deprivation of substantive rights as
long as disciplinary corporal punishment is within the limits of the common-law
privilege [to use reasonable force in disciplining children].”
Id. at 676,
97 S. Ct. at
1415 (emphasis added).
Based upon this language, almost all of the Courts of Appeals to address the
issue squarely have said that a plaintiff alleging excessive corporal punishment
may in certain circumstances state a claim under the substantive Due Process
Clause. See, e.g., London,
194 F.3d at 876-77 (citing Wise,
855 F.2d at 564-65)
(Eighth Circuit); Saylor,
118 F.3d at 514 (Sixth Circuit); Metzger,
841 F.2d at 520
12
(Third Circuit); Garcia,
817 F.2d at 653 (Tenth Circuit); Hall,
621 F.2d at 611-614
(Fourth Circuit); but see Fee,
900 F.2d at 808 (Fifth Circuit). As the Fourth Circuit
reasoned in Hall, where an exercise of corporal punishment is “so brutal,
demeaning and harmful as literally to shock the conscience of the court,”
621 F.2d
at 613, a student’s substantive due process rights are implicated just as they would
be in other settings.2 We agree, and join the vast majority of Circuits in confirming
that excessive corporal punishment, at least where not administered in conformity
with a valid school policy authorizing corporal punishment as in Ingraham, may be
actionable under the Due Process Clause when it is tantamount to arbitrary,
egregious, and conscience-shocking behavior.
The cases identify several factors to be considered in determining whether a
student-plaintiff’s allegations of excessive corporal punishment rise to the level of
arbitrary and conscience-shocking behavior. Consistent with the cases, we hold
2
Even the Fifth Circuit has agreed 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.” Fee,
900 F.2d at 808
(internal quotation omitted). Nevertheless, that court has refused to recognize a cause of action
where adequate state law remedies exist.
Id. (“Our precedents dictate that injuries sustained
incidentally to corporal punishment . . . do not implicate the due process clause if the forum state
affords adequate post-punishment civil or criminal remedies for the student to vindicate legal
transgressions.”). No other court has adopted this exception, which has been expressly rejected
by other Circuits. See, e.g., P.B.,
96 F.3d at 1302 n.3. The Fifth Circuit’s approach is also at
odds with our own precedent. See, e.g., McKinney, 20 F.3d at 1556-57 (unlike a procedural due
process claim, “[a] violation of a substantive due process right . . . is complete when it occurs;
hence, the availability vel non of an adequate post-deprivation state remedy is irrelevant”).
13
that, at a minimum, the plaintiff must allege facts demonstrating that (1) a school
official intentionally used an amount of force that was obviously excessive under
the circumstances, and (2) the force used presented a reasonably foreseeable risk of
serious bodily injury.3 See London,
194 F.3d at 876-77; Saylor,
118 F.3d at 514;
P.B.,
96 F.3d at 1304; Metzger,
841 F.2d 518; Garcia,
817 F.2d at 655; Hall,
621
F.2d at 613.
In determining whether the amount of force used is obviously excessive, we
consider the totality of the circumstances. In particular, we examine: (1) the need
for the application of corporal punishment, (2) the relationship between the need
and amount of punishment administered, and (3) the extent of the injury inflicted.
See, e.g., Metzger,
841 F.2d at 520 (“In determining whether the constitutional line
has been crossed, a court must look to such factors as the need for the application
of force, the relationship between the need and the amount of force that was used,
the extent of injury inflicted, and whether force was applied in a good faith effort
to maintain or restore discipline or maliciously and sadistically for the very
3
Excessive corporal punishment claims have an objective and a subjective component, both
of which must be met before a school official may be subject to liability. See Wise,
855 F.2d at
563 n.4 (stating that so long as the punishment was not excessive as a matter of law and was a
reasonable response to the student’s misconduct the intent of the one who administers the
punishment is irrelevant). The punishment must objectively be obviously excessive and the
teacher must subjectively intend to use that obviously excessive amount of force in
circumstances where it was foreseeable that serious bodily injury could result.
14
purpose of causing harm.”).
We need not decide today how “serious” an injury must be to support a
claim. The injury alleged by Plaintiff here -- the utter destruction of an eye --
clearly was serious. Moreover, courts elsewhere treat the extent and nature of the
injury as simply one factor (although an important one) to be considered in the
totality of the circumstances. See, e.g., London,
194 F.3d at 876 (identifying “the
extent of the injury inflicted” as a factor). We recognize that any time a student is
slapped or paddled, whether pursuant to or apart from a school policy, the student
may suffer some pain or injury. But the kind of minor injury suffered by a student
during the administration of traditional corporal punishment will rarely, if ever, be
the kind of injury that would support a federal due process claim for excessive
corporal punishment under the test we adopt today.
As Judge Friendly reasoned in Johnson v. Glick,
481 F.2d 1028 (2d Cir.
1973), addressing a prison guard’s use of force to discipline an inmate:
Not every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers, violates a [person’s] constitutional
rights. In determining whether the constitutional line has been
crossed, a court must look to such factors as the need for the
application of force, the relationship between the need and the amount
of force that was used, the extent of injury inflicted, and whether force
was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.
Id. at 1033. The test we adopt today will, we think, properly ensure that students
15
will be able to state a claim only where the alleged corporal punishment truly
reflects the kind of egregious official abuse of force that would violate substantive
due process protections in other, non-school contexts. We do not open the door to
a flood of complaints by students objecting to traditional and reasonable corporal
punishment.
On the facts of this case, and consistent with the logic of almost all courts
considering the subject, we conclude that Plaintiff has stated a claim. Even
assuming that it would not have been improper per se for Ector to have
administered some amount of corporal punishment to Plaintiff due to Plaintiff’s
misconduct, Ector allegedly went much further, intentionally using an obviously
excessive amount of force that presented a reasonably foreseeable risk of serious
bodily injury. Ector hit Plaintiff in the eye with a metal weight, causing severe
injury (indeed, Plaintiff permanently lost the use of his eye). Ector did not strike
Plaintiff while trying to break up the fight, nor did he simply punish him by
slapping him or administering some other amount of force that arguably might be
reasonable. Instead, Ector came upon the scene of the fight, searched Plaintiff’s
bag while repeatedly shouting, “If you hit him with it, I’m going to hit you with it,”
found the weapon that Plaintiff had used, and then intentionally struck Plaintiff in
the head with it and knocked out Plaintiff’s eye.
16
Because Plaintiff has adequately alleged a violation of his right under the
Fourteenth Amendment to be free from excessive corporal punishment, we vacate
the district court’s judgment dismissing the case, and remand for further
proceedings consistent with this opinion.4
VACATED AND REMANDED.
4
Because the district court did not address whether Plaintiff’s allegations state a valid claim
against all Defendants, we do not reach that question.
17
EDMONDSON, Circuit Judge, dissents.
18
