What Does It Take to “Shock the Conscience” in the Classroom?
Substantive Due Process and the “Shocks the Conscience” Test
In Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), the Sixth Circuit appears to have made it close to impossible for students to successfully sue their teachers for violating substantive due process in the classroom.
The Domingo Facts and Ruling
In this case, parents of special education students sued their teacher, alleging substantive due process violations for the following, all of which occurred in the classroom: “abus[ing] her students … by, among other things, gagging one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training.”
The Sixth Circuit affirmed the district court’s grant of summary judgment for the teacher on the ground that the teacher’s conduct did not shock the conscience and thus did not violate substantive due process. It applied the four-part test of the Third Circuit in Gottlieb v. Laurel Highlands School Dist., 272 F.3d 168 (3rd Cir. 2001): (1) though the techniques used by the teacher were inappropriate, they were done for a legitimate pedagogical purpose; (2) the force used was not excessive; (3) the teacher did not act with malicious or sadistic intent; and (4) there was no evidence of any serious physical or psychological injury.
Judge Batchelder concurred in part and concurred in the judgment, 810 F.3d 403, *416, while Judge Boggs dissented in part, 810 F.3d 403, *417, arguing that one student’s claim arising out of the teacher’s binding and gagging him because he was disruptive and spitting should have gone to the jury: this particular discipline was never repeated even though the student’s conduct occurred several other times; the teacher’s conduct was the subject of severe criticism by a teacher’s aide; there may well have been no legitimate pedagogical justification for the teacher’s conduct; and the degree of force used could be understood as malicious or sadistic.
What to me is particularly troublesome about Domingo is the third part of the test, borrowed from the Third Circuit, that the teacher must have acted with malicious or sadistic intent. That is such a high standard and is so protective of section 1983 defendants that it is ordinarily reserved for prison guards enforcing prison security, Wilson v. Seiter, 501 U.S. 294 (1991)(malicious and sadistic intent), and for police officers engaged in high speed car chases, County of Sacramento v. Lewis, 523 U.S. 833 (1998)(purpose to do harm). In both these kinds of cases, split-second decision-making involving physical well-being is required and, as a matter of policy, we don’t want to chill such decision-making unduly.
But this consideration–providing a margin for error for split-second decision-making–does not apply with the same force in the classroom. Furthermore, the classroom contains minors who are particularly vulnerable to abuse by their teachers.
I agree that we should not ordinarily constitutionalize teacher error. However, we should not immunize it from meaningful judicial review and section 1983 accountability in egregious cases such as Domingo.
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