Jane Doe v. Taylor Independent School District, Mike Caplinger in His Official Capacities and Eddy Lankford in His Official and Individual Capacities

PATRICK E. HIGGINBOTHAM, Circuit Judge,

with whom POLITZ, Chief Judge,

joins specially concurring:

The complex and interrelated roles played by state and federal law in Fourteenth Amendment jurisprudence require subtle, often Byzantine, analysis. True to form, the legal basis of this case is complex. Not so true to form, the judgment it demands is simple. This is a case about power and its abuse. The state conferred the power and Stroud abused it. That Coach Stroud exceeded the constitutional limits of his authority, and that Principal Lankford caused a violation of Doe’s rights by looking away, are truths too plain to admit of uncertainty, legal or otherwise. We have never understood the Fourteenth Amendment to permit such a misuse of state power. I therefore join the majority opinion.

The majority and dissents divide today over the “law,” but that division rests largely on different perceptions of the human condition. We have all looked at the same set of facts and come away with quite different perceptions of what transpired between teacher and pupil. The majority sees an exploitation of power and the dissents see causal sex. Make no mistake about it. This case is not about a high school coach who happened to have an affair with a student. It is about abuse of power.

Our dissenting colleagues lodge carefully drafted and cogent objections, although I remain persuaded that the majority has it “right.” With no burden to stitch together an agreement of a majority, a burden well-carried by Judges Jolly and Davis, I am free to engage the dissents by writing separately and to add a gloss to the majority’s reasoning.

I.

In Bush v. Viterna, 795 F.2d 1203 (5th Cir.1986), we set out three steps necessary to drawing the circle of liability under 42 U.S.C. § 1983 . As we noted, section 1983 provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any ... person within the jurisdiction [of the United States] to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured_” Viterna, 795 F.2d at 1204 (citing 42 U.S.C. § 1983 ) (emphasis and alterations in original). We have interpreted section 1983 to require a court to determine whether a rights violation occurred, whether it occurred under color of state law, and whether the particular state actor or actors before the court caused the violation. Id. at 1209 .

A

I first ask whether Doe’s rights were violated. Id. I conclude with the majority that they were. The majority and Judge Garwood’s dissent agree today that the Due Process Clause of the Fourteenth Amendment affords Doe a liberty interest in her bodily integrity, protected from certain unwarranted state deprivations. See Shilling-ford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). This protection extends to a student’s right to be free from corporal punishment in school if arbitrary, capricious, or wholly unrelated to a legitimate state purpose. Fee v. Herndon, 900 F.2d 804, 808 (5th Cir.), cert. denied, 498 U.S. 908 , 111 S.Ct. 279 , 112 L.Ed.2d 233 (1990) (citations omitted). The right also protects a fifteen-year-old student from a teacher who uses his authority to sordid sexual ends. See Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745 , 750 (5th Cir.1993) (acknowledging student’s right to be free from sexual abuse by teacher). See also Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 , 305 (5th Cir.1987) (recognizing stu *460 dent’s “right to be free of state-occasioned damage to [the student’s] bodily integrity”) (citation and internal quotation marks omitted).

Judge Jones argues that a child has no constitutionally protected interest in being free from physical sexual abuse by a teacher who uses his position of authority to seduce her. I respectfully disagree with that result and the methodology behind it. She quotes but does not apply the Supreme Court’s pronouncement in Michael H. that, “the term ‘liberty’ in the Due Process Clause extends beyond freedom from physical restraint.” Michael H. v. Gerald D., 491 U.S. 110, 121 , 109 S.Ct. 2333, 2340 , 105 L.Ed.2d 91 (1989) (citing Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925) and Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923)). We have held that a student has a right to be free from corporal punishment inflicted in a way that is “arbitrary, capricious, or wholly, unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning.” Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d 1243, 1246 (5th Cir.1984). The physical sexual abuse here was, then, a fortiori a deprivation of Doe’s liberty interests. I do not see how Coach Stroud’s use of his position of authority to pressure and manipulate Doe into sex could be other than arbitrary and capricious. It served no legitimate state goal. Judge Jones at times appears to recognize our long history of using state and federal law to determine the traditions and conscience of our people. 1 She is correct to do so. The deeper the mark of disapproval that state and federal civil and criminal law have placed on Stroud’s acts, the stronger the case that Doe’s liberty interest is fundamental. See Michael H., 491 U.S. at 122 , 109 S.Ct. at 2341 . Whether a foundation in state and federal laws and their history is either necessary or sufficient for the recognition of a right may be contested. That such a foundation supports recognition of a right is uncontroversial. 2

Nevertheless, Judge Jones rests her claim that the Constitution does not afford Doe protection in part on the fact that state and federal laws provide Doe a remedy for her complaints. Judge Jones concludes, “The attention that this ‘right’ has received throughout state and federal statutory and common law demonstrates a history of ordered deliberation and strongly suggests that Doe’s right is not ‘fundamental’ in the sense that Doe needs the additional armature of constitutional common law to protect her.” Jones Dissent at 479 (footnote omitted). Judge Jones claims that Doe has no constitutional right because she does not need one; state and federal laws shield her.

The existence of state law protecting an interest does not, however, diminish the force of a claim for constitutional protection. See Snowden v. Hughes, 321 U.S. 1, 11 , 64 S.Ct. 397, 402 , 88 L.Ed. 497 (1944) (“state action, even though illegal under state law, can be *461 no more and no less constitutional under the Fourteenth Amendment than if it were sanctioned by the state legislature”). See also United States v. Raines, 362 U.S. 17, 25 , 80 S.Ct. 519, 524 , 4 L.Ed.2d 524 (1960) (“It makes no difference that the discrimination in question, if state action, is also violative of state law.”) (citing Snowden). State law may cure a constitutional violation by providing adequate post-deprivation state remedies, but only where the state may at times constitutionally infringe the interest at stake. Justice Powell recognized this distinction in Ingraham v. Wright, 430 U.S. 651 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977). See Parratt v. Taylor, 451 U.S. 527, 542-43 , 101 S.Ct. 1908, 1916 , 68 L.Ed.2d 420 (1981). See also Fee v. Herndon, 900 F.2d 804, 808 (5th Cir.1990); Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d 1243, 1245 (5th Cir.1984).

Justice Powell in Ingraham established a two-stage analysis of a student’s right to be free from corporal punishment. See Ingraham, 430 U.S. at 672 , 97 S.Ct. at 1413 . First, one asks whether protected interests are implicated. Id at 672-74, 97 S.Ct. at 1413-14 . Second, one asks whether the person who suffered the deprivation was accorded due process of law. Id. at 674-82 , 97 S.Ct. at 1414-18 . At the second stage the existence of protective state and federal law undermines, rather than supports, the conclusion that a due process violation has occurred. Only after we have recognized a fundamental liberty interest do we look to state law to see if an infringement of that interest has occurred without due process. See id. at 672 , 97 S.Ct. at 1413 .

Justice Powell noted in Ingraham , “Were it not for the common-law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed.” Id. at 674 , 97 S.Ct. at 1414 (footnote omitted). As the state never has a legitimate basis for inflicting physical sexual abuse on a child, no set of procedural safeguards whether available before or after such a violation would meet the requirements of due process. Justice Powell’s reasoning in Ingraham supports this conclusion: “If the common-law privilege to inflict reasonable corporal punishment in school were inapplicable, it is doubtful whether any procedure short of a trial in a criminal or juvenile court could satisfy the requirements of procedural due process for the imposition of such punishment.” Id. at 674 n. 44, 97 S.Ct. at 1414 n. 44 (citations omitted).

Unlike in the case of corporal punishment, even “a trial in a criminal or juvenile court” prior to the infliction of physical sexual abuse on a child would not meet the requirements of due process. As physical sexual abuse of a student is never warranted, no process suffices to vitiate the rights violation such abuse involves. While state law vindicating Doe’s liberty interest may comfort, it offers no basis for concluding that her interest is not fundamental or that her rights were not violated. There are powerful arguments that 42 U.S.C. § 1983 was not intended to reach episodic acts not sanctioned by state law or custom. Nevertheless, the Supreme Court rejected that reading in Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961) and we are not free to adopt it.

B

The next inquiry is whether the deprivation of liberty occurred under color of state law. I agree that it did. Stroud’s official interactions with Doe and his sexual involvement with her together constituted an indivisible, ongoing relationship. The special attention Stroud gave Doe as her teacher afforded him the opportunity to exert his influence. He levered his authority to press upon Doe his sexual desires, while both on and off school grounds. He treated Doe differently than he treated other members of his class. He gave her good grades, required of her less work than other students, and allowed her to behave as she liked in his classroom. This manipulative course was an abuse of power conferred by the state. I am persuaded that Stroud acted under color of state law.

Judge Garwood’s dissent commendably recognizes the relevance of this inquiry but contests this conclusion, relying on D.T. v. Independent Sch. Dist., 894 F.2d 1176 (10th Cir.), cert. denied, 498 U.S. 879 , 111 S.Ct. 213 , 112 L.Ed.2d 172 (1990), where a school *462 coach was held not to have acted'under color of state law when engaging in sexual activity with students. Id. at 1192 . Unlike the defendant in D.T., however, Stroud was Doe’s teacher before, during, and after their sexual liaison. See id. at 1191 (emphasizing that teacher was on vacation when molestation occurred in reaching conclusion that he did not act under color of state law).

The importance of Stroud’s position as Doe’s teacher becomes clearer when one considers Judge Garwood’s contention that Stroud did not exchange formal rewards for sexual favors from Doe. From that factual premise Judge Garwood suggests that Stroud may not have acted under color of state law. Judge Garwood’s contention is tenable but not persuasive. The approval which Stroud conferred on Doe is both one of the most common and one of the most effective tools employed by teachers in affecting the behavior of their students. It is precisely this use by Stroud of his position of authority to which I point. The very official nature of this attention facilitated his efforts — and indeed enabled him — to violate her rights.

Judge Garza’s dissent takes Judge Garwood’s view one step further. He argues that a state actor must exercise state authority, and not merely act in an official position, before the courts will recognize action under color of state law. Again, the Supreme Court has rejected this approach. In Monroe , the Court dismissed the notion that “ ‘under color of enumerated state authority excludes acts of an official or policeman who can show no authority under state law, state custom, or state usage to do what he did.” Monroe v. Pape, 365 U.S. at 172 , 81 S.Ct. at 476 .

Judge Garza, however, offers a subtle distinction. To find that action in violation of state law remains under color of state law, Judge Garza would require an exercise of otherwise legitimate authority granted by the state that extends beyond permissible limits. A state may authorize searches and seizures, for example, while a police officer nevertheless violates the Constitution by exceeding that authority. Under this view, violating state law while in the pursuit of an endeavor generally approved by the state may amount to violating the Constitution under color of state law.

The problem under this approach becomes one of characterization. It defines the relevant conduct of the state officers in Monroe as excessive conduct in performing a search and seizure. The argument continues that because the state authorizes officers to perform searches and seizures, the officers acted under color of state law. See Garza Dissent at 485-86. Judge Garza contrasts this rights violation with Stroud’s treatment of Doe. Stroud had no authority, Judge Garza reasons, to inflict physical sexual abuse on Doe. From this fact, Judge Garza concludes that Stroud did not act under color of state law.

The parallel between Stroud’s actions and those of a lawless police officer are closer than Judge Garza’s dissent acknowledges. Consider, for example, United States v. Price, 383 U.S. 787 , 86 S.Ct. 1152 , 16 L.Ed.2d 267 (1966), in which several police officers and private citizens murdered three civil rights workers after their release from a Mississippi jail. The Court found not only that the officers acted under color of state law, but also that the private citizens “were participants in official lawlessness, acting in willful concert with state officers and hence under color of law.” Id. at 795 , 86 S.Ct. at 1157 . The officers and the private citizens exercised no legitimate authority. Their motivations were racist and therefore based on private hatred. Moreover, there are no circumstances in which the police may permissibly act as judge, jury, and executioner, and none in which private citizens may play these roles. Yet the Supreme Court’s decision in Price requires a finding of an abuse of state authority. The decision, therefore, keeps us from confining abuse of state authority to situations where state actors pursue legitimate ends. Of course, Stroud’s actions are of a different order than the stunning execution of three young civil rights workers by officers and private citizens in Price , but his actions nevertheless were an abuse of state authority, as I have explained.

*463 C

Finally, I identify the state actors responsible for the violation. See Viterna, 795 F.2d at 1209 . By definition, the deprivation of a federally protected right as defined by federal standards creates a federal claim. Id. Nevertheless, state law is often a source in explicating violations of federal rights. Most familiar, perhaps, is our drawing on state law to determine whether a claimant had a property right protected by the Due Process Clause of the Fourteenth Amendment. Id. (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 537 , 105 S.Ct. 1487, 1491 , 84 L.Ed.2d 494 (1985) and Shelton v. City of College Station, 780 F.2d 475, 482 (5th Cir.), cert. denied, 477 U.S. 905 , 106 S.Ct. 3276 , 91 L.Ed.2d 566 (1986)). State law allows us “to identify the persons responsible for [the] identified civil rights violation.” Id. State law is of course implicit in the conclusion that the state vested the coach with the authority he abused. State law is more obviously at work when we move beyond the immediate actor. To put the matter differently, state law guides us in circling state actors who fairly can be said to have caused Doe to be subjected to the rights violation. Caution is necessary because section 1983 imposes liability only upon persons who-cause a deprivation; state law does not, in other words, furnish a theory of vicarious liability. Rather, it locates the actors — the persons. Lopez v. Houston Indep. Sch. Dist., 817 F.2d 351, 355 (5th Cir.1987). A supervisor who might have acted, but did not, cannot be found liable under section 1983 for that reason alone. Under most circumstances, the supervisor could have prevented or stopped the rights violation in some way. See City of Canton v. Harris, 489 U.S. 378, 392 , 109 S.Ct. 1197, 1206 , 103 L.Ed.2d 412 (1989) .(“In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city ‘could have done’ to prevent the unfortunate incident.”). Thus, if inaction sufficed as the basis for a suit under section 1983, the supervisor would effectively be vicariously liable.

The Supreme Court has adopted a standard for determining when a failure to act amounts to “a ‘deliberate’ or ‘conscious’ choice by a municipality.” Id. at 389, 109 S.Ct. at 1205. The Court requires deliberate indifference. Id. (citing Monell v. Department of Social Servs., 436 U.S. 658, 694 , 98 S.Ct. 2018, 2037 , 56 L.Ed.2d 611 (1978) and Polk County v. Dodson, 454 U.S. 312, 326 , 102 S.Ct. 445, 454 , 70 L.Ed.2d 509 (1981)). Where a municipality’s inaction demonstrates deliberate indifference toward the rights of an individual, the municipality commits an act of omission. ■ Its failure to act rises to the level of a conscious or deliberate choice. Id. See also Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745 , 757 (5th Cir.1993) (applying deliberate indifference standard).

The majority recognizes that we apply the same standard to supervisors. A supervisor who acts with deliberate indifference by failing to train or oversee his subordinates may be held liable under section 1983. See, e.g., Hinshaw v. Doffer, 785 F.2d 1260, 1262-66 (5th Cir.1986) (applying this standard to police chief who allegedly failed to train and supervise police officer). See also Lopez, 817 F.2d at 355 (finding that bus driver may be hable for acting with “callous indifference” in failing to supervise students properly). An omission that evinces deliberate indifference toward the violation of an individual’s constitutional rights may amount to an act that causes the violation. Lopez, 817 F.2d at 355 ; Hinshaw, 785 F.2d at 1263 . Lankford, the principal at Stroud and Doe’s school, demonstrated such deliberate indifference.

Time and again Lankford ignored Stroud’s inappropriate conduct with students. Lank-ford did not investigate reports and allegations of Stroud’s indecent behavior with any rigor. Neither did Lankford warn or discipline Stroud. On the other hand, as the majority notes, the same cannot be said of Caplinger, the superintendent. Caplinger took action when he became aware that Stroud might have been acting improperly. His response was limited, but so were his grounds for questioning Stroud’s actions. Caplinger had less information than Lank-ford, and thus his ineffective actions do not suggest the same callous attitude. I agree, *464 therefore, that Lankford could be held liable under section 1983 and that Caplinger cannot be.

Nevertheless, in reaching this conclusion the majority skips the potentially determining role of state law at this point in the analysis. So far we have assumed that the state placed Lankford and Caplinger in the role of supervisors. As a result, an egregious failure to fulfill their obligation to oversee Stroud’s behavior would amount to action on their part. The state may, however, impose a greater obligation. It may saddle a state official with a specific duty to police the risk of unconstitutional acts by others.

In Bush v. Viterna, we considered whether the state imposed such an affirmative duty on the Texas Commission on Jail Standards. A class of inmates in Texas county jails sued under section 1983 asking a district court to compel the Commission to improve conditions in the county jails. 795 F.2d at 1204 . In rejecting the prisoners’ claim, we looked to state law to identify the person or persons responsible for maintaining ■ the jails. We found that state law placed the county sheriffs and commissioners courts, not the Commission, in charge of the jails. Id. at 1206 . Our analysis suggests that had the state imposed on the Commission an obligation to maintain the county prisons, the Commission’s failure to fulfill that obligation would have been treated as a deliberate or conscious choice. If that omission had resulted in the violation of a federal right through state action, the Commission would have been properly identified as a “state ... actor responsible for causing the wrong.” Id. at 1209 .

We adopted the same approach to gauge the liability of a supervisor in Howard v. Fortenberry, 723 F.2d 1206 (5th Cir.1984), in which two prisoners died after being left in an oppressively hot isolation cell for almost fifteen hours. Id. at 1209 . We relied on state law to identify the actors responsible for ensuring that the prison did not employ this illegal form of punishment. State law placed an affirmative duty on certain prison officials to inspect the prison facilities. Id. at 1213 . The court reversed the district court’s summary judgment in favor of these defendants, and remanded for the district court to determine their liability. Id. at 1214 . See also Miller v. Carson, 563 F.2d 757 , 760 n. 7 (5th Cir.1977) (“when a state official’s violation of state law causes [a constitutional violation], a federal cause of action arises under § 1983”) (citation omitted); Sims v. Adams, 537 F.2d 829, 831-32 (5th Cir.1976) (holding that cause of action exists under section 1983 where mayor and police chief may have had obligation under state law to supervise policeman with alleged history of racial violence).

I would first look to state law to determine the nature of Lankford and Caplinger’s obligations as Stroud’s supervisors. In particular, I would ask whether the state required Lankford or Caplinger to take specific action upon learning that Stroud may have been sexually abusing his students. Texas places on a school principal the duty to discipline; it also places the principal under the supervision of the superintendent in disciplinary matters. Tex.Educ.Code § 21.913(a)(1) (West 1994). The principal is responsible for “submitting recommendations to the superintendent concerning assignment, evaluation, promotion, and dismissal of all personnel.” Tex.Educ.Code § 21.913(a)(2) (West 1994). As a result, the general obligations of supervision attach to the positions of principal and superintendent. Texas law does not, however, make special provision for the appropriate response of a principal or superintendent to evidence of teacher misconduct. Consider a classroom teacher in the same school as Coach Stroud who had full knowledge of Coach Stroud’s activities but looked the other way. Any moral duty aside, no one suggests that § 1983 imposes liability upon this silent teacher. This conclusion is found in the role of state law.

In other contexts, the legislature has placed such an obligation to take affirmative action on principals. Section 21.303 of the Texas Education Code, for example, requires a principal to report, or to supervise a subordinate who will report, to the local police department reasonable grounds for suspecting the occurrence of any of several crimes in school, on school grounds, or at school-related functions. These activities include parole *465 violations, possession of illegal drugs or lethal weapons, and involvement in organized crime. Tex.Educ.Code § 21.303(a)(l — 4) (West 1994). The state legislature could have imposed a similar requirement on principals to investigate or report evidence suggesting that a teacher is involved sexually with a student. Had the legislature done so, Lankford’s passivity would have been inconsistent with this duty, irrespective of whether he acted with deliberate indifference. Under such circumstances, state law would support the conclusion that Lankford caused Doe to be subjected to a rights violation at the hands of Stroud.

There is no such specific obligation under Texas law and application of the deliberate indifference standard was appropriate. I therefore join the majority’s judgment, accepting Defendant Caplinger’s and rejecting Defendant Lankford’s assertion that he is entitled to qualified immunity as a matter of law. I agree that the school principal must on these facts take his case to a jury. A jury may ultimately not be persuaded that Lank-ford acted with the requisite level of indifference. I am not prepared to find its absence as a matter of law.

II.

Implicit in the rejection of Lankford’s assertion of qualified immunity is the conclusion that his legal duty was certain when breached. I find nothing in our cases to comfort the principal. The certainty of the illegality of his failure is a direct reflection of the certainty that the abuse by the coach was itself illegal under both state and federal law. If it is true that Lankford was a cause of the coach’s abuse of power because he knew and was indifferent to the occurrence, there is no room for “legal” uncertainty. In every practical sense of the word this school principal was a cause of the wrong. The assertion that his “duty” to do anything was uncertain is unconvincing.

Justice Scalia pointed out in Anderson v. Creighton, 3 the hazards of framing the legal question at too great a level of generality. The error can be made in the opposite direction — a search so narrowed that legal nuance rises to uncertainty and ultimately confounds common sense. Qualified immunity reflects the judgment that an official ought not to be mulcted for choices made that only later prove to have been “illegal.” I don’t think we today put any school principal in peril or unfairly second guess this one. This was not an episodic act of an interloper to the school scheme nor the private act of a student. Rather, it was the persistent pattern of indefensible conduct of a school official, the principal’s subordinate.

. Compare footnote 6 of Justice Scalia’s opinion in Michael H. in which the Chief Justice joined, 491 U.S. at 127 n. 6, 109 S.Ct. at 2344 n. 6 (arguing that in evaluating a potential liberty interest courts should look "to the most specific level at which a relevant tradition protecting, or denying protection to, [an] asserted right can be identified"), with Justice O'Connor's concurrence in which Justice Kennedy joined, 491 U.S. at 132 , 109 S.Ct. at 2346 (approving the use of tradition in explicating the Due Process Clause of the Fourteenth Amendment but rejecting "the most specific level” of generality as the sole appropriate "mode of historical analysis") and Justice Brennan's dissent in which Justices Marshall and Blackmun joined, 491 U.S. at 139 , 109 S.Ct. at 2350 (noting that “the historical and traditional importance of ... interests in our society" informs, but does not dictate, the decision to recognize them as liberty interests). Perhaps the one point of consensus on the Court is that a history of state and federal laws protecting an interest lends credence to the claim that it falls within the protective scope of the United States Constitution. But cf. Hudson v. McMillian,— U.S. -, -, 112 S.Ct. 995, 1010-11 , 117 L.Ed.2d 156 (1992) (Thomas, J., dissenting) (noting robust protection of right by state common law in concluding that right is not protected by Eighth Amendment of United States Constitution).

. 483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987).