concluding that even if actions of gagging student with a bandana and forcing a student to toilet- train in view of other students are improper or tortious, as a matter of law they are not egregious actions under the Fourteenth Amendment
How later courts described this case
- concluding that even if actions of gagging student with a bandana and forcing a student to toilet- train in view of other students are improper or tortious, as a matter of law they are not egregious actions under the Fourteenth Amendment
- finding teacher’s conduct did not “shock the conscious” where teacher was accused of abuse after gagging a student with a bandana, strapping another to a toilet, and-forcing another to sit with her pants down on a training toilet in front of all of her classmates.
- stating that the “‘key inquiry is not what form the use of force takes but whether the use of force is related to the student’s misconduct at school and for the purposes of discipline.’”
- explaining that the question is “whether the teacher’s allegedly unconstitutional conduct is properly construed as an attempt to serve pedagogical objectives”
Written by the judges who cited it.
The opinion
ALICE M. BATCHELDER, Circuit Judge,
concurring in part and concurring in the judgment.
I agree with much of Judge Huck’s thoughtful opinion. I write separately be *417 cause I agree with the partial dissent that if R.G. was bound and gagged as Brant claims, that was a grossly disproportionate response to his spitting, and because I agree that a reasonable jury could infer from that evidence that Kowalski acted with malice.
And while I also agree with the dissent that, in assessing the injury requirement, this court should consider the peculiar difficulties faced by children such as R.G. who are non-verbal and severely disabled, I nevertheless concur in the judgment because there is simply no evidence of any injury in this case. Nor, as the district court rightly noted, is there evidence of distress or anxiety that might imply injury. Cf. H.H. ex rel. H.F. v. Moffett, 335 Fed.Appx. 306, 308 (4th Cir.2009) (“H.F. began to notice that her daughter[, who had limited verbal capacity,] was becoming increasingly distressed, anxious, and angry about her experiences [at school].”). In fact, the record does not contain a single complaint by any parent.
The lack of injury is dispositive. And I accordingly concur in part and concur in the judgment.