Doe, John v. Heck, Carla

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-3648

JOHN DOE and JANE DOE, individually and on behalf

of their minor son, JOHN DOE, JR., and JOHN ROE and

JANE ROE, 1-7, and GREENDALE BAPTIST CHURCH AND

ACADEMY,

Plaintiffs-Appellants,

v.

CARLA HECK, individually and in her official capacity

as a case worker for the Bureau of Milwaukee Child

Welfare, JOHN WICHMAN, individually and in his

official capacity as a case worker for the Bureau of

Milwaukee Child Welfare, and CHRISTINE HANSEN,

individually and in her official capacity as a service

manager for the Bureau of Milwaukee Child Welfare,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99 C 907—J. P. Stadtmueller, Judge.

____________

ARGUED MAY 30, 2002—DECIDED APRIL 16, 2003

____________

Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.,

and MANION, Circuit Judges.

2 No. 01-3648

MANION, Circuit Judge. Several weeks after learning that

administrators of the Greendale Baptist Church and Acad-

emy used corporal punishment as a form of discipline

in primary grade school, caseworkers for the Bureau of

Milwaukee Child Welfare initiated an investigation for

child abuse. Over the objection of the Academy’s principal,

and without a warrant or parental notification or consent,

the caseworkers removed eleven-year-old John Doe Jr.

from his fourth-grade classroom and interviewed him

about corporal punishment that he and other students may

have received and certain family matters. Thereafter, the

caseworkers unsuccessfully attempted to interview John

Jr.’s parents and sister, and threatened to remove the Doe

children from their parents’ custody. The caseworkers also

attempted, on a separate occasion, to interview other stu-

dents at the Academy, whom John Jr. had identified as

having been spanked, but the principal at the school flatly

refused to grant them access to the children without a

court order or parental consent. The Bureau eventually

ended its investigation due to lack of information, and the

Academy and parents filed suit against three child welfare

caseworkers, in both their individual and official capac-

ities, alleging that the manner in which they handled the

investigation violated their rights under the Fourth and

Fourteenth Amendments to the United States Constitu-

tion. The defendant caseworkers filed a motion for sum-

mary judgment, arguing that they were entitled to quali-

fied immunity from the plaintiffs’ suit. The district court

granted the motion, and the plaintiffs appeal. Although

we conclude that some of the actions taken by the defen-

dants during the course of the Bureau’s investigation were

unconstitutional, we, nevertheless, agree with the district

court that the caseworkers are entitled to qualified immu-

nity from plaintiffs’ suit. The district court’s decision is,

therefore, affirmed.

No. 01-3648 3

I.

The Bureau of Milwaukee Child Welfare (“Bureau”),

a division of the Wisconsin Department of Health and Fam-

ily Services (“Department”), provides child abuse preven-

tion and related services in Milwaukee County. The Bu-

reau receives reports of child maltreatment at its intake

office. When an intake screener receives a call, he drafts an

intake form to “screen in” or “screen out” the report for

investigation. If the report is screened in, an intake super-

visor will assign it an urgency level to determine how

quickly an investigation must be initiated. Although state

law technically requires a 24-hour response to all screened-

in reports, Bureau guidelines separate reports into three

categories: (1) 0-2 hour response; (2) 24-hour response;

and (3) 2-5 day response. Once an urgency level has been

assigned by the intake supervisor, the intake office then

opens a file and e-mails it to one of the five field offices,

each covering a particular geographic area. After the file

is received by a field office, a site supervisor assigns the

file to a caseworker, who is then required to contact the

reporter(s) (of child abuse), “collateral contacts” (i.e., eye-

witnesses or others with knowledge of the situation),

and the alleged maltreater, and to document all such con-

tacts. The Bureau’s “Investigation Standards” establish

the protocols for investigating different types of alleged

maltreaters. For example, if the alleged maltreater is a

parent, the caseworker must, in descending order, inter-

view the child, any siblings, the non-maltreating parent

(if applicable), and the maltreating parent. Caseworkers

must also investigate: (1) physical evidence (e.g., injuries);

(2) “systems assessment” information about the child

and family; and (3) reports from anyone with information

about the case. Based on all of the foregoing information,

the caseworker and supervisor assigned to the case must

4 No. 01-3648

then determine whether to substantiate that maltreatment

1

has indeed occurred.

On September 8, 1998, the Bureau received a letter

claiming that a ten-year-old female student, M.G., had

been bruised by a spanking that she received at Greendale

Baptist Church and Academy, Inc. (“Greendale” or the

“Academy”), a private Christian school. The Bureau took

no action on this letter, neither screening it in nor screen-

ing it out. On September 30, 1998, the individual respon-

sible for reporting the incident sent a second letter to the

Bureau because it had not yet responded to the first one.

The Bureau did not process either report of maltreatment,

however, until November 3, 1998, when, nearly two months

after the initial complaint, it was given a 24-hour urgency

designation and assigned to John Wichman, an experi-

enced Bureau caseworker.

On November 4, 1998, Wichman interviewed Mrs. P.,

M.G.’s guardian and great-grandmother, to discuss the

allegation of mistreatment. Mrs. P. told Wichman that M.G.

(then a third-grader) had been spanked twice by Green-

dale’s principal, Troy Bond, within the first two weeks

of the school year, and that she noticed a bruise on the

girl’s back after the second spanking. Mrs. P stated that

neither she nor her husband physically disciplined M.G.,

that she disagreed with Greendale’s corporal punish-

ment policy, and that she withdrew the child from the

school shortly after the second spanking. She also ex-

pressed concern for the other students at Greendale, and

provided Wichman with a copy of the Academy’s hand-

1

According to the Bureau’s Investigation Standards, substantia-

tion depends on four primary sources of information: (1) observa-

tion and interviews with principal sources; (2) interviews with

secondary sources; (3) agency records; and (4) written reports

from other professionals.

No. 01-3648 5

2

book, which outlined the school’s disciplinary policy.

Finally, Mrs. P. told Wichman that she had talked to the

police about the situation, and that they had advised her

2

When a child is enrolled at Greendale, parents are given a

copy of the school’s “Parent/Student Handbook.” During the

relevant time period, this handbook included the following

section on “disciplinary procedures”:

MARK SYSTEM

The mark system will be used for enforcing discipline and

control in the classroom. Penalties for marks are at the

discretion of the individual teacher. Marks are accumulated

weekly for students in all elementary grades, and they begin

each week with a clean record. Three marks in one day or

four marks in one week will result in 1 swat to be adminis-

tered the same day the last mark was given.

MARK OFFENSES

First Mark Verbal reprimand

Second Mark Note sent home to parents

Third Mark Student sent to office to meet with princi-

pal. Fifteen-minute detention after school

the next school day

Fourth Mark Student meets with principal for 1 swat

MAJOR OFFENSES

The child will be sent immediately to the principal for

disciplinary action, and the parent will be notified. An

attempt will be made to notify the parents when corporal

punishment is needed; however, a swat will be given

regardless [sic] if the parent can be reached or not. All

discipline must be given the same day as the offenses

were made, and the principal will administer the swat.

Parents should deal with each mark at home to deter get-

ting enough marks for a swat.

6 No. 01-3648

that nothing could be done without pictures of the alleged

injury—pictures she had not taken.

Nearly two weeks later, on November 16, 1998, Wichman

interviewed M.G. alone to discuss the spankings she

received while attending Greendale. M.G. described the

spankings to Wichman, indicating that the first time physi-

cal punishment was given for inappropriate behavior (e.g.,

lying), and the second time was due to rule violations

that she claimed were not her fault. She stated that the

second paddling was administered above the rear area,

approximately six inches above her tailbone, and that she

had struggled to get away from Bond. M.G. also informed

Wichman that she knew of at least one other student, a

boy named John (i.e., plaintiff John Doe Jr.), who had been

spanked by Bond as well. She did not say, however, that

John Jr. had been hurt by the spanking. Based solely on the

statements of Mrs. P. and M.G., Wichman concluded that

M.G. had been bruised by the second spanking.

The next day, on November 17, 1998, Wichman met

with his supervisor, Christine Hansen, to discuss his con-

tacts with Mrs. P and M.G.; specifically, the injury M.G. had

allegedly received as a result of the second spanking

administered to her by Bond and M.G.’s assertion that

another student at Greendale had been spanked as well.

Wichman expressed his concern to Hansen that: (1) “the

principal may have been out of control in administering

the physical punishment to [M.G.], and may have been

out of control at other times with other children, and may

be again when administering this type of punishment”;

(2) young children “were being subject to this type of phys-

No. 01-3648 7

3

ical discipline”; (3) “the parent/student handbook spec-

ified this type of punishment was used”; and (4) “a num-

ber of the parents [might have] prior Child Protective Ser-

vices referrals.” After reviewing the Greendale parent/

student handbook and Wichman’s written reports of his

interviews with Mrs. P. and M.G., Hansen “decided that

the report of abuse as to [M.G.] could be substantiated

because there was credible evidence from the student

and [her guardian] that the abuse had occurred. . . . [and]

that further investigation into the circumstances of the

second child [identified by M.G. as having] been swatted

4

was in order.” The decision to substantiate M.G.’s abuse

was contrary to Bureau’s Investigation Standards, which

provide that substantiation can occur only after the as-

signed caseworker has obtained statements from all “per-

tinent persons,” including the alleged maltreater and any

eyewitnesses. At the time Hansen made the decision to

substantiate Bond, Wichman had not interviewed Bond

or M.G.’s teacher, Carol Finck, who was present during

both of the girl’s spankings.

On November 25, 1998, Wichman interviewed M.G.

again to obtain a physical description of the student

she identified during the first interview as having been

spanked by Bond. On December 7, 1998, at Hansen’s be-

3

Greendale educates children from kindergarten to fourth

grade.

4

The decision to expand the investigation to include other

students at Greendale came after Hansen and Wichman con-

sulted with Bureau attorney, Barb Reinhold. According to

Hansen, “[a] framework was provided to us by our attorney,

and we implemented the framework. . . . [to] identif[y] other

children who [M.G.] thought may have been hit like she had

been . . . .”

8 No. 01-3648

hest, Wichman prepared an internal case summary on the

alleged spanking of John Doe Jr. and “the allegations in

regards to corporal punishment that has [sic] been uncov-

ered at the Greendale Baptist Academy.” After reviewing

the case summary, and consulting with Bureau attorney

Reinhold, Hansen concluded that it would be appropriate

for a caseworker to interview John Doe Jr. at the school.

She also determined that John Jr.’s parents should not be

notified of the interview, believing that they might be

complicit in any abuse that may have occurred, since

they presumably knew of the school’s corporal punish-

ment policy but did not prevent their child from being

spanked.

In order to facilitate the expanded investigation, Hansen

and Reinhold directed Wichman to complete an intake

referral form for John Doe Jr., which he did on December 14,

1998. On that form, Wichman noted his opinion “[t]hat

any child in the Academy that has been physically disci-

plined in the manner that this [case]worker’s assessment

ha[s] revealed, should be also assessed for CPS services.”

Finally, more than three months after the first complaint,

the report was screened in for a 24-hour investigation,

and, on December 15, 1998, the file was assigned to Carla

Heck, another Bureau caseworker.

On December 16, 1998, Wichman and Heck went to

5

Greendale to interview John Doe Jr. They did not call the

school ahead of time because Bond, the principal, was the

5

The district court noted that although “Ms. Heck presumably

discussed the case with Mr. Wichman [before visiting Green-

dale] . . . [she] did not document any discussions she may have

had,” and that “[t]his apparent failure violated [Bureau] ‘proto-

col,’ which indicates that all contacts with a reporter (even a co-

worker) should be documented.”

No. 01-3648 9

alleged maltreater. Prior to their departure, Bureau “super-

visors and upper management,” which included Bureau

attorney Reinhold, advised Wichman and Heck that if

John Jr. identified other children who had been spanked,

they were required to make referrals on those children

in the same manner that John Jr. had been referred.

Wichman and Heck also took along a copy of Wis. Stat.

§ 48.981(3)(c)1, which provides, inter alia, that “[t]he agency

may contact, observe or interview the child at any loca-

tion without permission from the child’s parent, guardian

or legal custodian if necessary to determine if the child is

in need of protection or services, except that the person

making the investigation may enter a child’s dwelling only

with permission from the child’s parent, guardian or legal

custodian or after obtaining a court order.” Both Wichman

and Heck believed, from training and as a matter of Bu-

reau policy, that this statute gave them the authority to

interview John Jr. at Greendale without a court order or the

6

consent of his parents or the school.

At approximately 2:15 p.m., Wichman and Heck en-

tered the foyer of Greendale Baptist Church (the school is

located inside the church building). When Principal Bond

came out of his office to greet them, Wichman and Heck

advised him that they were with the Bureau and had

come to the school to interview a student. After requesting

and receiving proper identification, Bond asked them to

identify the child they wished to interview. Wichman and

Heck then gave Bond a physical description of the child

and a first name (“John”), which Bond immediately recog-

6

Section 48.981(3)(c)(1) has been interpreted as providing

Bureau caseworkers with the authority to interview children

at school without the permission of parents or school personnel.

See 79 Wis. Op. Atty. Gen. 49 (1990).

10 No. 01-3648

nized as John Doe Jr. Bond asked Wichman and Heck to

wait in the foyer while he notified the church’s assistant

pastor, Gary Holloway, of their intent to interview John

Jr. Shortly thereafter, Bond returned to the foyer with

Holloway. Holloway asked Wichman and Heck whether

he was legally required to allow them to interview the

boy. Wichman and Heck told Holloway that he was re-

quired to allow them to conduct the interview, provided

him with a copy of § 48.981(3)(c)1, and advised him that

the statute gave them the authority to interview the child

at school without notice or parental consent. Holloway

stated that it was his understanding that a court order was

required before a private school could be forced to allow

such an interview to take place on its premises. Wichman

told Holloway that a private school was no different than

a public school under the statute, and that they had the

authority to conduct the interview at the school. Heck

stated that they could call the police, who would then

force the school to allow the interview in short order.

Holloway then asked what the interview would involve,

and whether he or Bond could be present during the

questioning. Wichman and Heck stated that their inves-

tigation was confidential, that they were not at liberty to

disclose the purpose of the interview, and that neither

Bond nor Holloway could be present during the interview.

At this point, Bond and Holloway told Wichman and Heck

that they were not going to allow the caseworkers to in-

terview John Jr. without a court order, and suggested that

the police be called to intervene in the matter. Wichman

then left the building and called the police from his cellu-

lar phone.

Shortly thereafter, Officer Michael Adamczak arrived

on the scene and met with Wichman and Heck in the

church’s parking lot. Unsure of how to proceed, Adamczak

called the police station and requested guidance from his

No. 01-3648 11

supervisor, Captain Robert Dams, on how to handle the

matter. Dams called the local district attorney’s office, and

received confirmation that § 48.981(3)(c)1 gave the case-

workers the authority to interview children suspected

of abuse on school premises without having to notify or

obtain the consent of their parents or the school. Dams and

two other police officers then traveled to Greendale to as-

sist Adamczak in advising Bond and Holloway that the

caseworkers had the authority to interview John Doe Jr.

Although Holloway reluctantly agreed to allow the inter-

view, he remained apprehensive about doing so and ques-

tioned Dams about whether the caseworkers needed a

court order. Dams advised Holloway that “a court or-

der was not needed for an interview under exigent cir-

7

cumstances,” and presented him with another copy of

§ 48.981(3)(c)1. After Dams made it clear that he was go-

ing to force the school to allow Wichman and Heck to

interview John Jr., Bond and Holloway allowed the case-

workers to proceed with their investigation. John Jr. was

then escorted to the nursery section of the church for the

interview.

During the interview, John Doe Jr., a fourth-grader, told

Heck that Bond had spanked him once with a long wood-

en paddle approximately four months ago, and that he

held back tears during the spanking. He also stated that

after the spanking Bond and his teacher, Carol Finck (who

had witnessed the spanking), prayed with him. Although

she had not yet spoken with Bond or Finck, Heck immedi-

ately suspected that abuse had occurred “due to the fact

that a fourth-grade boy would admit to wanting to cry.”

7

Although Dams made reference to “exigent circumstances,”

neither the caseworkers nor the police officers indicated that

they believed John Jr. was under any threat of immediate harm.

12 No. 01-3648

Heck also asked John Jr. whether his parents were aware

that he had been spanked. The boy indicated that they were

aware of the spanking. Heck then asked whether his par-

ents had ever paddled him at home. John Jr. stated that

both he and his sister had been spanked before by their

parents, and laughed as he told Heck of an incident where

the plastic paddle used by his parents to spank them

broke during a spanking of his sister. He then told Heck

that after the plastic paddle broke, his parents used a plastic

or metal spatula to spank them. Heck also asked John Jr.

about his father’s military history, where his father worked,

and where his sister attended school. Finally, Heck asked

John Jr. whether he knew of any other students at the

school who had been spanked. John Jr. stated that he was

aware of at least six other students, whom he identified

for Heck.

After the interview, Wichman and Heck attempted to

interview Bond, but Bond declined to answer any of their

questions without an attorney present. Wichman then

gave Bond his business card, and requested that he call to

arrange a time when they could meet. Wichman and Heck

made no attempt, however, to interview Carol Finck, the

teacher who had witnessed the spankings administered

by Bond to both M.G. and John Doe Jr. The caseworkers

and police then drove to the Doe residence to interview

John Jr.’s parents, but they were not home. Heck left a note

for the Does, requesting that they contact her immediately

regarding an urgent matter. Later that day, Mrs. Doe

returned home, saw the card, and immediately called

Heck. Heck was not in at that time, and Mrs. Doe left her a

voice message. Within approximately fifteen minutes, Heck

called Mrs. Doe back to arrange a meeting. Mrs. Doe told

Heck that she was overwhelmed that the Bureau had

interviewed her son at school, but nonetheless agreed to

meet with her the following day at 3:00 p.m.

No. 01-3648 13

On December 17, 1998, Mrs. Doe telephoned Heck

thirty minutes before their scheduled appointment to

reschedule the meeting for sometime after the holidays.

Heck asked why she was cancelling the appointment so

close to the time of the meeting. Mrs. Doe simply repeated

that it was necessary for her to reschedule the meeting.

Heck then became angry, informed Mrs. Doe that she

“could take this whole thing up a notch,” and “go to the

District Attorney with what I already have.” Heck also

stated that she did not believe Mrs. Doe was taking the

matter seriously and that she and her husband were

“hindering [the] investigation.” Mrs. Doe told Heck that

neither she nor her husband were attempting to hinder the

Bureau’s investigation, and that they both respected the

work performed by social workers. Prior to the conclu-

sion of the conversation, Mrs. Doe advised Heck that she

and her husband would be retaining an attorney, and that

she would have the attorney contact Heck regarding the

Bureau’s investigation of their family. Before Mrs. Doe

could say goodbye, Heck slammed the phone down,

hanging up on her. In her written report, Heck indicated

that “she [Mrs. Doe] cancelled the meeting and refused to

discuss anything further.”

Later that day, Wichman called Greendale’s attorney,

Michael Dean, to set up an interview with Bond. Dean

proposed that they all meet at his office, but Wichman

demanded that the meeting take place at the Bureau.

Wichman then told Dean that if the meeting did not

take place at his office, he would simply report that Bond

had refused to be interviewed. After the conversation, Dean

wrote a letter to Wichman memorializing the offer to meet

at his office, but Wichman never responded to the letter

and made no further attempts to interview Bond. Instead,

Wichman misrepresented to Hansen and David Hergert,

14 No. 01-3648

a deputy director with the Bureau, that Bond had flatly

refused to be interviewed.

On December 18, 1998, Wichman and Heck went to

several private schools in the area in an attempt to inter-

view John Doe Jr.’s sister, but they were unable to locate

her. Later that afternoon, Heck called Mrs. Doe to sched-

ule an interview, but Mrs. Doe informed her that she and

her husband had not yet secured the services of an attor-

ney. Heck went on vacation on the next day, and did not

return until December 28, 1998. During her absence, how-

ever, Wichman continued to work on the case, and, on

December 21, 1998, conferred with Hansen and Bureau

attorney Reinhold on how to proceed with investigating

the possible maltreatment of the other children identified

by John Jr. as having been spanked by Bond. There was

some confusion on the appropriate course of action, as

the Bureau had little experience dealing with private schools

or individuals represented by counsel. There was also

some discussion of turning the entire matter over to the

police, but they eventually decided to open “companion”

8

files on all of the children. They also decided to inter-

view the children identified by John Jr. without notifying

or obtaining the consent of their parents, once again as-

suming that the parents were aware of the school’s disci-

plinary policy, had consented to it, and were not protect-

ing their children from being spanked by Bond.

8

In one of Heck’s written reports, she indicated “it is un-

known whether the parents of children attending this school

[Greendale] are aware of the discipline techniques being used,”

that she was “not aware of any action taken by the school

in response to these incidents,” and that she felt “any child

attending this school who has been subjected to inappropri-

ate physical discipline should be assessed for [Bureau] services.”

No. 01-3648 15

On December 23, 1998, Wichman issued “mandatory”

reports on the other Greendale students being investigated.

Contrary to Bureau protocol, however, Wichman opened

a file on the corporation, “Greendale Baptist Academy,”

rather than on the specific children or parents. He did so

without the knowledge or consent of Hansen, who later

indicated that she had “no inkling” why Wichman had

handled the cases in such a manner. Using a church mem-

bership directory that he had taken from Greendale,

Wichman also ran background checks (for prior contacts

with the Bureau) on every family listed in the directory,

whether they had children enrolled at the school or not.

Although Hansen did not “exactly agree” with this action

because she “felt [it] a little too intrusive,” she did not ob-

ject to Wichman conducting the background checks.

On December 28, 1998, at approximately 9:00 a.m., the

Does received a telephone call but chose not to answer

the phone, deciding instead to let the caller leave a voice

message. The caller did not leave a message, however,

and Mrs. Doe dialed star (*) 69 to ascertain where the call

had originated. This process revealed that the call had

been placed by someone at the Bureau. A few minutes

later, the phone rang again. Once again, the Does al-

lowed the call to go into their voice mail. This time, Heck,

having returned from vacation, left a voice message, in-

forming the Does that: (1) she had yet to hear from their

attorney; (2) if she did not heard from their attorney with-

in 24 hours, “the Bureau will take steps to . . . protect the

9

children in your home . . . under Chapter 48”; and (3) “This

9

Another Bureau supervisor, Iris Colon Lucio, testified in a

deposition that she considered Heck’s demand that the Does

provide her with the name of their attorney within 24 hours to

(continued...)

16 No. 01-3648

is it! I am not messing around anymore!” (slamming the

phone down). This message upset the Does greatly be-

cause they interpreted it as a threat to remove their chil-

dren from their custody. Shortly after hearing Heck’s mes-

sage, the Does contacted their attorney, who immediately

called Heck to advise that she had been retained by the

Does but needed time to confer with them before an inter-

10

view could be arranged.

That same day, Wichman had a meeting with Sergeant

Belli and Officer Adamczak of the Greendale Police De-

partment, during which he informed the officers that the

Bureau was still in the process of conducting its investiga-

tion of Greendale, and supplied them “with copies of

[Bureau] reports . . . a copy of the [school’s] handbook, the

church directory and some information [the Bureau]

received off of the Internet in regards to Bob Jones Univer-

sity.” Wichman also told the officers that if the Does did

not have their attorney contact the Bureau within the next

24 hours, he and Heck planned to go to their residence

9

(...continued)

be unreasonable, noting that “[i]t’s not something that I would

say is generally—something we would request . . . .”

10

Throughout the remainder of the Christmas season, the Does

allege that they “lived in constant fear that Ms. Heck or one of

her associates would come to [their] home and remove [their]

children,” and that this fear caused them: (1) to maintain “a

continual watch for strange vehicles, believing that Ms. Heck or

an associate might come in an unmarked car or van”; (2) not to

let their children play outside (during this time period) without

one of them present to “guard to [e]nsure no [Bureau] case

worker came for them”; (3) to put up blankets over their win-

dows to prevent Heck or anyone else with the Bureau from

monitoring their activities; and (4) to purchase a caller identifica-

tion system to screen any calls from Bureau caseworkers.

No. 01-3648 17

and physically remove the children from their custody so

11

that they might be interviewed. Finally, Wichman advised

the officers that “due to the large number of juveniles” that

needed to be interviewed, the Bureau would be seeking the

police department’s assistance in the near future.

On January 6, 1999, Wichman, Heck, and Christopher

Partridge, another Bureau caseworker, went to Greendale

for the purpose of interviewing the six children identified

by John Doe Jr. as having been spanked by Bond. Not-

withstanding the degree of resistence they had previously

faced, the caseworkers made no attempt to obtain a court

order before attempting to interview these students. When

the caseworkers arrived at Greendale, Bond refused to al-

low them to interview any of the children without a court

order. Wichman advised Bond that the Bureau casework-

ers had the authority under state law to interview the

children on the school’s premises, and that, if necessary, he

would call the police to force him to comply with their

demand. Bond maintained that he would not allow the

caseworkers to speak with any of the children regardless

of any police involvement. At this point, the caseworkers

exited the building, entered the Bureau van, and began

calling various individuals for instructions on how to

proceed. Heck called Bureau attorney Reinhold to ask

for her advice. Partridge informed his supervisor, Mike

Kemp, of the stalemate. Kemp directed the caseworkers

to call the police for assistance, which Wichman did. After

fifty minutes of waiting outside, Wichman called the po-

11

Christine Hansen testified in a deposition that Wichman’s

stated intention to the police that he would seek to remove

the Doe children from their parents’ custody, if true, would

have been illegal, a drastic step, and inconsistent with Bureau

protocol.

18 No. 01-3648

lice again. Two police officers eventually responded to

the call, but after conferring they all decided to return to

the police station for further deliberations. Upon arriving

at the police station, the caseworkers learned that the

school’s attorney, Michael Dean, had called the police

and requested that the caseworkers be barred from Green-

dale’s property as trespassers.

Unsure of how to proceed, Heck called Reinhold again

and one of the police officers called the district attorney’s

office. It was determined that the caseworkers had the

authority to enter the school for the purpose of conduct-

ing interviews with the children. The caseworkers then

returned to Greendale, this time accompanied by four police

officers. Before re-entering the building, however, the

caseworkers received a call from Kemp, who cautioned

them not to push the matter too far. Once inside, the

caseworkers and police officers were met by Bond and

Dean. The police officers told them that the caseworkers

had a duty to investigate allegations of child abuse, and

that if Bond refused to grant the caseworkers access they

had no problem playing “hardball”—i.e., arrest Bond for

obstruction of justice. Dean advised the police that his

client was taking this position because the children were

in the physical custody of Greendale and the school did

not have the authority to grant the Bureau permission to

speak with the children without parental consent, remark-

ing, “I don’t know why they don’t just get an order from

a judge. If they get the order then we can’t do anything

about it.”

Notwithstanding the threat of arrest, Bond refused to

allow the caseworkers to interview the children without

a court order or parental consent. The police officers and

caseworkers then made several calls to the district attor-

ney’s office and the Bureau to advise their superiors of

No. 01-3648 19

Bond’s refusal to give the caseworkers access to the chil-

dren. After conferring with Bureau supervisor Hergert, the

caseworkers abandoned their efforts to interview the chil-

dren due to the level of resistence they had encountered.

On her way out of the building, Heck told Bond, “This case

is not over yet, believe me.” Additionally, one of the offi-

cers informed Bond and Dean that a shift commander

would be coming to the school, and that there was a dis-

tinct possibility that the police department “would direct

their own investigation, which would include interview-

ing the children at the Academy.” The Does, in response

to the foregoing events, took their children to a friend’s

house later that evening to spend the night, fearing that

someone from the Bureau would come to their home and

attempt to remove their children from their custody. The

next day, Mrs. Doe purchased a cellular phone to en-

able her to keep in constant contact with her husband re-

12

garding the Bureau’s ongoing investigation of their family.

In late February 1999, Bureau supervisor Iris Colon Lucio

telephoned the Does’ attorney, Sheila Smith, to speak with

her about the ongoing investigation. Smith told Lucio that

the Does adamantly denied abusing their children. Lucio

informed Smith that the Bureau would hold the Does li-

able if the school applied corporal punishment to their

son resulting in physical abuse, and instructed Smith to

advise the Does accordingly. On February 28, 1999, short-

ly after this conversation, Lucio sent Smith a follow-up let-

ter advising that the investigation of the Does was being

closed because “[i]n discussing the matter with you, we

12

According to Mrs. Doe, she took a leave of absence from work

from December 17, 1998 through January 19, 1999 because

she “was afraid to be away from her children for any length of

time . . . not knowing what [the Bureau] might do.”

20 No. 01-3648

have been assured that there is no safety, nor service needs

for the . . . family.” The Bureau’s internal documents,

however, indicated that the investigation had been closed

because of the Does’ refusal to cooperate, thus preventing

caseworkers from substantiating abuse. A few months

later, the Bureau ended its investigation of Greendale

altogether; caseworkers never returned to the school and

eventually all of the files relating to the investigation were

closed.

On August 12, 1999, Greendale, John and Jane Doe

(individually and on behalf of their minor son, John Doe Jr.),

and seven other parents (John and Jane Roe 1-7), filed

suit against Heck, Wichman, and Hansen, individually

13

and in their official capacities with the Bureau, pursuant

to 42 U.S.C. § 1983, alleging that the defendants: (1) con-

ducted an unreasonable search of Greendale’s premises

in violation of the Fourth Amendment; (2) illegally seized

John Jr. in violation of the Fourth Amendment; (3) vio-

lated all of the plaintiffs’ rights to familial relations un-

der the Fourteenth Amendment; and (4) violated all of the

plaintiffs’ rights to procedural due process under the

Fourteenth Amendment. The plaintiffs also challenged

the constitutionality, both facially and as applied, of Wis.

Stat. § 48.981(3)(c)1, to the extent this statutory provision

13

To the extent the plaintiffs’ suit against the defendants in their

official capacities with the Bureau seeks retrospective monetary

damages, this action constitutes a suit against the state that is

prohibited by the Eleventh Amendment. Darryl H. v. Coler,

801 F.2d 893, 906-07 (7th Cir. 1986). This aspect of the plain-

tiffs’ suit is, therefore, dismissed for lack of subject matter

jurisdiction. Id. at 907; see also id. at 907 n.13 (noting that

“a question of subject matter jurisdiction . . . may be raised at

any time in the litigation”).

No. 01-3648 21

purportedly provides Bureau caseworkers with the au-

thority to “contact, observe or interview . . . [a] child at

any location without permission from the child’s parent,

guardian or legal custodian if necessary to determine if

the child is in need of protection or services . . . .” Id. In this

respect, the plaintiffs sought injunctive relief from the

enforcement of this aspect of Wis. Stat. § 48.981(3)(c)1,

and requested a declaration that the statutory provision

was unconstitutional. In response, the defendants argued

that none of the actions they took during the Bureau’s

investigation violated the plaintiffs’ constitutional rights,

and, alternatively, that even if their actions were uncon-

stitutional, the constitutional rights at issue in this case

were not clearly established, thereby entitling them to qual-

ified immunity from the plaintiffs’ suit. The defendants

also maintained that § 48.981(3)(c) is constitutional, both

facially and as applied to the plaintiffs. Thereafter, the

parties filed cross motions for summary judgment. The

district court granted the defendants’ motion, concluding

that they were entitled to qualified immunity from the

plaintiffs’ claims. The plaintiffs appeal this decision.

II.

On appeal, the plaintiffs contend that the district court

erred in granting the defendants’ motion for summary

judgment, a decision we review de novo, construing all

facts in the light most favorable to the plaintiffs. Ben’s

Bar, Inc. v. Village of Somerset, 316 F.3d 702, 707 (7th Cir.

2003).

The parties’ principal dispute in this case concerns wheth-

er qualified immunity shields the defendants from any

liability arising out of the plaintiffs’ constitutional claims.

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court

22 No. 01-3648

held that a court’s qualified immunity analysis must pro-

ceed in two steps. Id. at 200. The threshold inquiry is wheth-

er, taken in the light most favorable to the party asserting

the injury, “the facts alleged show the officer’s conduct

violated a constitutional right[.]” Id. at 201. This must be

the initial inquiry. Id. If no constitutional right would have

been violated were the allegations established, there is no

necessity for further inquiries concerning qualified im-

munity. Id. If, on the other hand, “a violation could be

made out on a favorable view of the parties’ submissions,

the next, sequential step is to ask whether the right was

clearly established.” Id. We proceed in this fashion be-

cause this analytical framework “promotes clarity in the

legal standards for official conduct, to the benefit of both

the officers and the general public.” Doyle v. Camelot Care

Centers, Inc., 305 F.3d 603, 616 (7th Cir. 2002). With these

principles in mind, we now consider the merits of the

plaintiffs’ respective claims on appeal.

A. Fourth Amendment Claims

We begin our analysis with Greendale and John Doe

Jr.’s claims that the defendants conducted an illegal search

and seizure on the premises of the school, pursuant to

Wis. Stat. § 48.981(3)(c)1, in violation of the Fourth Amend-

14

ment. The Fourth Amendment, incorporated against

the States by the Fourteenth Amendment, Contreras v. City

of Chicago, 119 F.3d 1286, 1290 (7th Cir. 1997), provides

that “[t]he right of the people to be secure in their persons,

14

A private school, like any other corporation or business,

is entitled to bring a Fourth Amendment challenge for the il-

legal search of its premises. G.M. Leasing Corp. v. United States,

429 U.S. 338, 353 (1977); See v. City of Seattle, 387 U.S. 541, 543

(1967).

No. 01-3648 23

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated . . . .” U.S. Const. amend.

IV. Because the basic purpose of the Fourth Amendment

“is to safeguard the privacy and security of individuals

against arbitrary invasions by governmental officials,”

Camara v. Municipal Court of City and County of San Fran-

cisco, 387 U.S. 523, 528 (1967), the amendment’s prohibition

against unreasonable searches and seizures protects against

warrantless intrusions during civil as well as criminal

investigations by the government. Marshall v. Barlow’s, Inc.,

436 U.S. 307, 312 (1978). Thus, the strictures of the Fourth

Amendment apply to child welfare workers, as well as all

other governmental employees. Brokaw v. Mercer County,

235 F.3d 1000, 1010 n.4 (7th Cir. 2000); Darryl H. v. Coler,

801 F.2d 893, 900 (7th Cir. 1986).

The threshold consideration in a Fourth Amendment

inquiry is whether the governmental conduct in question

constitutes a search or seizure within the meaning of the

amendment’s text. Kyllo v. United States, 533 U.S. 27, 31

(2001); Brokaw, 235 F.3d at 1010. In this case, defendants

Wichman and Heck, with the assistance of the police,

investigated allegations of child abuse on the premises

of Greendale. As part of that investigation, they took

John Doe Jr. into custody to interview him. We think it is

clear that the foregoing actions constitute both a search

and a seizure under the Fourth Amendment.

When the Fourth Amendment was ratified, as now, to

“search” meant “ ‘[t]o look over or through for the pur-

pose of finding something; to explore; to examine by

inspection; as, to search the house for a book; to search the

wood for a thief.’ ” Kyllo, 533 U.S. at 33 n.1 (quoting N.

Webster, An American Dictionary of the English Language 66

(1828) (reprint 6th ed. 1989)). The defendant caseworkers’

investigation on Greendale’s premises easily meets this

definition because the defendants went to the school for

24 No. 01-3648

the specific purpose of gathering information, an activity

that most certainly constitutes a search under the Fourth

Amendment. Kyllo, 533 U.S. at 32 n.1; see also 1 Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amend-

ment § 2.1(a) at 379 (1996) (noting that “[u]nder the tradi-

tional approach, the term ‘search’ is said to imply ‘some

exploratory investigation, or an invasion and quest, a look-

ing for or seeking out’ ”) (citation omitted).

A person has been “seized” within the meaning of the

Fourth Amendment if, in view of all of the circumstances

surrounding the incident, a reasonable person would not

have believed that he was free to leave. United States

v. Mendenhall, 446 U.S. 544, 554 (1980); White v. City of

Markham, 310 F.3d 989, 993 (7th Cir. 2002). Here, the facts

surrounding the defendants’ seizure of John Doe Jr. are not

in dispute. John Jr. was escorted from class by Principal

Bond, the defendant caseworkers, and a uniformed po-

lice officer, into the church’s nursery (which was empty).

He was then questioned by Heck and Wichman, with

the uniformed police officer present, for twenty minutes

about intimate details of his family life. Under these cir-

cumstances, we conclude that John Jr. was “seized” with

the meaning of the Fourth Amendment because no rea-

sonable child would have believed that he was free to

leave the nursery. Brokaw, 235 F.3d at 1010 (holding that

the defendants’ action of taking a child into custody,

without the consent of his parents, for the purpose of

questioning him about allegations of child neglect was

15

a seizure under the Fourth Amendment).

15

See also Roska v. Peterson, 304 F.3d 982, 992 (10th Cir. 2002)

(holding that 12-year-old boy was seized by a social worker

while being removed from his home because he was “not free

(continued...)

No. 01-3648 25

Having concluded that the defendants searched Green-

dale’s premises and seized John Doe Jr., we must now

“evaluate the search or seizure under traditional standards

of reasonableness by assessing, on the one hand, the de-

gree to which it intrudes upon an individual’s privacy

and, on the other, the degree to which it is needed for the

promotion of legitimate governmental interests.” Wyoming

v. Houghton, 526 U.S. 295, 299-300 (1999); see also Brokaw,

235 F.3d at 1010. In doing so, we recognize that al-

though “the underlying command of the Fourth Amend-

ment is always that searches and seizures be reasonable,

what is reasonable depends on the context within which

a search takes place.” New Jersey v. T.L.O., 469 U.S. 325,

337 (1985); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 654 (1995) (noting that “[w]hat expectations are legiti-

mate [under the Fourth Amendment] varies, of course,

with context, depending, for example, upon whether the

individual asserting the privacy interest is at home, at work,

in a car, or in a public park”) (internal citation omitted).

The Supreme Court has explicitly recognized the “dis-

tinction between searches and seizures that take place on

a man’s property—his home or office—and those carried

15

(...continued)

to leave”); Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000)

(holding that baby was seized by a government agency official

during child abuse investigation even though an infant “is

unlikely to have had a ‘belief’ as to whether or not she was

free to leave the Hospital . . . [because her mother] was told in

no uncertain terms that she could not take [her] home from

the Hospital”); Tenenbaum v. Williams, 193 F.3d 581, 602 (2d

Cir. 1999) (holding that 5-year-old girl was seized by a govern-

ment official when she was taken from her school to a hospital

where she was required to remain for several hours before be-

ing examined and returned to her parents).

26 No. 01-3648

out elsewhere,” Coolidge v. New Hampshire, 403 U.S. 443,

474 (1971), holding that “a search or seizure carried out

on . . . [private] premises without a warrant is per se unrea-

sonable, unless the [government] can show that it falls

within one of a carefully defined set of exceptions based

on the presence of ‘exigent circumstances.’ ” Id. at 474-75;

see also Camara, 387 U.S. at 528-29; United States v. Spears,

965 F.2d 262, 271 (7th Cir. 1992).

Moreover, the principle that a warrantless search or

seizure conducted on private property is presumptively

unreasonable applies whether “the government’s motiva-

tion is to investigate violations of criminal laws or breaches

of other statutory or regulatory standards,” Barlow’s, 436

U.S. at 312-313, so long as the claimant had a reasonable

expectation of privacy in the premises on which the search

or seizure occurred. Minnesota v. Carter, 525 U.S. 83, 88

(1998) (holding that the “ ‘capacity to claim the protection

of the Fourth Amendment depends . . . upon whether the

person who claims the protection of the Amendment has

a legitimate expectation of privacy in the invaded place’ ”)

(citation omitted); see also Kyllo, 533 U.S. at 31-33; Siebert

v. Severino, 256 F.3d 648, 654 (7th Cir. 2001).

A reasonable expectation of privacy exists when: (1) the

claimant exhibits an actual (subjective) expectation of

privacy; and (2) the expectation is one that society is

prepared to recognize as reasonable. United States v.

French, 291 F.3d 945, 951 (7th Cir. 2002). Here, there is

no question that the defendants’ search of Greendale and

seizure of John Doe Jr. took place on private property.

The only question then is whether Greendale and John Jr.

had a reasonable expectation of privacy in or within the

school’s premises. We conclude that they did.

Private schools, by their very nature, are controlled

environments that, out of sheer necessity (i.e., for the

No. 01-3648 27

safety and protection of the children entrusted to them)

are not open to the general public. Simpson v. Saroff, 741

F. Supp. 1073, 1078 (S.D.N.Y. 1990); see also Siebert, 256

F.3d at 654 (noting that an enclosed structure is typically

a location for a property owner to engage in private ac-

tivities, which is generally sufficient to place government

agents on notice “to keep out”). Thus, by their very opera-

tion, private schools exhibit a subjective expectation of

16

privacy in their premises. Simpson, 741 F. Supp. at 1078

(holding that private school exhibited a subjective ex-

pectation of privacy in its premises “because it occupied

them on a permanent basis, kept up the premises through

expenditures on improvements, and exercised at all

times the right to exclude others from the premises . . . .”).

And while John Jr. may not have exhibited a subjective

expectation of privacy in Greendale’s premises, we have

held that such a showing is unnecessary when the search

or seizure at issue is of a young child. Darryl H., 801

F.2d at 901 (holding that “[a] child of very tender years

may not exhibit a subjective expectation of privacy in the

same sense as an older child. He is, however, a human

being, entitled to be treated by the state in a manner com-

patible with that human dignity.”). In such cases, it is

more appropriate to consider whether the child’s parents

manifested a subjective expectation of privacy in the prem-

ises within which the search or seizure being challenged

took place. Id. (noting that when a child is searched by the

government for purposes of a child abuse investigation,

“[a]lso at stake . . . are the closely related legitimate expec-

16

Additionally, in this case, Principal Bond and Pastor Hollo-

way clearly expressed the school’s subjective expectation of

privacy in its premises by initially refusing to allow Bureau

caseworkers to interview John Jr., and by refusing to permit

the caseworkers to interview students during their second visit

to the school.

28 No. 01-3648

tations of the parents or other caretakers, protected by the

fourteenth amendment, that their familial relationship will

not be subject to unwarranted state intrusion”). We con-

clude that by enrolling their son in Greendale, and entrust-

ing him to the care of the school’s officials in loco parentis,

Vernonia Sch. Dist., 515 U.S. at 654, the Does manifested

a subjective expectation of privacy in the premises of the

school.

Moreover, these subjective expectations of privacy were

objectively reasonable. First, with respect to Greendale,

“[t]he businessman, like the occupant of a residence, has

a constitutional right to go about his business free from

unreasonable official entries upon his private commercial

property.” See v. City of Seattle, 387 U.S. at 543; cf. Curtis

v. Thompson, 840 F.2d 1291, 1300 (7th Cir. 1988) (noting

that “ ‘[w]ere the authority of government so trifling as to

permit anyone with a complaint to have asked power to do

anything he pleased . . . Churches would be compelled to

welcome into their buildings invaders who came but to scoff

and jeer . . . .’ ”) (citation omitted). Second, although a

child’s privacy interests while attending a private school

may differ from those he has under his own roof, he

unquestionably has a reasonable expectation of privacy in

the premises of the school he attends vis-á-vis government

officials. As the Supreme Court has explained, “[w]hen par-

ents place minor children in private schools for their educa-

tion, the teachers and administrators of those schools

stand in loco parentis over the children entrusted to them.”

Vernonia Sch. Dist., 515 U.S. at 654-55. In our view, there is

no basis for concluding that when a minor child is entrusted

to the care of a private school in loco parentis his reasonable

expectation of privacy, vis-á-vis government officials, dif-

fers in any material respect from that which he would

otherwise expect to receive at home. In both cases, the

child is in an enclosed structure that is not open to the

No. 01-3648 29

general public, and is cared for and looked after by individ-

uals with parental authority. Furthermore, it is entirely rea-

sonable for parents who place their children in private

schools, along with the teachers and administrators of

those schools, to expect that the parents’ express delegation

of parental authority to school officials will be both ac-

knowledged and respected by government actors. Cf. Muller

by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1535

(7th Cir. 1996) (holding that “[t]he in loco parentis doctrine

remains in full force in private schools”). Third, when, as

in this case, the government conducts a warrantless search

of a religious or parochial school, or seizes a minor child

on the premises of such a school without a warrant, these

actions implicate the constitutional rights of the school,

child, and parents under the Free Exercise Clause of the

First Amendment. See Maryland v. Macon, 472 U.S. 463, 468

(1985) (holding that when a government search or seizure

implicates First Amendment rights, the requirements of

the Fourth Amendment must be applied with “scrupulous

exactitude”); Zurcher v. Stanford Daily, 436 U.S. 547, 564

(1978) (same).

Because we conclude that Greendale and John Doe Jr. had

a reasonable expectation of privacy in and within the

school’s premises, the defendants’ warrantless search of

the school and seizure of the child are presumptively

unreasonable, Camara, 387 U.S. at 528-29, and can only be

upheld if either falls within one of the “few specifically

established and well delineated exceptions” to the Fourth

Amendment’s warrant and probable cause requirements,

Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (citations

and internal quotations omitted), e.g., consent, Schneckloth

v. Bustamonte, 412 U.S. 218, 219 (1973), or exigent circum-

stances. United States v. Karo, 468 U.S. 705, 718 (1984). See also

Spears, 965 F.2d at 271. These exceptions, however, are

grudgingly granted because “the privacy interests pro-

30 No. 01-3648

tected by the Fourth Amendment are to be jealously

guarded.” Wilson v. Health & Hosp. Corp. of Marion County,

620 F.2d 1201, 1209 (7th Cir. 1980). In addition to these well

established exceptions, the Supreme Court has also held

that occasionally the government may have “ ‘special needs,

beyond the normal need for law enforcement, [which]

make the warrant and probable cause requirement im-

practicable.’ ” Vernonia Sch. Dist., 515 U.S. at 653 (citation

omitted). In “special needs” cases, a lower standard may be

appropriate, “depend[ing] in part upon whether the bur-

den of obtaining a warrant is likely to frustrate the gov-

ernmental purpose behind the search.” Camara, 387 U.S.

at 533.

On appeal, however, the defendants make no attempt to

argue that their search of Greendale or seizure of John Doe

Jr. falls within any of the foregoing specifically established

and well delineated exceptions, or that the search or sei-

zure was justified by “special needs.” Their failure to do so

speaks volumes about the evidentiary record in this case,

which clearly shows that the defendants’ search of the

school and seizure of the child were not done pursuant to

17

a court order, probable cause, or exigent circumstances.

Instead, the defendants argue, taking their cue from the

17

The record shows that it took the Bureau almost two months

to process the report alleging that M.G. had been abused. More-

over, although the defendants claim that they were concerned

that John Jr.’s parents may have subjected him to abuse by

sending him to a school that used corporal punishment as a

means of disciplining its students, they waited almost a month

before deciding to report that John Jr. was in need of protec-

tive services. Finally, the defendants also waited several days

before referring the other children of the plaintiff parents after

John Jr. identified them as students who received spankings

at the school.

No. 01-3648 31

district court’s opinion, that their search of Greendale

and seizure of John Jr. were reasonable under the guidelines

established by this court in Darryl H. v. Coler, 801 F.2d 893

(7th Cir. 1986), and Landstrom v. Illinois Dept. of Children

& Family Services, 892 F.2d 670 (7th Cir. 1990), both of which

involved challenges to the constitutionality of child wel-

fare caseworkers forcing children suspected of abuse to

disrobe for physical examination on school grounds. 801

F.2d at 896-97; 892 F.2d at 671-72.

In Darryl H., we held that, under the circumstances of

that particular case, we could not “say that the Constitu-

tion requires that a visual inspection of the body of a child

who may have been the victim of child abuse can only

be undertaken when the standards of probable cause or a

warrant are met.” 801 F.2d at 902. Instead, we concluded

that the constitutionality of these inspections should be

evaluated under the reasonableness test of the Fourth

Amendment, id., and reaffirmed that holding in Landstrom.

892 F.2d at 677. The key difference between the searches

at issue in Darryl H. and Landstrom, and the search and

seizure in this case, is that the searches in Darryl H. and

Landstrom took place on public school grounds with the

consent of public school officials. 801 F.2d at 896-97; 892

F.2d at 671-72. We made express mention of this distinc-

tion in Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir.

2000), where we held that the seizure of a child by a gov-

ernment official on private property—there, a home—is

only reasonable if it is: (1) done pursuant to a court order;

(2) supported by probable cause; or (3) justified by exigent

circumstances, meaning that state officers had reason

to believe that life or limb was in immediate jeopardy, id.

at 1010, and cited our decisions in Darryl H. and Landstrom

for the proposition that a lower standard of scrutiny ap-

plies to searches and seizures conducted by the govern-

ment on public school property. Id. at 1011; see also Good

32 No. 01-3648

v. Dauphin County Social Services, 891 F.2d 1087, 1096 (3d

Cir. 1989) (noting that “the strip search in this case came

in the context of a forced entry into a residence in the

middle of the night . . . [and that] the degree of intrusion

on privacy was not all comparable to the far more limited

intrusion in [Darryl H. v.] Coler”). Therefore, it is Brokaw,

not Darryl H. and Landstrom, that controls our decision in

18

this case.

While the defendants are undoubtedly correct in assert-

ing that private schools are subject to reasonable regula-

tion by the state, and that states have a compelling interest

in protecting children from child abuse, the critical ques-

tion in this case “is not whether the public interest jus-

tifies the type of search [or seizure] in question, but wheth-

er the authority to search [or seize] should be evidenced

by a warrant . . . .” Camara, 387 U.S. at 533 (citations omit-

ted) (emphasis added). Thus, although “there may be

circumstances in which the law of warrant and probable

cause . . . does not work effectively in the child removal or

child examination context,” Tenenbaum, 193 F.3d at 604,

e.g., when exigent circumstances are involved, child welfare

caseworkers “can effectively protect children without be-

18

See also Roe v. Texas Dept. of Protective and Regulatory Ser-

vices, 299 F.3d 395, 407-08 (5th Cir. 2002) (holding that a social

worker must demonstrate probable cause and obtain a court

order, obtain parental consent, or act under exigent circum-

stances to justify the visual body cavity search of a juvenile in

the home); Wooley v. City of Baton Rouge, 211 F.3d 913, 925-26

(5th Cir. 2000) (noting that a warrant, probable cause, or a

reasonable belief that a child is in imminent harm is necessary

to justify the seizure of a child from the home under the

Fourth Amendment); J.B. v. Washington County, 127 F.3d 919, 929-

30 (10th Cir. 1997) (applying probable cause standard to re-

moval of child from home).

No. 01-3648 33

ing excused from ‘whenever practicable, obtain[ing] ad-

vance judicial approval of searches and seizures. ’ ” Id. (cita-

tion omitted). Indeed, requiring caseworkers to obtain the

equivalent of a warrant before searching the premises of

a private school ensures that the constitutional interests of

the child, parents, and school, are safeguarded, while

at the same time preserving the state’s compelling interest

in protecting children from being abused. Id. (holding that

“judicial authorization makes a fundamental contribu-

tion to the proper resolution of the tension among the

interests of the child, the parents, and the State”).

Finally, even if the search of Greendale and seizure of

John Doe Jr. were not presumptively unreasonable, the

defendants would fare no better under the “reasonableness”

test outlined in Landstrom and Darryl H. See generally 892

F.2d at 676-77; 801 F.2d at 902-04. In conducting this test,

we do not consider the government’s interest in the ab-

stract (i.e., the state’s general interest in protecting chil-

dren from abuse), but instead evaluate whether, under the

circumstances of a particular case, the government offi-

cials in question had “some definite and articulable evi-

dence giving rise to a reasonable suspicion that a child

has been abused or is in imminent danger of abuse.” Brokaw,

235 F.3d at 1019; see also Wallis v. Spencer, 202 F.3d 1126,

1138 (9th Cir. 2000). As our analysis infra demonstrates,

the defendants’ search of Greendale and seizure of John

Doe Jr. were not supported by such evidence. Given the

foregoing, we conclude that Greendale and John Jr. have

stated cognizable claims against the defendants under the

Fourth Amendment. See Saucier, 533 U.S. at 201 (holding

that “[i]n the course of determining whether a constitu-

tional right was violated on the premises alleged, a court

might find it necessary to set forth principles which will

become the basis for a holding that a right is clearly estab-

lished”).

34 No. 01-3648

Having resolved the threshold question of our inquiry,

we now turn to the second step: whether the defendants,

notwithstanding the foregoing constitutional violations,

are entitled to qualified immunity from Greendale and

John Doe Jr.’s claims. Under the doctrine of qualified

immunity, government officials are “ ‘shielded from liabil-

ity for civil damages insofar as their conduct does not

violate clearly established . . . constitutional rights of which

a reasonable person would have known.’ ” Doyle, 305 F.3d

at 620 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). For a constitutional right to be “clearly established,”

its contours “ ‘must be sufficiently clear that a reasonable

official would understand that what he is doing violates

that right.’ ” Hope v. Pelzer, 122 S.Ct. 2508, 2515 (2002)

(citation omitted). This does not mean that “ ‘an official

action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but

it is to say that in the light of pre-existing law the unlaw-

fulness must be apparent.’ ” Id. (citations omitted). See also

Saucier, 533 U.S. at 206 (noting that qualified immunity

operates “to ensure that before they are subjected to

suit, officers are on notice their conduct is unlawful”).

Thus, a qualified immunity inquiry must be “undertaken

in light of the specific context of the case, not as a broad

general proposition.” Id. at 201. Greendale and John Jr. bear

the burden of establishing the existence of a clearly estab-

lished constitutional right. White, 310 F.3d at 993.

In this case, the defendant caseworkers’ search of Green-

dale’s premises and seizure of John Doe Jr. were done

pursuant to Wis. Stat. § 48.981(3)(c)1, which provides that

a Bureau caseworker may interview a child suspected

of abuse “at any location”—other than the child’s home—

“without permission from the child’s parent, guardian or

legal custodian if necessary to determine if the child is in

need of protection of services[.]” Id. As discussed infra,

No. 01-3648 35

to the extent § 48.981(3)(c)1 authorizes government officials

to conduct an investigation of child abuse on private prop-

erty without a warrant or probable cause, consent, or exi-

gent circumstances, the statute is unconstitutional. At

this stage of our analysis, however, we are only required

to determine whether a reasonable Bureau caseworker

should have known this to be the case.

The plaintiffs contend that a reasonable caseworker

should have known that the search of Greendale’s premises

and the seizure of John Doe Jr. were unlawful because the

Supreme Court has repeatedly held that, subject to a few

specifically established and well-delineated exceptions,

a warrantless search or seizure on private property is

unreasonable under the Fourth Amendment. If the case-

workers had acted in the absence of statutory authority,

this argument might have merit. The Supreme Court has

held, however, that “[t]he enactment of a law forecloses

speculation by enforcement officers concerning its consti-

tutionality—with the possible exception of a law so grossly

and flagrantly unconstitutional that any person of reason-

able prudence would be bound to see its flaws.” Michigan

v. DeFillippo, 443 U.S. 31, 38 (1979); see also Woods v. City

of Michigan City, Indiana, 940 F.2d 275, 280-81 (7th Cir. 1991);

id. at 282 (Will, J., concurring).

Although we conclude that § 48.981(3)(c)1 is unconsti-

tutional as applied to Greendale and John Doe Jr., we are

not prepared to hold that this statutory subsection is so

patently unconstitutional as to deny the defendants quali-

fied immunity from their claims. First, prior to this litiga-

tion the constitutionality of § 48.981(3)(c)1 had never been

challenged. DeFilippo, 443 U.S. at 37 (noting, in the con-

text of qualified immunity analysis, that “there was no

controlling precedent that this ordinance was or was not

constitutional . . . .”); Benson v. Allphin, 786 F.2d 268, 278 (7th

36 No. 01-3648

Cir. 1986) (noting that because the statute at issue had

“never been challenged, it is difficult to see how the defen-

dants could conclude that they were violating the clearly

established First Amendment rights of the plaintiff . . .”).

Second, although certainly not dispositive of the issue, we

find it relevant that there is, to our knowledge, no re-

ported decision (state or federal) addressing the precise is-

sues before us. Finally, we think it would be especially

draconian to expect a reasonable caseworker to conclude

that § 48.981(3)(c)1 was “grossly and flagrantly unconstitu-

tional” when, at the time the search and seizure took place,

the Wisconsin Attorney General had issued a formal

opinion on the legality of the statute, in which he noted

that “under this broad grant of authority, the county may,

in its discretion, interview the child at any location, including

the child’s school.” 79 Wis. Op. Att’y Gen. 49 (1990) (empha-

sis added); see also V-1 Oil Co. v. State of Wyoming Dept. of

Envtl. Quality, 902 F.2d 1482, 1489 (10th Cir. 1990) (holding

that “an officer who conducts a warrantless search on the

same day he was advised by fully informed, high-ranking

government attorneys that a particular statute, which had

not yet been tested in any court, lawfully authorized

that particular search . . . should not be expected to have

known that the search was unconstitutional”).

We, therefore, conclude that at the time the defendant

caseworkers conducted their search of Greendale and

seized John Doe Jr., a “reasonable” Bureau caseworker

would not have understood his actions, vis-á-vis

§ 48.981(3)(c)1, to be unconstitutional under the Fourth

19

Amendment. Hope, 122 S.Ct. at 2515 (citation omitted)

19

We reach this conclusion even though one of the case work-

ers misrepresented to a police officer that there were exigent

(continued...)

No. 01-3648 37

(holding “[f]or a constitutional right to be clearly estab-

lished, its contours must be sufficiently clear that a rea-

sonable official would understand that what he is doing

violates that right”) (internal quotes and citation omitted).

At this juncture, however, we now make it clear that it

is patently unconstitutional for governmental officials to

search the premises of a private or parochial school

and/or seize a child attending that school without a warrant

or court order, probable cause, consent, or exigent circum-

20

stances. Brokaw, 235 F.3d at 1010.

19

(...continued)

circumstances in order to gain entry into the school. The case-

worker’s subjective bad faith has no bearing on whether, under

an “objective reasonableness” test, a “reasonable” caseworker

would be on notice that § 48.981(3)(c)1 was unconstitutional

as applied to Greendale—i.e., that, notwithstanding the statute,

the Fourth Amendment required the caseworker to obtain a

warrant prior to conducting a search of the premises. See Wollin

v. Gondert, 192 F.3d 616, 622 (7th Cir. 1999) (holding that “ ‘a

qualified immunity analysis entails a purely objective inquiry

to determine whether at the time of the alleged illegal act, the

right asserted by the plaintiff was clearly established in the

particular factual context presented’ ”) (citations omitted); Harrell

v. Cook, 169 F.3d 428, 431 (7th Cir. 1999) (noting that “[q]ualified

immunity depends on the objective legal reasonableness of the

defendants’ actions, not on their subjective motivations”).

20

As previously noted, the defendants do not argue, and we

therefore do not address, the propriety of a generalized “special

needs” exception to the Fourth Amendment’s warrant and

probable cause requirements for child abuse investigations

conducted on private property. Nevertheless, given that the

exigent circumstances exception already gives the State the ability

to take immediate action to ensure the physical safety of a

child suspected of abuse who is located on private property,

(continued...)

38 No. 01-3648

B. Familial Relations Claims

The plaintiffs—Greendale, John Doe Jr., John and Jane

Doe, and seven other sets of parents (John and Jane Roe 1-

7)—also allege that the manner in which the defendants

conducted their investigation violated their constitutional

right to familial relations under the Fourteenth Amend-

ment’s Due Process Clause. The Fourteenth Amendment

to the United States Constitution provides that no State

may “deprive any person of life, liberty, or property,

without due process of law . . . .” U.S. Const. XIV, § 1. The

Supreme Court has long recognized, as a component of

“substantive” due process, that parents have a liberty

interest in familial relations, which includes the right to

“establish a home and bring up children” and “to control

the education of their own.” Meyer v. Nebraska, 262 U.S.

390, 399 (1923); see also Troxel v. Granville, 530 U.S. 57, 65

(2000) (noting that the right to familial relations is “the

oldest of the fundamental liberty interests recognized”);

20

(...continued)

there is no apparent justification for carving out a “special needs”

exception for child abuse investigations in this context. See

Ferguson v. City of Charleston, 532 U.S. 67, 84 (2001) (noting that

if the “broad[ ] social purpose or objective” of the state were

the predominate consideration in a Fourth Amendment in-

quiry, “virtually any nonconsensual suspicionless search could

be immunized under the special needs doctrine by defining

the search solely in terms of its ultimate, rather than immedi-

ate, purpose”); Roe, 299 F.3d at 403-05 (declining to apply the

“special needs” balancing test to evaluate the constitutionality of

a social worker’s visual search of a child’s body cavities in

the home, conducted without a warrant, probable cause, or

exigent circumstances, because the Supreme Court has held

that “citizens have an especially strong expectation of privacy

in their homes”).

No. 01-3648 39

21

Brokaw, 235 F.3d at 1018 (same). As we emphasized in

Brokaw, “the right of a man and woman to marry, and to

bear and raise their children is the most fundamental of

all rights—the foundation of not just this country, but of

22

all civilization.” 235 F.3d at 1018; see also Smith v. Or-

ganization of Foster Families For Equality and Reform, 431

U.S. 816, 845 (1977) (noting that “the liberty interest in

family privacy has its source . . . not in state law, but in

intrinsic human rights, as they have been understood in

‘this Nation’s history and tradition’ ”) (citation omitted);

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). Equally funda-

mental is the right of a child to be raised and nurtured

23

by his parents. Santosky, 455 U.S. at 760 (noting that “until

21

See also Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925);

Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Stanley v. Illinois,

405 U.S. 645, 651 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232

(1972); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Parham v. J.R.,

442 U.S. 584, 602 (1979); Santosky v. Kramer, 455 U.S. 745, 753

(1982).

22

The integrity of the family unit has also found protection in

the Ninth Amendment, Stanley, 405 U.S. at 651, and the Equal

Protection Clause of the Fourteenth Amendment. Id.

23

John Doe Jr. joins this claim to assert his related right to fa-

milial integrity. Brokaw, 235 F.3d at 1018. To the extent John Jr.’s

familial relations claim is premised on his physical seizure at

Greendale, however, it cannot succeed. The Supreme Court

has made it abundantly clear that substantive due process

may not be called upon when a specific constitutional provision

(here, the Fourth Amendment) protects the right allegedly

infringed upon. United States v. Lanier, 520 U.S. 259, 272 n.7

(1997); Brokaw, 235 F.3d at 1017. In other words, if a plaintiff’s

sole purpose in bringing a familial relations claim is to recover

damages for a physical seizure, then that claim is more appro-

(continued...)

40 No. 01-3648

the state proves parental unfitness, the child and his par-

ents share a vital interest in preventing erroneous termina-

tion of the natural relationship”) (emphasis added); Brokaw,

235 F.3d at 1018 (same). Finally, we note that in Pierce

v. Soc’y of Sisters, 268 U.S. 510 (1924), the Supreme Court

held that private schools have the right to bring claims

against the state for arbitrarily interfering with their pa-

trons’ (i.e., parents’ and students’) liberty interest in fam-

24

ilial relations. Id. at 534-36; see also Darryl H., 801 F.2d at

23

(...continued)

priately analyzed under the Fourth Amendment. Graham v.

Connor, 490 U.S. 386, 394 (1989) (holding that “[b]ecause the

Fourth Amendment provides an explicit textual source of

constitutional protection against . . . physically intrusive govern-

mental conduct, that Amendment, not the more generalized

notion of ‘substantive due process,’ must be the guide for

analyzing these claims”). On the other hand, if, as here, a fa-

milial relations claim specifically alleges that the government’s

physical seizure coincided with other conduct amounting to

an interference with the parent-child relationship (e.g., cus-

todial interview of child by government officials without the

consent of his parents and without reasonable suspicion that

parents were abusing the child or that the child was in im-

minent danger of abuse), that allegation of harm constitutes a

separate and distinct violation of a separate fundamental con-

stitutional right and both claims may therefore be maintained.

Brokaw, 235 F.3d at 1018-19.

24

In Pierce, the Supreme Court explained the basis of the pri-

vate schools’ standing to bring familial relations claims as fol-

lows:

Appellees are corporations, and therefore, it is said, they

cannot claim for themselves the liberty [in familial relations]

which the Fourteenth Amendment guarantees. Accepted

in the proper sense, this is true. But they have business

(continued...)

No. 01-3648 41

901 (noting that “caretakers” of children have derivative

parental privacy interests under the Fourteenth Amendment

in being free from “unwarranted state intrusion”).

Despite the sweeping language used by the Supreme

Court in describing the “fundamental” constitutional liberty

interest parents have “in the care, custody, and control of

their children,” Troxel, 530 U.S. at 65, the appropriate

standard of review for claims alleging a violation of this

interest is less than clear. It is well established that when a

fundamental constitutional right is at stake, courts are

to employ the exacting strict scrutiny test, Clark v. Jeter,

486 U.S. 456, 461 (1988). In Troxel v. Granville, however, a

plurality of the Supreme Court—Chief Justice Rehnquist

24

(...continued)

and property for which they claim protection. These are

threatened with destruction through the unwarranted com-

pulsion which appellants are exercising over present

and prospective patrons of their schools. And this court

has gone very far to protect against loss threatened by such

action . . . . Generally, it is entirely true . . . that no person

in any business has such an interest in possible customers

as to enable him to restrain exercise of proper power of

the state upon the ground that he will be deprived of

patronage. But the [appellees] . . . are not [seeking to re-

strain] . . . the exercise of any proper power . . . . [only]

protection against arbitrary, unreasonable, and unlawful

interference with their patrons and the consequent destruc-

tion of their business and property. Their interest is clear

and immediate . . . .

Id. at 535-36.

Like the private schools in Pierce, Greendale has an interest

in operating its business free from unreasonable governmen-

tal interference with the relationships of families who choose

to enroll their children in its school.

42 No. 01-3648

and Justices O’Connor, Ginsburg, and Breyer—used a

“combination of factors” test to hold that a state’s visitation

statute, as applied, unconstitutionally infringed on parents’

25

fundamental right to rear their children. 530 U.S. at 72-73.

In making this determination, the plurality emphasized

that “there is a [constitutional] presumption that fit par-

ents act in the best interests of their children,” id. at 68,

and “[a]ccordingly, so long as a parent adequately cares

for his or her children (i.e., is fit), there will normally be

no reason for the State to inject itself into the private

realm of the family to further question the ability of that

parent to make the best decisions concerning the rearing

of that parent’s children.” Id. at 68-69. The Troxel plurality

declined to define “the precise scope of the parental due

process right in the visitation context,” id. at 73, noting

that “constitutional protections in this area are best ‘elab-

orated with care.’ ” Id. (quoting Justice Kennedy’s dissent,

id. at 101). Justice Thomas concurred in the judgment of

the Court, noting “I agree with the plurality that this Court’s

recognition of a fundamental right to direct the upbring-

ing of their children resolves this case . . . . The opinions

of the plurality, Justice Kennedy, and Justice Souter recog-

nize such a right, but curiously none of them articulates

the appropriate standard of review. I would apply strict

scrutiny to infringements of fundamental rights.” Id. at 80.

Thus, after Troxel, it is not entirely clear what level of

scrutiny is to be applied in cases alleging a violation of the

fundamental constitutional right to familial relations.

What is evident, however, is that courts are to use some

25

The statute at issue in Troxel permitted “any person” to peti-

tion a state court for visitation rights “at any time,” and autho-

rized the court to grant such rights whenever “visitation

may serve the best interest of the child.” 530 U.S. at 60.

No. 01-3648 43

form of heightened scrutiny in analyzing these claims. Id.

at 65 (noting that the Due Process Clause of the Fourteenth

Amendment includes a substantive component that ‘pro-

vides heightened protection against governmental inter-

ference with certain fundamental rights and liberty inter-

ests’ ”); Brokaw, 235 F.3d at 1018 (same).

The right to familial relations is not, however, absolute.

Berman v. Young, 291 F.3d 976, 983 (7th Cir. 2002); Brokaw,

235 F.3d at 1019. The liberty interest in familial privacy and

integrity is “ ‘limited by the compelling governmental

interest in the protection of children particularly where the

children need to be protected from their own parents,’ ”

Brokaw, 235 F.3d at 1019 (citation omitted), and does not

include the right to be free from child abuse investiga-

tions. Brown v. Newberger, 291 F.3d 89, 94 (1st Cir. 2002);

Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993). Nevertheless,

it is necessary for both government officials and the courts

to “be sensitive to the fact that society’s interest in the

protection of children is . . . multifaceted, composed not

only with concerns about the safety and welfare of chil-

dren from the community’s point of view, but also with the

child’s psychological well-being, autonomy, and relation-

ship to the family or caretaker setting.” Frantz v. Lytle, 997

F.2d 784, 792-93 (10th Cir. 1993); see also Tenenbaum, 193 F.3d

at 595.

Therefore, when analyzing a familial relations claim,

a “balance must be reached between the fundamental right

to the family unit and the state’s interest in protecting

children from abuse . . . .” Brokaw, 235 F.3d at 1019. In

weighing these competing interests, we do so under the

same reasonableness test used to evaluate Fourth Amend-

ment claims, id.; Darryl H., 801 F.2d 901-02 n.7, under which

we are required to consider: (1) the nature of the privacy

interest upon which the action taken by the State intrudes;

44 No. 01-3648

(2) the character of the intrusion that is complained of;

(3) the nature and immediacy of the governmental concern

at issue; and (4) the efficacy of the means employed by the

government for meeting this concern. Vernonia Sch. Dist.,

515 U.S. at 654-60; Joy v. Penn-Harris-Madison Sch. Corp.,

212 F.3d 1052, 1058-59 (7th Cir. 2000). This analytical

framework allows courts to determine whether the gov-

ernmental action taken was “justified at its inception,”

Darryl H., 801 F.2d at 903, and “reasonably related in scope

to the circumstances which [allegedly] justified the interfer-

ence in the first place.” Id. Thus, although child welfare

caseworkers may investigate allegations of child abuse

without violating parents’ constitutional right to familial

relations, they may not do so arbitrarily. Tenenbaum, 193

F.3d at 600; Croft v. Westmoreland County Children and Youth

Services, 103 F.3d 1123, 1126 (3d Cir. 1997).

On appeal, the plaintiffs argue that the defendants

unreasonably interfered with their right to familial rela-

tions by: (1) conducting a custodial interview of John Doe

Jr. without notifying or obtaining the consent of his par-

26

ents; (2) targeting the plaintiff parents as child abusers;

and (3) causing the plaintiff parents to fear that their chil-

dren would be removed from their custody, without any

26

The defendants may have also violated the “parental” rights of

Greendale, exercised by the school’s officials in loco parentis, by

interviewing John Jr. on school grounds without its consent. We

decline to address this issue, however, because the allegation

of abuse leveled against Principal Bond (of M.G.) makes this a

far closer question, and because, notwithstanding any direct

claim it might have, Greendale also has a derivative claim

against the defendants for their failure to notify and obtain

consent from the Does, in the absence of any reason to sus-

pect them of child abuse, before interviewing John Jr. Pierce,

268 U.S. at 534-36; Darryl H., 801 F.2d at 901.

No. 01-3648 45

evidence giving rise to a reasonable suspicion that the

plaintiff parents were abusing their children or that the

27

children were in imminent danger of abuse.

Having already considered the nature of the privacy

interests upon which the plaintiffs claim the defendants

have intruded, and the character of the intrusion com-

plained of, we now turn to the third and fourth prongs

of the familial relations balancing test, the nature and

immediacy of the governmental concern at issue and the

efficacy of the means employed by the defendants for

meeting this concern. As a threshold matter, these inquires

must be considered in tandem to determine whether the

governmental actions challenged were based on “some

definite and articulable evidence giving rise to a reason-

able suspicion that a child ha[d] been abused or [was] in

imminent danger of abuse.” Brokaw, 235 F.3d at 1019; see

also Croft, 103 F.3d at 1126 (same). If not, neither the state

nor its officials have any interest whatsoever “in protect-

ing children from their parents,” and no further inquiry

(i.e., balancing of interests) is necessary. Id.

In assessing the reasonableness of the defendants’ actions

in this case, we begin with the constitutional presump-

tion that “fit parents act in the best interests of their chil-

dren,” Troxel, 530 U.S. at 68, and stress that unless govern-

ment officials have evidence calling into question the fit-

ness of a parent, there is “no reason for the State to inject

itself into the private realm of the family to further ques-

tion the ability of that parent to make the best decisions

27

The plaintiffs also allege that the defendants’ “disruption of

their children’s education at Greendale” also violated their

right to familial relations. They failed to develop this argu-

ment on appeal, however, and thus have waived it. Martin

v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 706 n.4 (7th Cir. 2002).

46 No. 01-3648

concerning the rearing of that parent’s children.” Id. at 68-

69. The Bureau’s own Investigation Standards take this

presumption into account by providing that “[w]hen a

child has been [allegedly] maltreated by an individual

outside the family, [caseworkers] should act as collabora-

tors with and consultants to the parents[,] [because] [p]ar-

ents are the best resource for meeting children’s needs.”

The Bureau also has an “interview protocol,” which re-

quires caseworkers to begin their investigation by contact-

ing the parents of the child allegedly abused, “[u]nless

there is information suggesting that parental action or

inaction contributed to the circumstances of the maltreat-

ment or that the parents’ reaction to the incident has been

detrimental to the child . . . .”

Here, the defendants not only failed to presume that the

plaintiff parents would act in the best interest of their

children, they assumed the exact opposite, that the par-

ents might be complicit in any abuse that may have been

meted out by Principal Bond because Greendale’s par-

ent/student handbook specified the use of a “swat” as a

method of discipline at the school. Indeed, this is the

only reason given by the defendants in support of their

claim that it was reasonable for them to interview John Jr.

without notifying or obtaining the consent of his parents

and to target the plaintiff parents as child abusers (i.e.,

open files on them and interview, or attempt to interview,

28

their children without their consent). The defendants took

28

Defendant Wichman believed that it was appropriate to

interview John Doe Jr. without notifying or obtaining the con-

sent of his parents because he “was concerned about the young

ages of the children who were subject to this type of physical

discipline . . . [and because] the parent/student handbook

(continued...)

No. 01-3648 47

these actions despite the fact that there was no evidence

that: (1) the plaintiff parents were aware that the Bureau

was investigating Bond for abusing a former student; (2)

any of the plaintiff parents’ children had ever been injured

as a result of a spanking administered by Bond; or (3) the

plaintiff parents had ever mentally or physically abused

their children.

Given these facts it is apparent that the defendants

treated corporal punishment as child abuse per se. By doing

so, the defendants not only disregarded the constitutional

presumption “that fit parents act in the best interests of

their children,” Troxel, 530 U.S. at 68, they also ignored the

Bureau’s own Investigation Standards, which emphasize

that “[c]orporal punishment . . . does not, in itself, consti-

tute a report of child physical abuse.” According to these

standards, “[r]eports of physical abuse must suggest that

a child has been or may have been physically injured by

the act of the teacher or other school employee.”

Furthermore, although the Supreme Court has not “set

out exact metes and bounds to the protected interest of a

parent in the relationship with his child,” Troxel, 530 U.S.

at 78 (Souter, J., concurring), the fundamental right of

28

(...continued)

specified this type of punishment was used, and that the par-

ents may be aware of this method of physical discipline and

were not protecting their children.” Based on her review of

Greendale’s parent/student handbook and Wichman’s reports

concerning M.G., defendant Hansen “decided that further

investigation into the circumstances of [John Jr.] who was

reported [by M.G.] to have been swatted was in order.” Hansen

was “concerned after reviewing the [school’s parent/student]

[h]andbook that parents of Greendale Baptist Academy chil-

dren might be failing to protect their children from possible

abuse at [the school].”

48 No. 01-3648

parents to direct the upbringing of their children necessarily

includes the right to discipline them. Meyer, 262 U.S. at

399 (holding that the “liberty” guaranteed by the Four-

teenth Amendment “denotes . . . the right of the individual

to . . . establish a home and bring up children . . . and . . .

enjoy those privileges long recognized at common law

as essential to the orderly pursuit of happiness by free

29

men”).

Additionally, the fundamental right of parents to disci-

pline their children includes the right to delegate that

right to private school administrators. As previously

noted, when parents place minor children in private

schools for their education, “the teachers and administra-

tors of those schools stand in loco parentis over the chil-

dren entrusted to them.” Vernonia Sch. Dist., 515 U.S. 646,

654 (1995). This is because a parent “may . . . delegate part

of his parental authority, during his life, to the tutor or

schoolmaster of his child; who is then in loco parentis,

and has such a portion of the power of the parent commit-

ted to his charge, viz. that of restraint and correction, as

may be necessary to answer the purposes for which he

is employed.” Id. at 655 (quoting 1 William Blackstone,

Blackstone’s Commentaries on the Laws of England 441

(1769)) (emphasis added).

And while it is not our place to enter the longstanding

fray over the appropriateness of corporal punishment, we

recognize, as the Supreme Court has, that the view that

29

See 3 William Blackstone, Blackstone’s Commentaries on the

Laws of England 120 (1765) (noting the legality of parents and

teachers giving moderate physical “correction” to the children

entrusted to their care); 2 James Kent, Commentaries on Amer-

ican Law 169 (1826) (noting that parents have “a right to the

exercise of such discipline, as may be requisite for the dis-

charge of their sacred trust”).

No. 01-3648 49

“corporal punishment serves important educational inter-

ests” is deeply rooted in this republic’s history. Ingraham

v. Wright, 430 U.S. 651, 681 (1977). We also acknowledge

that people of many faiths, and perhaps some of no faith

at all, genuinely believe in the truth of the oft-recited

phrase: “Spare the rod, and spoil the child.” John Bartlett,

Bartlett’s Familiar Quotations 263:21 (Justin Kaplan ed., 16th

ed. 1992) (phrase attributed to a poem by Samuel Butler

entitled “Hudibras”).

However, no matter one’s view of corporal punishment,

the plaintiff parents’ liberty interest in directing the up-

bringing and education of their children includes the

right to discipline them by using reasonable, nonexcessive

corporal punishment, and to delegate that parental author-

30

ity to private school officials. See Meyer, 262 U.S. at 399;

Ingraham, 430 U.S. at 661 (noting that at common law, “a

single principle has governed the use of corporal punish-

ment since before the American Revolution: Teachers

may impose reasonable but not excessive force to dis-

31

cipline a child”).

30

We also recognize that when parents decide to send their

children to a religious or parochial school they oftentimes do

so as an “exercise” of their religious beliefs. See Prince v. Massa-

chusetts, 321 U.S. 158, 165 (1944) (noting “[t]he rights . . . of

parents to give [their children] religious training and to encour-

age them in the practice of religious belief . . . .”); Grove v. Mead

Sch. Dist. No. 354, 753 F.2d 1528, 1533 (9th Cir. 1985) (holding

“[t]he free exercise clause recognizes the right of every person

to choose among types of religious training and observance,

free of state compulsion”).

31

In Ingraham, the Supreme Court noted that:

Blackstone catalogued among the “absolute rights of indi-

viduals” the right “to security from the corporal insults of

(continued...)

50 No. 01-3648

In making this determination, we are by no means

suggesting that the right of parents to discipline their

children is absolute or that parents are immune from being

investigated for child abuse. Brokaw, 235 F.3d at 1019

(holding that “the constitutional right to familial integrity

is not absolute”); Croft, 103 F.3d at 1125 (noting that “[t]he

right to familial integrity . . . does not include a right to

remain free from child abuse investigations”). The right

of parents to discipline their children does not give them

a license to abuse them. It does, however, preclude state

officials from interfering with the right of parents to physi-

cally discipline their children or to delegate the authority to

do so to private school officials, unless there is evidence

that the discipline being administered is patently unreason-

32

able or excessive.

31

(...continued)

menaces, assaults, beating, and wounding,” 1 W. Blackstone,

Commentaries 134, but he did not regard it a “corporal

insult” for a teacher to inflict “moderate correction” on a

child in his care. To the extent that force was “necessary

to answer the purposes for which (the teacher) is employed,”

Blackstone viewed it as “justifiable or lawful.”Id. at 453; 3

id. at 120. This basic doctrine has not changed.

430 U.S. at 661 (emphasis added).

32

In fact, we have held that unless there is evidence that the

physical contact or discipline in question was severe or exces-

sive, even “a single hitting of a child” will not give rise to a rea-

sonable suspicion of child abuse because:

[W]ere that the case, nearly any practitioner or case worker

who has ever witnessed a slapping of a child would be

under a legal duty to report the occurrence to the desig-

nated agency—and every parent who ever slapped or

spanked a child would face the possibility of losing custody

(continued...)

No. 01-3648 51

Here, because the defendants had no evidence giving rise

to a reasonable suspicion that the plaintiff parents were

abusing their children, or that they were complicit in any

such abuse, the defendants violated the plaintiffs’ right

to familial relations by conducting a custodial interview

of John Doe Jr. without notifying or obtaining the consent

of his parents and by targeting the plaintiff parents as

child abusers. See Wallis, 202 F.3d at 1138 (holding that

government officials “cannot seize children suspected of

being abused or neglected unless reasonable avenues of

investigation are first pursued . . . .”); Croft, 103 F.3d at 1127

(holding that allegations of neglect were insufficient, as

a matter of law, to establish that caseworker had reason-

able basis to suspect that a child was in imminent danger

of abuse).

Finally, Mr. and Mrs. John Doe and John Jr. allege that

the defendants violated their right to familial relations

by threatening to remove the Doe children from their

33

parents’ custody. In support of this claim, the Does point

to the message defendant Heck left in their voice mail on

December 28, 1998, stating that if she had not heard from

the Does’ attorney within 24 hours “the Bureau will take

steps to . . . protect the children in your home . . . under

Chapter 48” and that she was “not messing around any-

32

(...continued)

of the child . . . . While one instance of child-hitting may

raise a red flag, it does not immediately become a “suspi-

cion” of child abuse.

Lewis v. Anderson, 308 F.3d 768, 774 (7th Cir. 2002), cert. denied,

Lewis v. Stolle, ___S. Ct. ___, 2003 WL 256933 (March 10, 2003).

33

There is nothing in the record to support the other plain-

tiff parents’ assertions that the defendants threatened to remove

their children from their custody.

52 No. 01-3648

more!” The Does also note that on the same day this

threat was made, defendant Wichman had a meeting with

Sergeant Belli and Officer Adamczak of the Greendale

Police Department, during which he advised them that

if the Does did not have their attorney contact the Bu-

reau within the next 24 hours, he and Heck planned to go

to their residence and physically remove the children

from their custody.

We conclude that the defendants’ threat to remove John

Jr. and his sister from the custody of their parents vio-

lated the Does’ right to familial relations, which includes

a liberty interest in the maintenance of the family unit.

Stanley, 405 at 651; Duchesne v. Sugarman, 566 F.2d 817, 825

(2d Cir. 1977). This protection is especially important where,

as here, “we are concerned with the most essential and

basic aspect of familial privacy—the right of the family

to remain together without the coercive interference of

the awesome power of the state.” Duchesne, 566 F.2d at

825. The interest being protected is not only that of the

“parent in the ‘companionship, care, custody and manage-

ment of his or her children,’ [but also] of the children in

not being dislocated from the ‘emotional attachments

that derive from the intimacy of daily association,’ with the

parent.” Id. (citations omitted). Although it is true the

defendants did not make good on their threat, the threat

alone implicates the Does’ liberty interest in familial

relations. Sundbye v. Ogunleye, 3 F. Supp. 2d 254, 262-64

(E.D.N.Y. 1998). Moreover, in this case, the defendants’

threat to remove the Does’ children from their custody

is sufficient, in and of itself, to support the Does’ claims

because the defendants had no reason whatsoever to sus-

pect that Mr. and Mrs. Doe were abusing their children.

See, e.g., Miller v. City of Philadelphia, 174 F.3d 368, 376 (3d

Cir. 1999) (holding that when a social worker “threaten[s]

to remove a child from the home if the father himself

No. 01-3648 53

d[oes] not leave . . . the social worker effectively remove[s]

the child from the parents’ custody”); Croft, 103 F.3d at 1124-

27 (holding that right to familial relations was violated

when child welfare caseworker gave a father “an ultima-

tum . . . [that] unless he left his home and separated himself

from his daughter until the investigation was complete,

she would take [his daughter] physically from the home . . .

and place her in foster care”). See also Brokaw, 235 F.3d

at 1019 (holding that “a state has no interest in protect-

ing children from their parents unless it has some definite

and articulable evidence giving rise to a reasonable suspi-

cion that a child has been abused or is in imminent danger

of abuse”).

We recognize that child welfare caseworkers are often

called upon to make difficult decisions without the bene-

fit of extended deliberation. And there is, perhaps, no

more worthy object of the public’s concern than prevent-

ing the most vulnerable members of society, children of

tender years, from being physically abused. Darryl H., 801

F.2d at 902. This unquestionably compelling state interest,

however, may not be used as a pretense for arbitrary gov-

ernmental intrusion into the private affairs of its citizens.

Indeed, in many cases, parents send their children to private

schools because they fundamentally disagree with the

manner in which the government chooses to operate its

public school system. Furthermore, some parents enroll

their children in religious or parochial schools so that they

will be educated in an environment that reinforces cer-

tain religious beliefs and values. These are important

constitutional interests (i.e., right to familial relations and

free exercise of religion) that should not be interfered with

by government officials unless there is a compelling rea-

son for doing so. See Meyer, 262 U.S. at 399 (noting right

of parents “to control the education of their own”); Norwood

v. Harrison, 413 U.S. 455, 461 (1973) (noting that “a state’s

54 No. 01-3648

role in the education of its citizens must yield to the right

of parents to provide an equivalent education for their

children in a privately operated school of the parents’

choice”); Committee for Pub. Educ. and Religious Liberty v.

Nyquist, 413 U.S. 756, 788 (1973) (holding that “a state law

interfering with a parent’s right to have his child educated

in a sectarian school would run afoul of the Free Exercise

Clause”).

Although there are undoubtedly cases where it is difficult

to weigh a state’s interest in investigating an allegation of

child abuse against a parent or child’s right to familial

relations, this is not one of them. Here, the defendants

had no basis to suspect the plaintiff parents of child abuse,

and thus had no reason to interfere with their familial

relationships in the manner described herein. We, there-

fore, conclude that the plaintiffs have adequately stated

claims against the defendants for violating their right to

familial relations.

The defendants are, nevertheless, entitled to qualified

immunity from the plaintiffs’ familial relations claims. As

previously noted, the plaintiffs’ claims proceed on three

separate and distinct grounds: (1) the defendants’ custodial

interrogation of John Jr. without notifying or obtaining

the consent of his parents; (2) the defendants’ investiga-

tion of the plaintiff parents for child maltreatment because

they authorized private school officials to use corporal

punishment as a means of disciplining their children; and

(3) the defendants’ threat to remove John Jr. and his

sister from their parents’ custody. As to the first ground,

the defendants are entitled to qualified immunity be-

cause a reasonable caseworker would have believed that

48.981(3)(c)1 gave him the authority to question John Jr. at

school without notifying or obtaining the consent of his

parents. The defendants are also entitled to qualified im-

No. 01-3648 55

munity on the second ground; because, although the

plaintiff parents’ right to physically discipline their chil-

dren, or to delegate that right to private school officials,

could have been gleaned from a close reading of Supreme

Court precedent, we are not prepared to hold that the

right was clearly established so as to have placed the

defendants on notice, at the time of their investigation,

that treating corporal punishment as per se child abuse

violated the plaintiffs’ right to familial relations. Sweaney

v. Ada County, Idaho, 119 F.3d 1385, 1389 (9th Cir. 1997)

(noting that “[t]he fact that a court could interpret [Supreme

Court precedent] broadly to hold that a parent has a

constitutional right to [spank his] child . . . does not demon-

strate that this protection is clearly established . . . . [i.e.,]

that the constitutional norm relied upon is the logical

extension of principles and decisions already in the books”);

see also Doyle, 305 F.3d at 620 (holding that “it is not the

simple existence of analogous case law that defeats the

claim of qualified immunity; rather, these decisions must

demonstrate that, at the time the defendants acted, it

was certain that their conduct violated the law”); Suboh

v. District Attorney’s Office of Suffolk Dist., 298 F.3d 81, 93 (1st

Cir. 2002) (holding that “[a]rticulating the right as one of

‘familial integrity’ casts too broad a net. The inquiry into

whether a right is clearly established ‘must be undertaken

in light of the specific context of the case, not as a broad

general proposition’ ”) (citation omitted). Finally, the de-

fendants are also entitled to qualified immunity on the

third ground, that the threat to remove the Does’ children

from their custody violated their right to familial relations.

While there are a few cases in other jurisdictions holding

that a government official violates the right to familial

relations by threatening to remove a child from his parents’

custody, see, e.g., Miller, 174 F.3d at 376; Croft, 103 F.3d

at 1124-27, the law in this circuit did not place a reason-

56 No. 01-3648

able child welfare caseworker on notice that such conduct

was clearly unconstitutional.

Thus, although we find many of the actions taken by the

defendants during the course of their investigation quite

disturbing, we cannot, as a matter of law, hold that a rea-

sonable caseworker or supervisor would have known

that conducting a child abuse investigation in the man-

ner outlined herein violated the plaintiffs’ constitutional

right to familial relations.

C. “Procedural” Due Process Claims

The plaintiffs also contend that the defendants’ actions

in this case denied all of them procedural due process. In

a procedural due process claim, the deprivation by the

state of a constitutionally protected interest in “life, liberty,

or property” is not in and of itself unconstitutional; what

is unconstitutional is the deprivation of such an interest

without due process of law. Brokaw, 235 F.3d at 1020. A

procedural due process claim involves a two-step inquiry:

(1) whether the defendants deprived the plaintiffs of a

constitutionally protected liberty or property interest; and

(2) if so, whether that deprivation occurred without due

process of law. Zinerman v. Burch, 494 U.S. 113, 125 (1990);

Doyle, 305 F.3d at 616.

Our analysis up to this point demonstrates that the

plaintiffs have satisfied the first step by adequately alleging

claims for illegal search, illegal seizure, and violation of

the right to familial relations. We, therefore, turn to the

second step of the inquiry: what process was due. In ad-

dressing this question, we note that “the precise timing

and form of the procedures that the government must af-

ford an individual hinge upon the particularities of the

situation,” and that due process, “ ‘unlike some legal rules,

No. 01-3648 57

is not a technical conception with a fixed content unre-

lated to time, place, and circumstances.’ ” Doyle, 305 F.3d

at 618 (citation omitted). To the contrary, “due process

is flexible, requiring different procedural protections de-

pending on the situation at hand.” Id.

In order to ascertain the amount of process constitution-

ally due in a given case, we consider: (1) the private inter-

est that will be affected by the official action; (2) the risk

of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and (3)

the government’s interest, including the function involved

and the fiscal and administrative burdens that the addi-

tional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also

Doyle, 305 F.3d at 618. In this case, however, the Mathews

balancing test was essentially subsumed into our analysis

of the plaintiffs’ underlying constitutional claims, all of

which required a balancing of the plaintiffs’ interests

against those of the government. Brokaw, 235 F.3d at 1020

n.16 (noting that a “single act” can give rise to both a

substantive and procedural due process claim); Darryl H.,

801 F.2d at 901-02 n.7. (noting that although “[f]ourteenth

amendment due process analysis obviously differs in

some respects from fourth amendment analysis . . . . both

interests can be treated together . . . . [because] [w]hether

substantive due process rights are at stake, or procedural

due process rights are at stake, a court must essentially

weigh the privacy interest of the family member against

the interests of the government”).

Given the foregoing, we conclude that the plaintiffs

have stated claims against the defendant for violating

their right to procedural due process by: (1) failing to ob-

tain a warrant or court order before searching Greendale’s

58 No. 01-3648

premises and seizing John Doe Jr.; (2) interrogating John

Jr. without first notifying his parents and obtaining their

consent; and (3) investigating the plaintiff parents for child

abuse and threatening to remove the Does’ children from

their custody without definite and articulable evidence

giving rise to a reasonable suspicion that the plaintiff

parents had abused their children or that the children were

in imminent danger of being abused.

Nevertheless, as with the underlying constitutional

claims, the defendants are entitled to qualified immunity

from plaintiffs’ procedural due process claims. The defen-

dants searched Greendale’s premises, seized John Doe Jr.,

and interrogated John Jr., relying on the “authority” granted

to them by § 48.981(3)(c)1. Moreover, as noted supra, to

the extent the defendants investigated the plaintiff par-

ents solely due to their use of or support for corporal

punishment, or threatened to remove the Does’ children

from their custody, the law in this area was not clearly

established so as to place the defendants on notice that

their actions were clearly unconstitutional. The defendants

are, therefore, entitled to qualified immunity from plaintiffs’

procedural due process claims.

D. Facial and As Applied Challenges to the Constitution-

ality of Wisconsin Stat. § 48.981(3)(c)1

Finally, we conclude our analysis by addressing the

plaintiffs’ argument that § 48.981(3)(c)1 is unconstitutional,

both facially and as applied. We begin with the plaintiffs’

as applied challenge. As we have noted on numerous oc-

casions, “it is a proper exercise of judicial restraint for courts

to adjudicate as-applied challenges before facial ones in

an effort to decide constitutional attacks on the narrowest

possible grounds and to avoid reaching unnecessary con-

No. 01-3648 59

stitutional issues.” Commodity Trend Serv., Inc. v. Commod-

ity Futures Trade Comm’n, 149 F.3d 679, 689 n.5 (7th Cir.

1998).

As our foregoing analysis demonstrates, § 48.981(3)(c)1

is clearly unconstitutional as applied to the plaintiffs. This

statutory provision permits government officials to inter-

view a child at “any location without permission from

the child’s parent, guardian or legal custodian if necessary

to determine if the child is in need of protection of ser-

vices . . . .” § 48.981(3)(c)1. Although the purpose behind

this legislative enactment is no doubt well intended,

governmental objectives may not override the constitu-

tional protections afforded by the Fourth and Fourteenth

Amendments. Thus, to the extent § 48.981(3)(c)1 authorizes

government officials to interview children suspected

of being abused on private property without a warrant,

probable cause, consent, or exigent circumstances, it is

clearly unconstitutional as applied.

We reject the plaintiffs’ contention that § 48.981(3)(c)1 is

facially unconstitutional. The Supreme Court has held

that a facial challenge to the constitutionality of a statute

will only succeed if a plaintiff can “establish that no set

of circumstances exists under which the Act would be

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

Because § 48.981(3)(c)1 can be applied constitutionally (e.g.,

when government officials interview a child on public

school property because they have definite and articulable

evidence giving rise to a reasonable suspicion that a child

has been abused by his parents or is imminent danger

of parental abuse), the plaintiffs’ facial challenge may not

be sustained.

60 No. 01-3648

III.

For the reasons expressed in this opinion, the district

court’s judgment is AFFIRMED.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-16-03