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

EDITH H. JONES, Circuit Judge,

with whom GARWOOD, JERRY E. SMITH, BARKSDALE, EMILIO M. GARZA and DeMOSS, Circuit Judges, join,

dissenting:

Justice Holmes wrote, “I have said to my brethren many times that I hate justice, which means that I know that if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” The Mind and Faith of Justice Holmes, 436 (M. Lerner Ed. 1943), cited in Raoul Berger, Government by Judiciary, 289 n. 24 (1977).

The same axiom might be applied to modern-day substantive due process, particularly to my colleagues’ airy assumption that Doe had a clearly established constitutional “substantive due process” right or liberty interest protecting her against “sexual fondling and statutory rape” by a school teacher. The majority must reach this conclusion so that they can hold that the school principal lacks qualified immunity for having poorly supervised the lecherous coach who plotted and consummated Doe’s seduction. If the principal is cast in judgment by a jury verdict, Doe can then recover § 1983 damages and attorneys’ fees.

I laud and join in the majority’s morally outraged condemnation of what happened to this young girl. 1 But I question whether the fact that our collective conscience is shocked is a good enough reason for writing an opinion that broadens constitutional remedies in three novel ways. To afford Doe a compen-sable constitutional claim, the majority must *476 first define a hitherto unrecognized and still-vague constitutional right against sexual molestation of underage minors. 2 Second, the majority impute state action to the coach’s conduct, which by no stretch of the imagination was ever undertaken in the scope of a teacher’s pedagogical authority. 3 Third, the majority must strain to reconcile their theory of constitutional supervisory liability with facts that show, at most, negligence by the principal. 4 How far each of these tortuously reasoned steps to liability will be expanded by subsequent caselaw, I cannot predict. But to assert that these propositions were “clearly established” in 1987 is an extravagant overstatement.

What is certain is that the majority’s opinion and result are unnecessary either to vindicate Doe’s rights or to instill in public school administrators an incentive to prevent lecherous escapades by teachers with students. Ordinarily, the heavy guns of constitutional law — particularly a subjective doctrine like substantive due process — should be deployed in service of goals that implicate basic policies of government. The Supreme Court has frequently “rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law.” Collins v. City of Harker Heights, - U.S. -, -, 112 S.Ct. 1061, 1070 , 117 L.Ed.2d 261 (1992) (citing cases). The Court’s reluctance derives from its recognition of the gravity and scope of constitutional decision making:

The Fourteenth Amendment is a part of a Constitution generally designed to allo *477 cate governing authority among the Branches of the Federal Government and between that Government and the States, and to secure certain individual rights against both State and Federal Government. When dealing with a claim that such a document creates a right ..., we bear in mind Chief Justice Marshall’s admonition that “we must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 407, 4 L.Ed. 579 (1819) (emphasis in original). Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that ‘“would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,’” Paul v. Davis, 424 U.S. 693, 701 , 96 S.Ct. 1155, 1160 , 47 L.Ed.2d 405 (1976), quoted in Parratt v. Taylor, 451 U.S. 527, 544 , 101 S.Ct. 1908, 1917 [, 68 L.Ed.2d 420 ] (1981).

Daniels v. Williams, 474 U.S. 327, 332 , 106 S.Ct. 662, 665 , 88 L.Ed.2d 662 (1986).

There is no systemic abuse of institutional power exemplified in this case, because no state agency, school, school superintendent or principal would ever condone what happened to Doe. Similarly, only by ipse dixit does the majority support its belief that Stroud’s conduct was an abuse of state power. He was committing a crime just as surely as if he had stolen Doe’s watch. Ordinarily, a state actor may point to some state policy in support of his actions. A court’s job is to say how that proffered policy stacks up against constitutional protections. Here, there is no policy to be tested. The motive for Stroud’s conduct was crass self-gratification. The Constitution has little to say about state actors who commit ordinary crimes for their own benefit. Compare Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984). That task is better left to statutory and common law. “It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns.” Daniels, 474 U.S. at 333 , 106 S.Ct. at 666 .

Not only is there no broad constitutional purpose to be served by recognizing for Doe’s benefit a constitutional right not to have her bodily integrity compromised by a teacher’s sexual abuse, but the constitutional remedy that the majority strives to assure her is merely redundant of well-established criminal, tort and statutory sanctions. Coach Stroud went to jail for committing statutory rape. Doe has state-law tort claims available against Stroud for assault and battery and intentional infliction of emotional distress. Most significant, perhaps, is her personal Title IX claim against the school district, which, in exchange for use of federal funds, rendered itself potentially liable for this type of sex harassment case. Franklin v. Gwinnett County Public Schools, — U.S. -, 112 S.Ct. 1028 , 117 L.Ed.2d 208 (1992). Doe in fact had a Title IX claim pending in state court when this case was orally argued en banc. 5

The majority’s opinion accomplishes no more than to provide Doe another type of money damage award for the injury she has suffered. Where no larger issue than this is at stake — no issue touching upon fundamental questions of school governance or the authority of the state over its teachers or students — the invocation of a new constitutional right is at best superfluous, at worst mischievous. Nowhere in their opinions do the majority or concurrence acknowledge that the precepts of liability they have announced rest on an untested constitutional theory. Their lack of either circumspection *478 or introspection is curious and contradictory of the Supreme Court’s approach to the troublesome concept of substantive due process:

As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended. Regents of University of Michigan v. Ewing, 474 U.S. 214, 225-226 , 106 S.Ct. 507, 513-514 , 88 L.Ed.2d 523 (1985). The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.

Collins v. City of Harker Heights, — U.S. at-, 112 S.Ct. at 1068. See also Albright v. Oliver, — U.S.-, 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994), (plurality opinion), reiterating this proposition. Justice Scalia further explained the Court’s reticence to lay the imprimatur of a substantive due process right on a claim not textually tied to “liberty” in the fourteenth amendment:

It is an established part of our constitutional jurisprudence that the term “liberty” in the Due Process Clause extends beyond freedom from physical restraint. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923). Without that core textual meaning as a limitation, defining the scope of the Due Process Clause “has at times been a treacherous field for this Court,” giving “reason for concern lest the only limits to ... judicial intervention become the predilections of those who happen at the time to be Members of this Court.” Moore v. East Cleveland, 431 U.S. 494, 502 , 97 S.Ct. 1932, 1937 , 52 L.Ed.2d 531 (1977).

Michael H. v. Gerald D., 491 U.S. 110, 121 , 109 S.Ct. 2333, 2341 , 105 L.Ed.2d 91 (1989) (opinion for four Justices).

The Supreme Court has been true to its word. Apart from developing the amorphous “right of privacy” that underlies the abortion cases, the Court has authored no decision expanding substantive due process rights for many years. 6 Moreover, in analyzing claims of rights that, while unenumerated in the specific guarantees of the Constitution or Bill of Rights, are proffered as “fundamental,” the Court has insisted on a precise definition of the right as a matter of judicial self-discipline. Reno v. Flores, — U.S. -, -, 113 S.Ct. 1439, 1447 , 123 L.Ed.2d 1 (1993); Collins v. City of Harker Heights, *479 — U.S. at -, 112 S.Ct. at 1068. The majority and concurring opinions make no attempt to fulfill this rigorous standard. The core of “liberty” is freedom from bodily restraint. Foucha v. Louisiana, — U.S. -, -, 112 S.Ct. 1780, 1785 , 118 L.Ed.2d 437 (1992). Doe’s “right” not to be seduced by her teacher does not obviously fall within the fourteenth amendment’s assurance that a person’s “liberty” will not be taken without due process of law. Rampant throughout the majority and concurring opinions are various descriptions of what happened to Doe that shed little light on the precise scope of the “liberty interest” that will henceforth be enforceable under § 1983 by her and other public school students.

The majority apparently believe that Doe’s substantive due process right to “bodily integrity” is self-evidently “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Michael H. v. Gerald, D., 491 U.S. at 122 , 109 S.Ct. at 2341 , quoting Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934) (Cardozo, J.). But that argument states a conclusion rather than a reason for inventing a new constitutional doctrine. 7 It is not obvious why this “right” should be more “fundamental” than Doe’s right to her reputation or her right not to be negligently run over by a state employee, neither of which enjoys constitutional protection. See Paul v. Davis, supra. Furthermore, Doe’s right has been protected in state criminal and tort law and by federal statute. 8 The attention 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. 9

Advancing new and expanded theories of “fundamental rights” is always a heady business, gratifying because the judge believes he has served “justice” in the broadest sense. But history has shown that the “Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.” Moore v. East Cleveland, 431 U.S. 494, 544 , 97 S.Ct. 1932, 1958 , 52 L.Ed.2d 531 (1977) (White, J., dissenting). Concretely, the Supreme Court has cautioned against expanding the scope of “liberty” embodied in substantive due process and has advised that the Due Process clause should not be used to constitutionalize ordinary torts. In their zeal to “do justice,” my colleagues of the majority have thrown caution to the winds and, quite unnecessarily, have awarded Doe novel constitutional protection that supplements a variety of legal remedies already available to her. If Doe has a viable constitutional claim, I say, let the Supreme Court say so. 10

I respectfully dissent.

. Nothing could be further from the truth than Judge Higginbotham's assertion that the dissenters in this case see only "casual sex.” Coach Stroud committed a crime for which he has served jail time. But not every state employee who commits a crime while on or around his job necessarily violates the victim’s constitutional rights.

.The Supreme Court has not specifically recognized the substantive due process right or liberty interest of a fifteen year old student in her bodily integrity against "a teacher who uses his authority to sordid sexual ends.” The lower court cases the majority cite for this kind of proposition all trace back to two sources: Ingraham v. Wright, 430 U.S. 651 , 660 n. 12, 97 S.Ct. 1401 , 1406 n. 12, 51 L.Ed.2d 711 (1977), and Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952).

Judge Higginbotham’s concurrence suggests that Doe’s "fundamental right" stems a fortiori from the Supreme Court's decision in Ingraham v. Wright, which held that Fourteenth Amendment liberty interests are implicated by the decision of school authorities to inflict corporal punishment on a student. 430 U.S. at 675 , 97 S.Ct. at 1414. The Court also held that as the demands of procedural due process were adequately met by the common law, no constitutional due process violation occurred. 430 U.S. at 684 , 97 S.Ct. at 1419. Ingraham refused to determine whether a student has a substantive due process right against corporal punishment. With all due respect, it is a long step from deciding the procedural attributes of corporal punishment to enunciating a right to "freedom of bodily integrity against a teacher who pursues sordid ends.” No other court has cited Ingraham for this proposition. Taken literally, Judge Higginbotham's view would seem to constitutionalize any intentional tort committed by a school teacher upon a student, for all conduct may be described post hoc as "abuses of power.” Ingraham did not go so far; it speaks only of punishment.

Rochin enunciated a criminal suspect’s substantive due process "right to bodily integrity” not to have his stomach pumped. While Rochin has frequently been cited by the Supreme Court for Justice Frankfurter's explanation of substantive due process, its precise holding has been significantly undercut by Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989). In Graham , the Court rejected a general substantive due process right against excessive force used on arrestees in favor of a right grounded squafrely in the Fourth Amendment, textually the most specifically applicable constitutional provision. Since Rochin , only in abortion-related cases has the Court spoken of a "fundamental right” related to bodily integrity.

New lower court cases outside the Fifth Circuit have embraced this substantive due process right of students not to be sexually molested by teachers. See Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 722, 727 (3d Cir.1989). Other circuit court decisions, while rejecting supervisory liability of schools for teachers’ molestation of students, have merely assumed arguendo the existence of this liberty interest. In none of them were school supervisors held liable. See, e.g., Jane Doe A. v. Special Sch. Dist. of St. Louis County, 901 F.2d 642, 646-47 (8th Cir.1990); D.T. by M.T. v. Independent Sch. Dist. No. 16, 894 F.2d 1176 , 1186-87 (10th Cir.1990), cert. denied 498 U.S. 879 , 111 S.Ct. 213 , 112 L.Ed.2d 172 (1990); Spann v. Tyler Independent Sch. Dist., 876 F.2d 437, 438 (5th Cir.1989), cert. denied 493 U.S. 1047 , 110 S.Ct. 847 , 107 L.Ed.2d 841 (1990). These lower court cases simply did not consider the question of a fundamental liberty interest.

The majority's recitation of supporting authority, in short, is deceptive. The "clearly established right” not to endure sexual molestation by a teacher is not clear at all.

. See Judge Garza’s and Judge Garwood's dissents.

. See Judge Garwood’s dissent, in which I concur.

. In Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976), the Supreme Court rejected a claim that a defamation action against state officials stated a § 1983 due process claim. The Court pointedly observed ”[I]f the same allegations had been made about [plaintiff] by a private individual, he would have nothing more than a claim for defamation under state law. But, he contends, since [defendants] are respectively an official of city and county government, his action is thereby transmuted into one for deprivation by the state of rights secured under the Fourteenth Amendment.” 424 U.S. at 698 , 96 S.Ct. at 1159 . The Court, unlike the majority here, would have none of it.

. Heavy irony inheres in the majority’s premising Doe's bodily integrity right on the Supreme Court’s abortion cases. The "right of privacy” stated in those cases has been used to attack statutory rape statutes, and three justices would have granted certiorari to rule on that issue. See Michael M. v. Superior Court, 450 U.S. 464 , 491 n. 5, 101 S.Ct. 1200 , 1215 n. 5, 67 L.Ed.2d 437 (Brennan, J., with Justices White and Marshall, dissenting); see also concurring opinion of Justice Blackmun, Id. at 483 , 101 S.Ct. at 1211. See, e.g., State v. Jones, 619 So.2d 418 (Fla.App. 1993) (certifying constitutionality of Florida statutory rape law to State Supreme Court).

. Although all of the states maintain criminal laws against statutory rape, not all of them set the age of consent at the age of fifteen. See Judge Garwood’s dissent. In some of the states, the age of consent is lower. This poses an interesting question: has the majority made a constitutional offense of conduct that in some states is not criminal?

. In his concurrence, Judge Higginbotham suggests that my conclusion here that Doe has no constitutional right is based in part on the availability of other state and federal remedies. See Higginbotham Concurrence at 5. However, that suggestion seriously mischaracterizes my argument. My point is that the majority's ill-founded finding of a "fundamental” right is especially unnecessary where the constitutional remedy is merely redundant of well-established criminal, tort, and statutory sanctions, not that the presence of the latter dictate the absence of the former.

. None of this discussion suggests that the Supreme Court would not ultimately recognize a constitutional "fundamental right” of a young student not to be sexually molested by a teacher in the classroom or on school grounds, or of an older student not to be confronted with a teacher’s sexual demands as a quid pro quo for receiving good grades. But to comport with the Su *480 preme Court’s own above-cited pronouncements, the reason such a "right” is "fundamental" should be clearly articulated; the parameters of the “right” should be carefully and cautiously defined; and the “right” should accomplish a public purpose beyond, simply constitutionalizing tortious conduct. The majority and concurring opinions have done none of these things.