Ebonie S. v. Pueblo School District 60

FILED

United States Court of Appeals

Tenth Circuit

PUBLISH

August 28, 2012

UNITED STATES COURT OF APPEALS

Elisabeth A. Shumaker

TENTH CIRCUIT Clerk of Court

EBONIE S., a child, by her mother and

next friend, Mary S.,

PlaintiffAppellant,

v.

PUEBLO SCHOOL DISTRICT 60;

MARILYN GOLDEN, Teacher, in her

official and individual capacities; GARY

TRUJILLO, Principal, in his official and

individual capacities; MARY JO

BOLLINGER, Executive Director of

Exceptional Student Services, in her

official and individual capacities;

LOUISE RIVAS, paraprofessional, in her

official and individual capacities;

SHARON WELLS, paraprofessional, in No. 11-1273

her official and individual capacities;

ISABEL SANCHEZ, paraprofessional, in

her official and individual capacities;

AUDRA MARTINEZ, paraprofessional,

in her official and individual capacities;

KRISTEN POTTER, paraprofessional, in

her official and individual capacities,

DefendantsAppellees,

------------------------------

COUNCIL OF PARENT ATTORNEYS

AND ADVOCATES, INC.; COLORADO

ASSOCIATION OF SCHOOL BOARDS,

Amici Curiae.

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:09-CV-00858-WJM-MEH)

Cristina F. Gomez, Holland & Hart LLP, Denver, Colorado (Jonathan S. Bender, Holland

& Hart LLP, Denver, Colorado; Maureen Reidy Witt, Holland & Hart LLP, Englewood,

Colorado; and Katherine Gerland, Law Offices of Louise Bouzari LLC, Englewood,

Colorado, with her on the briefs), for the Plaintiff-Appellant.

Sonja S. McKenzie (Sarah A. Schreiber with her on the briefs), Senter Goldfarb & Rice

LLC, Denver, Colorado, for Defendants-Appellees Pueblo School District 60, Gary

Trujillo, Mary Jo Bollinger, Louise Rivas, Sharon Wells, Isabel Sanchez, Audra

Martinez, and Kristen Potter.

W. Stuart Stuller (Meghan Pound with him on the briefs), Caplan and Earnest LLC,

Boulder, Colorado, for Defendant-Appellee Marilyn Golden.

Kimberly F. Rich, Baker & McKenzie LLP, Dallas, Texas, for Amicus Curiae Council of

Parent Attorneys and Advocates, Inc.

Kathleen Sullivan, Denver, Colorado, for Amicus Curiae Colorado Association of School

Boards.

Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.

LUCERO, Circuit Judge.

This appeal requires us to decide whether the use of a particular desk in special

education classrooms is permissible under the United States Constitution. The desks in

question wrap around the student on the front and the sides and have a securing bar that

runs behind the student’s chair. A student can only remove herself by sliding under or

crawling over the desk’s surface when the bar is in place. In a kindergarten special-

education classroom at Bessemer Academy in Pueblo, Colorado, Ebonie S., a young girl

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with multiple disabilities, was often required to sit in this type of desk. Ebonie’s mother,

Mary S., filed suit on her behalf under 42 U.S.C. § 1983, contending that the use of the

desk violated the Fourth Amendment, the Due Process Clause, and the Equal Protection

Clause, as well as the Americans with Disabilities Act (“ADA”) and the Rehabilitation

Act. The district court granted summary judgment to defendants on the constitutional

claims, but denied summary judgment on the statutory claims. Plaintiff now appeals the

grants of summary judgment, and exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

Plaintiff devotes much effort to arguing that the use of the desk was prohibited

under Colorado law and was contrary to well-established educational standards. But it is

not our office to decide the lawfulness of the desk under state law or the wisdom of using

the desk as a matter of pedagogical policy. We firmly decline to offer any view on those

questions. Moreover, we express no view as to the claims under the ADA and the

Rehabilitation Act. We hold only that use of the desk under the circumstances presented

did not violate the Fourth or the Fourteenth Amendments.

I

Ebonie was born addicted to cocaine. She has been diagnosed with multiple

developmental and intellectual disabilities, including Down syndrome, as well as

numerous physical ailments. Mary adopted Ebonie when she was four years old.

Ebonie began attending Bessemer Academy in 2006 at age five. She was placed

in a class for students with severe disabilities taught by Marilyn Golden. Golden was

assisted by several paraprofessionals: Louise Rivas, Sharon Wells, Isabel Sanchez,

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Audra Martinez, and Kristen Potter. Ebonie attended class from 8 am to 11 am five days

a week, although she stayed until 1 pm for at least part of the year.

In Golden’s classroom, there were special desks for several children, including

Ebonie. The surfaces of these desks are U-shaped, such that when a student’s chair is

completely pulled in, the student is surrounded by the desk on three sides. The cutout

portion of the desk is lined with rubber. A wooden bar, approximately one inch by two

inches, runs the length of the back of the desk. When a student is sitting at the desk, the

bar rests behind the student’s chair, thus preventing her from pushing her chair out. A

barrel bolt, akin to the fastener on the door of a restroom stall, can be used to secure the

bar.1

Defendants maintain that Ebonie could unfasten and lift the restraining bar herself,

and that Ebonie could also exit the desk by sliding under or crawling over the table.

Plaintiff contends that Ebonie did not have the motor skills or range of motion required to

unfasten the desk—an assertion supported by expert evidence. Plaintiff has not,

however, refuted the claim that Ebonie could escape from the desk by climbing over or

sliding under it.2 Plaintiff refers to the desk as a “restraint,” which is accurate insofar as

the desk restricted Ebonie’s movement by preventing her from pushing out her chair. It

is important to note, however, that the desk did not bind or hold Ebonie down in any way.

1

Plaintiff refers to the bar as a “locking bar,” but that term could be misleading.

Although the bar could be secured in position with the barrel bolt, none of the desks in

Golden’s classrooms were ever locked with a key.

2

Plaintiff claims to have presented evidence to the contrary, but all of the

evidence cited addresses Ebonie’s ability to undo the bolt, not whether she could escape

the desk through other means.

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Golden and the paraprofessionals used the desks to discipline Ebonie and to

ensure that she remained on-task and did not disrupt the classroom. Everyone agrees that

Ebonie did not need the desk for orthopedic purposes, and that the desk was never used

as an emergency measure to ensure her own safety or the safety of others. According to

school officials, Ebonie was placed in the desk with the bar down for only a few minutes

at a time. However, Mary asserted that on visits to the classroom she observed Ebonie in

the desk for an hour, with the bar in place the entire time. Mary initially consented to the

use of the desk when Ebonie was in a different preschool in the same district. Mary

argues, however, that she consented to the desk’s use only as a means of keeping Ebonie

in her chair, not as a disciplinary mechanism. Additionally, Mary contends that her

consent was not informed because she was unaware that the desk violated the Colorado

Protection of Persons from Restraint Act. See C.R.S. § 26-20-103(1)(a).3

By the beginning of 2007, Mary became increasingly concerned about what she

perceived as a lack of progress by Ebonie at Bessemer. In March, she met with Principal

Gary Trujillo and revoked her consent for the use of the desk. But news of Mary’s

revocation did not trickle down to Golden and the paraprofessionals.

On April 9, 2007, Golden sent Ebonie home with what she thought was a digestive

ailment. Ebonie had actually fractured her upper arm. No one knows how or when

Ebonie’s arm was broken. A police report concluded that she broke the bone before

3

The Act prohibits schools districts from using any “restraint”—defined as “any

method or device used to involuntarily limit freedom of movement”—except in cases of

emergency. C.R.S. §§ 26-20-103(1)(a), 102(6). We express no view as to whether the

desk ran afoul of this provision.

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school when she fell at a babysitter’s house. An expert for the plaintiff, however, opined

that the break was not likely the result of a fall and could have been caused by an injury

related to the desk.

Mary subsequently removed Ebonie from Bessemer. She first brought an

administrative claim against the school district under the Individuals with Disabilities in

Education Act, 20 U.S.C. § 1400. A hearing officer ruled that Ebonie had been deprived

of a free and appropriate education within the meaning of the Act. Additionally, the

hearing officer determined that use of the desk was prohibited by the Colorado Protection

of Persons from Restraint Act, though he acknowledged that he lacked jurisdiction to

award damages on that claim. Mary and Ebonie then filed suit in federal court, naming

as defendants the school district, Golden, the paraprofessionals, Principal Trujillo, and

Mary Jo Bollinger, the district’s Interim Director of Exceptional Student Services. On a

motion for summary judgment, the district court held that the plaintiff’s Fourth

Amendment, Due Process, and Equal Protection claims failed as a matter of law.

However, the court concluded that the plaintiff’s claims under the ADA and the

Rehabilitation Act merited consideration by a jury. At plaintiff’s request, the district

court entered judgment on the constitutional claims pursuant to Fed. R. Civ. P. 54(b).4

She now appeals.

II

4

The defendants do not contest the district court’s 54(b) certification, and our

independent review reveals no reason to disturb that determination. See Stockman’s

Water Co. v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (“[A] district

court’s decision to grant certification under Rule 54(b) merits substantial deference and

should not be disturbed unless the district court’s determination was clearly erroneous.”).

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We review the district court’s summary judgment grant de novo. Bohn v. Park

City Group, 94 F.3d 1457, 1460 (10th Cir. 1996). Summary judgment is only appropriate

if there is no dispute of material fact and the movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). “We view the summary judgment evidence in the light most

favorable to the non-movant, applying the same standard as the district court.” Bertsch v.

Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012).

A

Students do not “shed their constitutional rights . . . at the schoolhouse gate.”

Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 506 (1969). However,

federal courts have long recognized that government action impermissible in other

spheres may be proper in the school setting. See Hazelwood Sch. Dist. v. Kuhlmeier, 484

U.S. 260, 266 (1988) (“[R]ights of students in the public schools are not automatically

coextensive with the rights of adults in other settings.” (quotation omitted)).

To evaluate whether an in-school seizure is permissible, we ask if the challenged

action was “justified at its inception” and “reasonably related in scope to the

circumstances which justified the interference in the first place.” Edwards ex rel.

Edwards v. Rees, 883 F.2d 882, 884 (10th Cir. 1989). But before reaching this standard,

a plaintiff must satisfy a preliminary hurdle: She must show that the school’s

restrictions rose to the level of a seizure under the Fourth Amendment. Couture v. Bd. of

Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1250 (10th Cir. 2008). In the ordinary

law-enforcement setting, a seizure occurs “only if, in view of all the circumstances

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surrounding the incident, a reasonable person would have believed that he was not free to

leave.” California v. Hodari D., 499 U.S. 621, 628 (1991). But “[w]e must think about

seizures differently in the school context, as students are generally not at liberty to leave

the school building when they wish.” Couture, 535 F.3d at 1250-51; cf. Sandin v.

Conner, 515 U.S. 472, 485 (1995) (“[C]hildren sent to public school are lawfully

confined to the classroom.”). For this reason, “[t]o qualify as a seizure in the school

context, the limitation on the student’s freedom of movement must significantly exceed

that inherent in every-day, compulsory attendance.” Couture, 535 F.3d at 1251.

In Couture, we considered the placement of a six-year old child in a closet-sized

“time out room.” 535 F.3d at 1249. We skirted the question of whether that detention

constituted a seizure because we held that even if it was, it was reasonable under the

Fourth Amendment. Id. at 1256. Similarly, when faced with a vice principal’s twenty-

minute interrogation of a student in a closed office, we assumed without deciding that a

seizure had occurred and held that, if it had, it was reasonable. Edwards, 883 F.2d at

884.

In light of our precedent and the record before us, we conclude that the desk’s

limitation on Ebonie’s movement did not “significantly exceed that inherent in every-day,

compulsory attendance.” Couture, 535 F.3d at 1251. Accordingly, we hold that Ebonie

has failed to demonstrate a cognizable seizure under the Fourth Amendment. Three key

facts support our conclusion. First, while it is undisputed that the desk restricted

Ebonie’s movement, the position that it forced her to assume—seated in a chair faced

forward—is the standard pose required of countless schoolchildren across the nation.

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Significantly, and in contrast to Couture and Edwards, the restrictions imposed on Ebonie

did not remove her from the classroom environment. The controversial portion of the

desk was its restraining bar, but there is no evidence that the bar would force a student to

sit in any unusual manner.

Second, Ebonie had the ability to remove herself from the restraints imposed on

her. Viewing the facts in the light most favorable to the plaintiff, we must assume that

she was unable to lift the bar if it was latched in place.5 But the plaintiff has not

submitted any evidence to controvert the defendants’ testimony that Ebonie could get out

of the desk by crawling over or sliding under the front portion. Thus, the record indicates

that Ebonie was only inhibited from getting out of the desk in one manner, though that is

the easiest and most natural one—by pushing out her chair. Unlike the boy in Couture,

who was barricaded in the time-out room with no means of escape, Ebonie had an

opportunity to remove herself from her restraints, albeit in a somewhat awkward fashion.

The plaintiff argues that this opportunity is irrelevant in light of the fact that Ebonie was

indisputably not allowed to leave her desk. But a teacher’s command that a student

remain sitting upright in her seat is a paradigmatic example of a restriction of movement

that is “inherent in every-day, compulsory [school] attendance.” Couture, 535 F.3d at

1251.

Finally, we find significant that the restraining mechanisms were not attached to

Ebonie’s body. This fact distinguishes Ebonie’s circumstances from the cases the

5

Despite our assumption that Ebonie was physically unable to lift the bar, we

nonetheless find significant the fact that the bar was never locked with a key.

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plaintiff cites in which other circuits have found in-school seizures. See Gray v. Bostic,

458 F.3d 1295, 1306 (11th Cir. 2006) (handcuffing student was unreasonable seizure);

Doe ex rel. Doe v. Haw. Dep’t of Educ., 334 F.3d 906, 910 (9th Cir. 2003) (taping

student’s head to a tree was a seizure).6 Physically binding a student is a much more

significant imposition on her dignity and bodily integrity than the use of the desk in this

case.

If one or more of these facts were absent, our conclusion might be different. But

in light of these three factors, we conclude that Ebonie was not seized within the meaning

of the Fourth Amendment. We affirm the district court’s grant of summary judgment on

this claim.

B

Plaintiff also contends that the desk violated Ebonie’s Fourteenth Amendment

rights by restricting her liberty without due process. “[F]reedom from bodily restraint

lies at the core of the liberty protected by the Due Process Clause.” Turner v. Rogers,

131 S. Ct. 2507, 2518 (2011) (quotation omitted). But it is clear that the interest is not

implicated by minimally restrictive governmental actions. Doe v. Bagan, 41 F.3d 571,

575 (10th Cir. 1994). In light of our conclusion that the restrictions placed on Ebonie did

not substantially exceed those inherent in compulsory education, we conclude that

Ebonie’s liberty interest in freedom from bodily restraint was not implicated. Cf.

Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005) (holding that, in the penal context, a

6

Admittedly, these cases do not employ the “substantially-exceeds” test we

announced in Couture. But the results reached in those cases are certainly consonant

with that standard.

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liberty interest is implicated only by an “atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life”).7 Just as the Fourth Amendment

allows restrictions in the school setting that would be untenable elsewhere, Due Process

rights cannot be triggered by every time-out and after-school detention.

Our conclusion is fully consonant with the Supreme Court’s decision in Ingraham

v. Wright, 430 U.S. 651 (1977). In that case, the Court explained that some in-school

disciplinary measures that restrict a student’s movement present only a “de minimis level

of imposition with which the Constitution is not concerned.” Id. at 674. The Court held,

however, that a student’s liberty interest was implicated by an ordinance that authorized

schools to impose corporal punishment that “inflict[s] appreciable pain.” Id. at 673-74;

see also id. at 674-682 (concluding that no advance process was required before

administering such punishment). Following Ingraham, the Fifth Circuit held that a

school-day detention that was not designed to cause pain fell on the de minimis side of

Ingraham’s line, even though more appropriate means of punishment were available.

See, e.g., Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1081-82 (5th Cir. 1995).

Although the plaintiff alleges that Ebonie’s arm fracture can be attributed to the

desk, there is no evidence to suggest that any defendant deliberately harmed Ebonie. We

find the absence of an intent to harm dispositive in this case. See Ingraham at 674

7

Prisons and schools are both areas in which the government may impose

restrictions that would otherwise violate the Fourth Amendment and Due Process Clause.

However, this is not to say that the constitutional rights of inmates and schoolchildren are

coterminous. See Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993)

(holding that, in some regards, “public schools are simply not analogous to prisons and

mental institutions”).

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(declaring that a liberty interest is implicated when school officials “deliberately decide

to punish a child for misconduct by restraining the child and inflicting appreciable

physical pain” (emphasis added)); Daniels v. Williams, 474 U.S. 327, 328 (1986) (“[T]he

Due Process Clause is simply not implicated by a negligent act of an official . . . .”). To

be sure, although any injuries were not intentional, the restraint of Ebonie was

undisputedly deliberate. But the restraint itself, not rising to the level of a seizure under

the Fourth Amendment, simply does not implicate the liberty interest recognized in

Ingraham. It follows that the district court was correct to grant summary judgment on the

Due Process claim.

C

The Equal Protection claim is based on the school district’s use of the desks

exclusively in special education classrooms. As with all Equal Protection challenges, we

must first determine the appropriate standard of review. Supreme Court precedent holds

that disabled individuals do not constitute a suspect class. See City of Cleburn v. Cleburn

Living Ctr., 473 U.S. 432, 442 (1985). Nevertheless, plaintiff argues that strict scrutiny

is appropriate because the desk infringed on Ebonie’s fundamental right to be free from

bodily restraint.

We agree that freedom from bodily restraint is a fundamental right protected by

the Equal Protection Clause. See United States v. Phelps, 17 F.3d 1334, 1344 (10th Cir.

1994) (“[I]t cannot reasonably be disputed that an individual’s liberty is a fundamental

right” under the Equal Protection Clause); see also Hydrick v. Hunter, 500 F.3d 978, 983

(9th Cir. 2007) (identifying “a liberty interest in freedom from bodily restraint” as a

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fundamental right under the Equal Protection Clause), vacated on other grounds, 129 S.

Ct. 2431 (2009). But in light of our analysis of the plaintiff’s Fourth Amendment and

Due Process claims, we conclude that the use of the desk did not infringe on this

fundamental right. Cf. Hedgepeth ex rel. Hedgepeth v. Wash. Metro. Area Transit Auth.,

386 F.3d 1148, 1156 (D.C. Cir. 2004) (rejecting claim that arrest implicated

“fundamental right to freedom of movement” because arrest comported with Fourth

Amendment standards).

All of the cited cases recognizing a fundamental right to freedom from restraint

deal with incarceration or other modes of confinement. See, e.g., Foucha v. Louisiana,

504 U.S. 71, 73 (1992) (psychiatric commitment); Phelps, 17 F.3d at 1336 (criminal

imprisonment); Hydrick, 500 F.3d at 983 (9th Cir. 2007) (commitment of sexual

offenders). Plaintiff cites no case holding that an in-school limitation of movement,

especially one that was not significantly more restrictive than those imposed on all

students, implicates this fundamental right. As in the Due Process context, we are

unwilling to subject every teacher’s order that limits the freedom of a student to strict

constitutional scrutiny.

Having concluded that use of the desk does not trigger heightened scrutiny, we

consider whether “there is any reasonably conceivable state of facts that could provide a

rational basis” for using the desk on Ebonie but not on regular education students.

Copelin-Brown v. N.M. State Pers. Office, 399 F.3d 1248, 1255 (10th Cir. 2005).

Although we are mindful of the fact that disability-based distinctions are sometimes

felled on rational-basis review, see, e.g., id.; Cleburn, 473 U.S. at 450, we conclude that

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this particular classification withstands scrutiny. Ebonie’s disabilities presented unique

pedagogical challenges, and it is certainly conceivable that requiring her to sit in a special

desk was a rational response to those challenges. Although plaintiff hypothesizes that

non-disabled students in mainstream classrooms might also have presented similar

behavioral challenges, the record contains no evidence to support this claim. Thus, we

hold that the district’s use of the desk survives rational-basis review and affirm the grant

of summary judgment on the Equal Protection claim.

III

For the foregoing reasons, the judgment of the district court is AFFIRMED.8

Plaintiff’s motion for leave to file a supplemental appendix is GRANTED.

8

Because we hold that plaintiff has not shown any constitutional violations, we do

not consider the plaintiff’s supervisory-liability claim or the individual defendants’

qualified-immunity defenses.

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