Nahmod Law

Archive for the ‘Constitutional Law’ Category

What Does It Take to “Shock the Conscience” in the Classroom?

Substantive Due Process and the “Shocks the Conscience” Test

Many of us know of the substantive due process test of “shocks the conscience” and the very high hurdle it presents for section 1983 plaintiffs in cases in which it applies.

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.

Comment

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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Written by snahmod

July 6, 2016 at 2:30 pm

“Get Over It”: Justice Scalia and Bush v. Gore, Roe v. Wade and Obergefell v. Hodges

It is one of the worst Supreme Court decisions in history.

No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

All four of these decisions are morally repugnant, and several are even evil.

No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.

Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.

Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”

But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.

He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”

He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due process right to same-sex marriage.

I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.

But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.

I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.

I still cannot get over it.

 

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Written by snahmod

February 22, 2016 at 2:02 pm

Posted in Constitutional Law

Federal Attorney’s Fees Statute Means What SCOTUS Says It Means: Slapping Down the Idaho Supreme Court

It is hard to believe in this day and age that a state Supreme Court thinks it can advance its own interpretation of federal law contrary to an interpretation by the United States Supreme Court. But that’s exactly what happened in James v. Boise (No. 15-493), handed down on January 25, 2016.

In a terse per curiam decision, the Supreme Court slapped down the Idaho Supreme Court and declared that its interpretation of 42 U.S.C. section 1988, the Civil Rights Attorney’s Fees Awards Act, governed.

Recall that section 1988 provides that “a reasonable attorney’s fee” should be awarded to “the prevailing party” in a section 1983 suit. In Hughes v. Rowe, 449 U.S. 5 (1980)(per curiam), the Supreme Court, relying on the clear legislative history, interpreted this language as creating a double standard: a prevailing plaintiff is ordinarily entitled to fees but a prevailing defendant is only entitled to fees where the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” See chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015)(West).

However, in the James case, which arose in the Idaho courts, the Idaho Supreme Court expressly rejected this interpretation of section 1988 as applied to prevailing defendants when section 1983 claims are brought in state courts.

Unsurprisingly, the Supreme Court reversed. Giving the Idaho Supreme Court a lesson from the basic course in constitutional law, the Supreme Court cited Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), for the proposition that Supreme Court interpretations of federal law are the supreme law of the land. They trump any contrary state court interpretations.

It quoted Rivers v. Roadway Express, Inc., 511 U.S. 298, 314 (1994): “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.”

There is no need to comment on this decision. Res ipsa loquitor.

 

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Written by snahmod

February 12, 2016 at 11:53 am

My Class on Race, Dred Scott and Korematsu (Audio)

On October 21, 2015, I audio-taped a 55-minute makeup class on racial discrimination that covered two major (and infamous) Supreme Court cases, Dred Scott and Korematsu.

I hope you find it of interest.

Here it is:

 

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Written by snahmod

January 4, 2016 at 10:54 am

Posted in Constitutional Law

My Class on Presidential Immunity and Separation of Powers, with an Introduction to Preemption (Audio)

On October 7, 2015, I audio-taped a 55-minute makeup class on presidential immunity–our last class on separation of powers–and then began preemption with a hypothetical. Cases covered included Nixon v. Fitzgerald and Clinton v. Jones.

I hope you find it of interest.

Here it is:

listen online:

  • or download file here

 

Follow me on Twitter @NahmodLaw.

Written by snahmod

January 4, 2016 at 10:37 am

Posted in Constitutional Law

My Class on the Affordable Care Act Case: Taxing, Spending and the Commerce Clause (Audio)

I audio-recorded a 55-minute makeup constitutional law class on the groundbreaking Affordable Care Act Case (NFIB v. Sibelius).

This class took place on September 16, 2015, and dealt with the taxing power, the spending power, the individual mandate of the Affordable Care Act and the commerce power.

I hope you find it of interest.

Here it is:

listen online:

  • or download file here

 

Follow me on Twitter @NahmodLaw

Written by snahmod

December 28, 2015 at 11:42 am

Posted in Constitutional Law

My First Amendment Class on Access to the Press and to Information (Audio)

I audio-recorded a 1 1/2 hour makeup class in my First Amendment course. This class took place on November 18, 2015, and dealt with freedom of the press, access to the press and press/public access to information.

This class began with my brief review of the preceding class that addressed the First Amendment as a shield for the press, including Cohen, Branzburg and Zurcher.

I then got right into the cases that address the First Amendment as a sword, including Red Lion, Miami HeraldRichmond Newspapers and Houchins.

I hope you find it of interest.

Check it out below.

listen online:

  • or download file here

 Follow me on Twitter @NahmodLaw

Written by snahmod

December 28, 2015 at 10:57 am

Posted in First Amendment

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