Flaskamp v. Dearborn Public Schools

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 04a0343p.06

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

LAURA CHRISTINE FLASKAMP, X

Plaintiff-Appellant, -

-

- No. 02-2435

v. -

>

,

DEARBORN PUBLIC SCHOOLS, a municipal corporation, -

and SHARON DULMAGE , MARY LANE, AIMEE -

BLACKBURN , ALEX SHAMI, GERALD STOCKWELL, and -

PAMELA WANDLESS, in their official capacities as -

members of the Board of Education for the Dearborn -

-

Public Schools, and in their individual capacities, -

Defendants-Appellees. -

N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-72404—Lawrence P. Zatkoff, District Judge.

Argued: June 9, 2004

Decided and Filed: October 5, 2004

Before: BOGGS, Chief Judge; NELSON and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Mark H. Cousens, Southfield, Michigan, for Appellant. Camille Horne, PLUNKETT &

COONEY, Detroit, Michigan, for Appellees. ON BRIEF: Mark H. Cousens, Southfield, Michigan, for

Appellant. Christine D. Oldani, PLUNKETT & COONEY, Detroit, Michigan, for Appellees.

_________________

OPINION

_________________

SUTTON, Circuit Judge. Laura Flaskamp taught physical education in the Dearborn Public Schools.

In April 2001, the board of education for the school system denied her tenure after learning that Flaskamp

had a sexual or otherwise-intimate relationship with a former student within nine months of the student’s

high school graduation. In acting upon the school principal’s recommendation that her tenure application

be denied, the board relied in part on the view that the relationship had begun before graduation and in part

on the view that Flaskamp had failed to be candid in addressing the school system’s concerns about the

relationship.

1

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Flaskamp sued the school system and the individual board members, claiming that they had violated

her right to intimate association, her right to privacy and her right to be free of arbitrary state action—all in

violation of the Due Process Clause of the Fourteenth Amendment. The district court granted summary

judgment to the defendants on each claim. Because the board in our view did not violate the Due Process

Clause in any of these respects in denying Flaskamp’s tenure application, we affirm the district court’s

judgment in favor of the board, its members and the school system.

I.

In 1997, the Dearborn Public Schools hired Laura Flaskamp as a physical education teacher and

assigned her to one of the schools within the district, Fordson High School. Under Michigan law, Flaskamp

had to serve a four-year probationary period before she was eligible for tenure. See Mich. Comp. Laws

§ 38.81(1).

In the spring of 2000, Jane Doe, a 17-year-old senior at Fordson High School, enrolled in a leadership

class that gave students an opportunity to assist physical education instructors in teaching their classes. Doe

registered to serve as Flaskamp’s teaching assistant. Id.

As the semester proceeded, Doe and Flaskamp not only communicated with each other during the

class but also began to communicate with each other outside of class through e–mail and instant messages.

A friendship developed and by the end of the school year the two had given each other several cards and

gifts. Flaskamp, for example, gave Doe a birthday card in May 2000 (on her eighteenth birthday), gave her

a card wishing her good luck in a choir concert, gave her a graduation card and gave her a toy gun for her

graduation.

During the semester, Flaskamp sent Doe an “inappropriate joke,” which apparently was filled with

sexual innuendos. Doe’s mother happened to see the e-mail and sent Flaskamp a message explaining that

the joke was offensive and demanding an apology. Flaskamp apologized to Doe’s mother.

At some point during the semester, Flaskamp asked Doe to meet her at a park after school.

According to Doe, Flaskamp “wanted to tell me something but she never actually said it that day”; rather,

the two “just sat and hung out and talked.” JA 503. After this meeting, but before graduation, Flaskamp

told Doe “that she was gay. And then she had asked me if I was.” JA 506–07. Doe responded “I [do]n’t

know,” id., and the two proceeded to “talk[] about it for a little while,” JA 508.

In June 2000, Flaskamp attended Doe’s graduation party. That same day, Doe sent Flaskamp a note

that included the following: “My heart aches for you and my stomach is in knots. Now I had to declare.

The thoughts of my heart in hopes that you’d give me a place in your heart.” JA 863. Flaskamp told Doe

that she “was in shock that [Doe] felt this way or that she would put it down on paper and feel that deeply.”

JA 827.

The relationship did not end with Doe’s graduation. After Doe enrolled at Eastern Michigan

University, she traveled regularly to Fordson High School to visit Flaskamp. The two also continued to

communicate by phone, e-mail and instant message.

In December 2000, Doe’s mother came to the conclusion that her daughter’s relationship with

Flaskamp went beyond the “inappropriate joke” e-mail that she had intercepted the prior spring. As a result,

she sent an e-mail to Flaskamp warning her to stay away from her daughter and threatening a civil suit if she

did not comply. She also told Flaskamp that she planned to inform the school about the relationship, which

she believed had started before Doe’s graduation.

After reading this e-mail from Doe’s mother, Flaskamp contacted Fordson’s principal, Paul Smith,

to tell him about Doe’s mother’s concerns. During her conversation with Smith, Flaskamp told him for the

No. 02-2435 Flaskamp v. Dearborn Public Schools, et al. Page 3

first time about the inappropriate e-mail message she had sent to Doe during the prior spring, explaining that

she had mistakenly sent the message to everyone in her e-mail address book. She then told Smith that Doe’s

mother believed that Flaskamp and Doe had an inappropriate relationship. Denying the allegation, Flaskamp

said that she merely had a student-teacher relationship with Doe, an explanation that Smith accepted.

The end of the 2000–2001 school year marked the four-year anniversary of Flaskamp’s employment

with the school district, and it required the school board to decide whether she would receive tenure. Smith

held Flaskamp in high regard as a teacher and recommended her for tenure on March 15, 2001.

That same day, however, Doe’s mother called Smith to arrange for a meeting to discuss Flaskamp’s

relationship with her daughter. When Doe’s mother and Smith met four days later, she told Smith that

Flaskamp’s sexual-innuendo e-mail went directly to her daughter, not to everyone in Flaskamp’s e-mail

address book. And Doe’s mother told Smith that Flaskamp and her daughter frequently communicated by

e-mail and instant messages and that Flaskamp had sent as many as 15 greeting cards to Doe. According

to Smith, Doe’s mother believed that Flaskamp was “chasing after her daughter” and that the relationship

developed while Doe was a student. JA 952.

Smith met with Flaskamp later that day, at which point Flaskamp continued to deny having an

inappropriate relationship with Doe. Flaskamp later met with her union president, with the school’s human

resources director and again with Smith. Smith reminded Flaskamp of the serious nature of the allegations

and told her to sever any ties with Doe, which Flaskamp agreed to do.

During the following week, Flaskamp had a confrontation with Doe’s brother, who still was a student

at Fordson. When Flaskamp asked him how Doe was doing, he “exploded” and threatened Flaskamp.

Flaskamp reported the incident to Smith, which prompted another meeting with Doe’s mother.

At this second meeting in March 2001, Doe’s mother insisted that Flaskamp instigated the

confrontation with her son by asking him about his sister, and she reiterated her complaint that Flaskamp

was pursuing her daughter. She also told Smith of a recent instant-messaging session between Flaskamp

and her daughter that contained a number of sexually explicit references. Among other things, Flaskamp

and Doe discussed showering together and sharing a bed, and both ended the instant messaging with “xoxo”

and “sweet dreams.” JA 852. Flaskamp added “love [yo]u very very much.” Id. Relying on these

messages, Smith became convinced that Flaskamp had not been truthful with him about her relationship with

Doe, and he accordingly suspended Flaskamp with pay.

At the same time, Smith revised his evaluation of Flaskamp as well as his tenure recommendation.

He rated Flaskamp’s performance unsatisfactory and recommended that the school board deny her tenure

because she had not been truthful about her interactions with Doe. On April 23, 2001, the school board

unanimously agreed to deny Flaskamp tenure.

On June 27, 2001, Flaskamp filed a § 1983 action against the Dearborn Public Schools and the

individual members of its board for discharging her and for denying her tenure. In her complaint, she

claimed that the defendants had violated several of her Fourteenth Amendment rights—her right to intimate

association, her right to privacy and her right to be free of arbitrary state action.

The district court granted the defendants’ motion for summary judgment. Acknowledging that a right

to intimate association exists, the district court held that the right did not extend to Flaskamp’s relationship

with Doe. The court reasoned “that a relationship between close friends, even one with a sexual component

to the relationship, is not the type of relationship that has played a critical role [in] shaping our Nation’s

culture.” Flaskamp v. Dearborn Pub. Sch., 232 F. Supp. 2d 730, 741 (E.D. Mich. 2002). Because the

Constitution did not protect Flaskamp’s relationship with Doe, the court concluded, Flaskamp’s “argument

that she was deprived of her right to intimate association fails.” Id. at 741–42.

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Declining to decide whether Flaskamp had suffered a violation of her right to privacy, the court

granted qualified immunity to the individual defendants because “the contours of that right were not

sufficiently clear to have put Defendants on notice that they violated Plaintiff’s right.” Id. at 738.

Flaskamp’s failure to identify a municipal policy or custom resulting in a constitutional violation, the court

determined, also required judgment in favor of Dearborn Public Schools on this claim. Id. at 739.

Lastly, the district court held that the school board made a well-reasoned tenure decision, which

included a hearing for Flaskamp and her attorney. The district court found that Smith’s recommendation

itself was reasonable, and relying heavily on it was “not unusual for the members of the school board.” Id.

at 742. The defendants’ actions, the court therefore concluded, did not result in a violation of Flaskamp’s

right to be free of arbitrary state action. Id. at 743.

II.

We give fresh review to a district court’s summary judgment decision, applying the same familiar

standard that district courts apply. Barrett v. Harrington, 130 F.3d 246, 251 (6th Cir. 1997). While

government officials may be subject to § 1983 actions for violating an individual’s constitutional right, a

plaintiff must overcome the officials’ qualified immunity in bringing such an action. To do so, the plaintiff

(1) must establish the violation of a constitutional right and (2) must show that the right is “sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Saucier v. Katz, 533

U.S. 194, 201–02 (2001) (quotations omitted). We must consider the first question, the Supreme Court has

instructed, before we consider the second one. Id. at 200.

III.

A case that the parties variously describe as being about the right to intimate association, the right

to privacy and the right to be free of arbitrary state action tends to excite the constitutional imagination. And

while this case also arises in a relatively unusual fact pattern, it ultimately turns on the application of

straightforward and settled Fourteenth Amendment principles. The parties themselves, moreover, have

narrowed the scope of inquiry. They both agree that the sexual orientation of the plaintiff in this case makes

no difference to the outcome of the dispute. And they both agree that a school district may prevent teachers

from having intimate relationships with current students, even students that have reached the age of eighteen.

A.

The Due Process Clause of the Fourteenth Amendment prevents a “State” from “depriv[ing] any

person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. “Although a

literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive

persons of liberty,” the Supreme Court has interpreted the Clause “to contain a substantive component as

well, one ‘barring certain government actions regardless of the fairness of the procedures used to implement

them.’” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846 (1992) (quoting Daniels v. Williams,

474 U.S. 327, 331 (1986)).

Over time, the Supreme Court has construed the substantive component of the Due Process Clause

to protect two types of “liberty.” It incorporates most of the guarantees of the Bill of Rights—which

originally restricted only the Federal Government, see Barron v. Baltimore, 32 U.S. 243, 247 (1833)—and

protects these rights from state infringement. And it protects other “fundamental rights” not expressly

mentioned in the Bill of Rights but “implicit in the concept of ordered liberty,” Roe v. Wade, 410 U.S. 113,

152 (1973), and “deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland, 431

U.S. 494, 503 (1977)—including “personal decisions relating to marriage, procreation, contraception, family

relationships, child rearing, and education,” Lawrence v. Texas, 539 U.S. 558, 574 (2003) (citing Casey, 505

U.S. at 851); see Loving v. Virginia, 388 U.S. 1 (1967) (marriage); Zablocki v. Redhail, 434 U.S. 374 (1978)

(same); Eisenstadt v. Baird, 405 U.S. 438 (1972) (contraception); Griswold v. Connecticut, 381 U.S. 479

No. 02-2435 Flaskamp v. Dearborn Public Schools, et al. Page 5

(1965) (same); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (procreation); Pierce v. Society

of Sisters, 268 U.S. 510 (1925) (child rearing); Meyer v. Nebraska, 262 U.S. 390 (1923) (same).

The Supreme Court has also held that “certain kinds of personal bonds,” Roberts v. United States

Jaycees, 468 U.S. 609, 618 (1984), and “certain [kinds of] intimate conduct,” Lawrence, 539 U.S. at 562,

are protected by the substantive component of the Due Process Clause. Whether called a right to intimate

association, see Roberts, or a right to privacy, see Lawrence, the point is similar: “choices to enter into and

maintain certain intimate human relationships must be secured against undue intrusion by the State because

of the role of such relationships in safeguarding the individual freedom that is central to our constitutional

scheme.” Roberts, 468 U.S. at 617–18. See Lawrence, 539 U.S. at 567 (“When sexuality finds overt

expression in intimate conduct with another person, the conduct can be but one element in a personal bond

that is more enduring.”). The right to intimate association is not limited to familial relationships but includes

relationships characterized by “relative smallness, a high degree of selectivity in decisions to begin and

maintain the affiliation, and seclusion from others in critical aspects of the relationship.” Roberts, 468 U.S.

at 620; see also Anderson v. Lavergnem, 371 F.3d 879, 882 (6th Cir. 2004) (assuming for summary-

judgment purposes that a dating relationship between two police officers qualified as an intimate association

because the two were monogamous, had lived together and were romantically and sexually involved); Akers

v. McGinnis, 352 F.3d 1030, 1039–40 (6th Cir. 2003) (determining that some types of personal friendships

may constitute intimate associations).

Yet not all government action affecting the right to intimate association receives heightened scrutiny.

Only government action that has a “direct and substantial influence” on intimate association receives

heightened review. Anderson, 371 F.3d at 882. Government action has a “direct and substantial influence”

on intimate association “only where a large portion of those affected by the rule are absolutely or largely

prevented from [forming intimate associations], or where those affected by the rule are absolutely or largely

prevented from [forming intimate associations] with a large portion of the otherwise eligible population of

[people with whom they could form intimate associations].” Id. (brackets in original). See Vaughn v.

Lawrenceberg, 269 F.3d 703, 710 (6th Cir. 2001) (“direct and substantial” interference results “only where

a large portion of those affected by the rule are absolutely or largely prevented from marrying, or where

those affected by the rule are absolutely or largely prevented from marrying a large portion of the otherwise

eligible population of spouses”). Lesser intrusions—those that are not direct and substantial—receive

rational-basis review. See Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996).

Prior applications of this rule by the Supreme Court and this court help to illustrate its contours. In

Califano v. Jobst, 434 U.S. 47 (1977), the Court held that a social security provision that terminated certain

benefits when a recipient married someone ineligible for benefits did not directly and substantially burden

a recipient’s freedom to choose whom to marry and thus required the government to show only a reasonable

governmental objective. See also Lyng v. Castillo, 477 U.S. 635 (1986) (upholding a law providing fewer

food-stamp benefits to nuclear families than to non-related or extended families living together).

In Montgomery, this court held that an anti-nepotism rule barring employees of the same school from

marrying did not constitute a direct and substantial burden on the right to marry. “[M]erely placing a non-

oppressive burden on the decision to marry, or on those who are already married,” the court held, “is not

sufficient to trigger heightened constitutional scrutiny,” because anti-nepotism rules “are not ‘direct’ in the

sense that they place an absolute barrier in the path of those who wish to marry.” Id. at 1125. See

also Vaughn, 269 F.3d at 711 (terminating a municipal employee for marrying another municipal employee

is not a “direct and substantial” interference with the right to intimate association); Wright v. Metrohealth

Med. Ctr., 58 F.3d 1130 (6th Cir. 1995) (holding that an anti-nepotism policy does not directly and

substantially interfere with the right to intimate association).

The same rule has been applied to relationships less formal than marriage. See Anderson, 371 F.3d

at 882 (holding that a police force policy prohibiting dating between officers of different ranks did not

directly and substantially burden the right to intimate association because officers were still free to date

No. 02-2435 Flaskamp v. Dearborn Public Schools, et al. Page 6

anyone other than this small subset of the population); Akers, 352 F.3d at 1041 (holding that a Michigan

Department of Corrections rule prohibiting workers from having non-work-related contact with prisoners,

parolees, probationers and their relatives and visitors did not directly and substantially burden the right to

intimate association); Marcum v. McWhorter, 308 F.3d 635 (6th Cir. 2002) (holding that police department

could terminate a police officer for having an adulterous affair).

Applying these principles here, we need not decide whether Flaskamp’s relationship with

Doe—whether before Doe graduated from high school or in the nine months after graduation—constituted

the kind of intimate association protected by the Fourteenth Amendment. It suffices here that the board’s

action did not “directly and substantially” affect Flaskamp’s right of intimate association and that the board

did not act in an unreasonable manner in addressing the issue.

Even if we were to treat the board’s action as amounting to a ban on relationships between teachers

and their students for, say, one year after graduation, teachers would still be able to date a wide range of

adults of a wide range of ages. Cf. Akers, 352 F.3d at 1040–41. In this respect, the restriction is not unlike

the one in Anderson, where we held that a police policy prohibiting dating between officers of different ranks

was not a direct and substantial burden on the right to intimate association because officers were still free

to date anyone other than this relatively small subset of the population. 371 F.3d at 882. The same is true

here; rational-basis review applies.

Rational-basis review, the Supreme Court has held, is satisfied “so long as there is a plausible policy

reason” for the decision, Nordlinger v. Hahn, 505 U.S. 1, 11 (1992), and it is “entirely irrelevant for

constitutional purposes” whether the plausible reason in fact motivated the decisionmaker, FCC v. Beach

Communications, Inc., 508 U.S. 307, 315 (1993). Several rational explanations support the board’s decision.

First, Principal Smith’s assessment of Flaskamp’s truthfulness—his conclusion that she had not been

candid in responding to his questions about the issue—alone provided a legitimate explanation for the

board’s decision to deny Flaskamp tenure. Cf. Beilan v. Bd. of Pub. Ed., 357 U.S. 399, 405 (1958) (“By

engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech

or association. He did, however, undertake obligations of frankness, candor and cooperation in answering

inquiries made of him by his employing Board examining into his fitness to serve it as a public school

teacher.”) (emphasis added). In view of the school board’s policy preventing teachers from dating students

and in view of Doe’s mother’s allegations, it was appropriate for the principal to ask Flaskamp the questions

that prompted this lack of candor, whether those questions went to the nature of the relationship before

graduation or to the nature of the relationship in the months after graduation. Cf. Shelton v. Tucker, 364

U.S. 479, 485 (1960) (“There can be no doubt of the right of a State to investigate the competence and

fitness of those whom it hires to teach in its schools.”).

Second, on the basis of Flaskamp’s answers to these questions as well as other evidence that

Flaskamp and Doe had engaged in a sexual relationship after graduation, the board rationally could conclude

that the romantic relationship started before graduation. The type of intimate association for which

Flaskamp seeks constitutional protection does not generally spring into existence at one point in time; it

develops over a period of time. A school board thus legitimately could be concerned that a romantic

relationship between a teacher and former student soon after graduation provides circumstantial evidence

that the same relationship existed before graduation. As Flaskamp acknowledges, “[t]he four Board of

Education members who specifically remember the reason for their vote recall that they were convinced that

Plaintiff had had an improper relationship with [Doe] when she was a student. They believed this was so

because of her present relationship.” Appellant Br. at 38–39.

Third, in view of the importance of prohibiting teachers and students from beginning romantic

relationships, a school board could act prophylactically in this area by prohibiting sexual relationships

between teachers and former students within a year or two of graduation. Such a policy would prevent high

school seniors from being perceived as prospects eligible for dating immediately after graduation; it would

No. 02-2435 Flaskamp v. Dearborn Public Schools, et al. Page 7

prevent interference with the education of other family members who still may be in school (as happened

with Doe’s brother); and it would curb sexual harassment liability arising from claims that a policy against

student-teacher relationships is not adequately enforced, see Kinman v. Omaha Pub. Sch. Dist., 171 F.3d

607 (8th Cir. 1999); Doe v. Bd. of Educ., 18 F. Supp. 2d 954 (N.D. Ill. 1998). While the school board here

did not have such a policy, its legitimacy bolsters the reasonableness of the school board’s decision in this

case to be skeptical of Flaskamp’s claim that her romantic relationship with Doe did not start until after Doe

had graduated.

B.

Flaskamp next argues that the board’s action violated another right protected by the Due Process

Clause—her right to privacy. We disagree.

The Supreme Court has recognized two privacy rights: an autonomy-based right to privacy and a

right to control the dissemination of sensitive information about one’s self. See Whalen v. Roe, 429 U.S.

589, 599–600 (1977); Bloch v. Ribar, 156 F.3d 673, 683 (6th Cir. 1998). The first principle protects an

individual’s freedom in making certain highly personal choices about one’s relationships and family, id.,

which in this instance is materially akin to the right to intimate association, see Marcum, 308 F.3d at 641;

Fleisher v. Signal Hill, 829 F.2d 1491, 1500 (9th Cir. 1987) (“[T]he freedom of intimate association is

coextensive with the right of privacy; both the freedom of intimate association and the right of privacy

describe that body of rights that protect[s] intimate human relationships from unwarranted intrusion or

interference by the state.”). Because the board’s actions did not directly and substantially impact Flaskamp’s

ability to engage in intimate relationships, as we have already shown, and because Flaskamp has offered no

explanation how this right to privacy differs from the right to intimate association, we need not

independently address this claim. See Kallstrom v. Columbus, 136 F.3d 1055, 1061 (6th Cir. 1998) (holding

that release of information established a cognizable right-to-informational-privacy claim but did not raise

a claim under the autonomy principle because it did not “seriously infringe upon the intimate

decisionmaking incidental to protection of the family”).

The second principle protects an individual’s “informational right to privacy,” Bloch, 156 F.3d at

683, the right to prevent sensitive information from becoming public, Whalen, 429 U.S. at 600; Nixon v.

Adm’r of Gen. Servs., 433 U.S. 425, 457 (1977). In Whalen, the Supreme Court upheld a New York statute

requiring physicians to compile prescription records with patient information for a state-run database. The

Court found little possibility that the information would be widely disseminated and little risk that the

dissemination of the information would deter patients from seeking the prescriptions at issue. Id. at 600–03.

In Nixon, Congress enacted a law that required the screening of the former president’s archives in

preparation for their use in judicial proceedings and for their eventual public access. Id. at 433–34. Under

the law, archivists were asked to identify President Nixon’s personal and private documents, then to return

these documents to him. Id. The Court held that the screening did not violate President Nixon’s right to

privacy because it amounted to a limited intrusion, the intrusion was performed by archivists who were in

the habit of being discreet, President Nixon was a public figure, he had no expectation of privacy in most

of the documents and the screening was necessary to identify which documents should be returned to him.

Id. at 465. In neither of these two cases, it bears adding, did the Court uphold the claimant’s constitutional

claim.

This court has narrowly construed Whalen and Nixon to “extend the right to informational privacy

only to interests that implicate a fundamental liberty interest.” Bloch, 156 F.3d at 684. In assessing these

claims, we apply a two-part test: “(1) the interest at stake must implicate either a fundamental right or one

implicit in the concept of ordered liberty; and (2) the government’s interest in disseminating the information

must be balanced against the individual’s interest in keeping the information private.” Id.

In Bloch, we held that “a rape victim has a fundamental right of privacy in preventing government

officials from gratuitously and unnecessarily releasing the intimate details of [a] rape where no penological

No. 02-2435 Flaskamp v. Dearborn Public Schools, et al. Page 8

purpose is being served.” Id. at 686. On balance, we concluded, the plaintiff established a cognizable

constitutional claim because the defendant sheriff had released details of the rape at a press conference and

there was no law-enforcement purpose served by the dissemination of the information. Id.

In Kallstrom, police released an officer’s personnel files to an attorney working for several criminal

defendants. The court found a fundamental liberty interest in “preserving [the officers’] lives and the lives

of [ ] their family members, as well as preserving their personal security and bodily integrity,” 136 F.3d at

1062, an interest that rose to “constitutional dimensions” given the risks of releasing the information to

individuals potentially seeking revenge in the aftermath of their prosecution. Id. at 1064. Releasing the

information to the criminal defendants’ attorney, we held, did not further the government’s interest in

informing citizens about the workings of law enforcement. Id. at 1065.

In Hughes v. North Olmstead, 93 F.3d 238 (6th Cir. 1996), the disclosure stemmed from a police

force investigation of an officer charged with sexual misconduct. Id. at 240. At issue was a question by the

investigator to the officer’s wife, also an officer on the force, about whether their marriage was an exclusive

relationship. Id. at 240–41. Such questioning, we held, did not violate a clearly established constitutional

right because it was related to an assessment of job performance. Id. at 242.

Relying on these cases in general and on Bloch v. Ribar in particular, Flaskamp argues that Smith’s

questioning about her post-graduation relationship with Doe impermissibly pried into her personal life. We

disagree. As with Flaskamp’s intimate-association claim, we need not address whether her claim implicates

a fundamental right. Here, it suffices that Smith and the board did not publicly disseminate the information

and had ample reasons for these inquiries.

Any intrusion into Flaskamp’s informational privacy, as an initial matter, was relatively minor

because the disclosure itself was quite limited. Compare In re Zuniga, 714 F.2d 632, 642 (6th Cir. 1983)

(rejecting claim arising from disclosure to grand jury because the “information will be disclosed only to the

minimal extent necessary to promote a proper governmental interest and will not be subject to widespread

dissemination”), with Bloch, 156 F.3d at 686 (finding cognizable claim where information was disseminated

at a press conference). Until this lawsuit was filed, the results of Smith’s investigation were not

disseminated publicly and (so far as the record shows) were shared only with the board members asked to

vote on Flaskamp’s future employment.

Just as we have treated the extent of dissemination as an important factor in assessing an

informational-privacy claim, so also we have considered the explanation the government body has given for

seeking the information in the first instance in assessing an informational-privacy claim, see Hughes, 93 F.3d

at 240–41. In this instance, the board’s interests in enforcing its prohibition against teachers dating students

justified this limited inquiry into Flaskamp’s relationship with Doe. See, id. at 242 (upholding inquiry into

status of marital relationship where officer-husband was under investigation for sexual misconduct).

Flaskamp concedes that it was appropriate to ask about the status of the relationship before Doe graduated.

And while Flaskamp protests any inquiries about the status of the relationship after Doe had graduated, she

never disclosed any information about the relationship at that point. Instead, the school principal (Smith)

learned about the nature of the relationship from Doe’s mother and apparently believed he learned something

about the relationship through Flaskamp’s lack of candor in responding to whether Flaskamp and Doe still

were involved with each other. Under these circumstances, Flaskamp’s privacy claim reduces to the

complaint that Smith had no right to ask her about the current status of her relationship with Doe. But

because information about a current relationship may well cast light on the nature of the relationship nine

months earlier, the question was a legitimate one. In the final analysis, the limited dissemination of the

information about Flaskamp’s relationship and the legitimacy of Smith’s questions about the relationship

establish that Flaskamp’s informational-privacy rights were not violated.

No. 02-2435 Flaskamp v. Dearborn Public Schools, et al. Page 9

C.

Flaskamp, lastly, argues that the board’s action violated still another component of substantive due

process protected by the Fourteenth Amendment—the right not to be subject to irrational and arbitrary state

action. Pet’r Br. at 40; see Kelly v. Johnson, 425 U.S. 238, 248 (1976). In view of our earlier conclusions,

it should be plain that the board did not infringe this modest constitutional requirement in suspending

Flaskamp with pay and in denying her application for tenure.

IV.

For these reasons, we affirm.