‘‘Assuming arguendo that defendants violated Kipps's constitutional liberty interest in familial association, the resolution of this issue turns on whether the defendants’ actions were 'objectively reasonable.’ ”
How later courts described this case
- ‘‘Assuming arguendo that defendants violated Kipps's constitutional liberty interest in familial association, the resolution of this issue turns on whether the defendants’ actions were 'objectively reasonable.’ ”
- “[T]he threshold for the imposition of such sanctions is high.”
- reh’g en banc denied, 205 F.3d 203 (5th Cir.2000)
Written by the judges who cited it.
The opinion
DeMOSS, Circuit Judge,
specially concurring:
I concur in the result reached by the majority opinion as to all issues.
I write separately to express my view that our decision affirming the district court’s grant of qualified immunity should be based upon the ground that the Kipps-es failed to state a cause of action for the violation of a clearly established constitutional right, rather than upon the ground that Schexnayder’s decision to fire Kipps merely because Kipps’ son decided upon another university was objectively reasonable as a matter of law. Whatever the factual or legal parameters of the amorphous “constitutional liberty interest in familial association” that the majority opinion assumes into existence, I find no *772 support in the case law for the proposition that such a right was clearly established when Kipps was fired or even that such a right is clearly established today. In sum, I agree that the defendants are entitled to qualified immunity as a matter of law, but I would affirm on the much stronger ground that the Kippses failed to state a claim for violation of a clearly established constitutional right.
I write also to express my dismay that the majority has used this opportunity to “comment on a key element” of the defendants’ alternative justification defense, notwithstanding the majority’s disclaimer that such comments are unnecessary to this Court’s disposition and “do not speak” to the district court’s actual ruling on the justification defense. Given the majority’s concession that it need not, and indeed does not, reach the issue, see Majority Opinion at 769 n. 6, I would avoid “commenting” on the law or the facts governing that defense by deleting footnote 6 in the majority opinion. The majority has taken a contrary approach, choosing to interject its own and rather simplistic view of the complex issues raised by the need to harmonize the Supreme Court’s dispositions in Dauberb v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), and Kumho Tire v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167, 1175 , 143 L.Ed.2d 238 (1999). That such an approach is inappropriate is perhaps best illustrated by the majority’s decision to elevate Coach Dykes (as a matter of law and presumably for all future cases) to the status of an expert based upon some perceived change in the law arising from Kumho. Kumho was not decided until after briefing was complete in this case, and there is no adversarial briefing on the import of Kumho. Moreover, the Court’s determination that the defendants are entitled to qualified immunity makes any “comments” on the effect of Kumho immaterial to the Court’s decision. In sum, footnote 6 is nothing but gratuitous dicta which has no place in and forms no part of our decision in this case.