Reply Brief — S. B., on Behalf of Her Minor Daughter, S. B., Petitioner v. Jefferson Parish School Board, et al.

Supreme Court briefDec 5, 2023

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No. 23-440

In The

Supreme Court of the United States

S.B., on behalf of her minor daughter, S.B.,

Petitioner,

JEFFERSON PARISH SCHOOL BOARD, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY BRIEF FOR THE PETITIONER

Chris Edmunds

CHRIS EDMUNDS LAW

OFFICE, LLC

4937 Hearst St., Ste. 2F

Metairie, LA 70001

(504) 314-0034

Jaba Tsitsuashvili

Counsel of Record

Patrick Jaicomo

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jtsitsuashvili@ij.org

Counsel for Petitioner

Table of Contents

Page

Reply in Support of the Petition ............................... 1

Respondents confirm both circuit

splits, on which ten circuits are

entrenched, and the first of which

warrants summary reversal under

Zinermon. ................................................... 3

II.

The second question presented is

squarely and properly before the

Court;

respondents’

effort

manufacture a vehicle problem fails. ........ 6

III.

All constitutional scrutiny of corporal

punishment is eliminated in the Fifth

Circuit, and its three states account

for half of such violence in the

country. ..................................................... 12

Conclusion ................................................................ 13

Table of Authorities

Page(s)

Cases

Carlson v. Green,

446 U.S. 14 (1980)................................................. 9

Doe v. Taylor Indep. Sch. Dist.,

15 F.3d 443 (5th Cir. 1994) (en banc) .................. 4

Fee v. Herndon,

900 F.2d 804 (5th Cir. 1990)............................. 7, 8

Hassan v. Lubbock Indep. Sch. Dist.,

55 F.3d 1075 (5th Cir. 1995)................................. 4

Ingraham v. Wright,

430 U.S. 651 (1976)............................................... 5

J.W. v. Paley,

81 F.4th 440 (5th Cir. 2023) ............................. 8–9

Jefferson v. Ysleta Indep. Sch. Dist.,

817 F.2d 303 (5th Cir. 1987)................................. 4

Safford Unified Sch. Dist. No. 1 v. Redding,

557 U.S. 364 (2009)............................................... 5

Shoop v. Cassano,

142 S. Ct. 2051 (2022)........................................... 5

T.O. v. Fort Bend Indep. Sch. Dist.,

2 F.4th 407 (5th Cir. 2021) ................3, 4, 8, 12, 13

Yee v. City of Escondido,

503 U.S. 519 (1992)........................................... 8, 9

iii

Youakim v. Miller,

425 U.S. 231 (1976)..................................... 8, 9, 11

Zinermon v. Burch,

494 U.S. 113 (1990)..........................1, 3, 4, 5, 6, 11

Constitutional Provisions

U.S. Const. amend. IV ..................................... 2, 6–12

Statutes

42 U.S.C. 1983 .................................................. 5, 6, 12

Reply in Support of the Petition

The petition squarely presents two constitutional

questions on which ten circuits are admittedly split.

The Fifth Circuit’s answers to those questions are

entrenched, and they uniquely eliminate all

constitutional scrutiny of public-school children’s

excessive corporal punishment claims. The questions

are important, with the safety and constitutional

rights of millions of children in the balance—

particularly in the claim-eliminating Fifth Circuit,

where federal data show half of such violence occurs.

Respondents’ brief in opposition confirms both circuit

splits, offering no reason to avoid resolving them.

1. Respondents confirm both circuit splits, on

which ten circuits are entrenched.

The first question presented concerns the Fifth

Circuit’s nine-to-one outlier rule eliminating all

constitutional scrutiny of corporal punishment with

any ostensibly pedagogical purpose, no matter how

excessive or unreasonable. Respondents cast no doubt

on this split. They point to the cognizability of

constitutional claims in the Fifth Circuit in other

contexts, but that is irrelevant to the split the panel

below identified regarding the elimination of claims

in this context. Indeed, footnote 13 of the petition

already rebutted respondents’ effort. Tellingly,

respondents do not even cite Zinermon v. Burch, 494

U.S. 113 (1990), the controlling precedent that

warrants summary reversal of the Fifth Circuit’s

outlier rule.

The second question presented concerns whether

excessive corporal punishment claims sound in

substantive due process or the Fourth Amendment.

Respondents admit that the same ten circuits are

entrenched on this split—with eight circuits

(including the Fifth) rejecting the Fourth

Amendment’s application to such claims of excessive

force and two circuits accepting it.

2. Facing two acknowledged circuit splits,

respondents manufacture concerns about this case as

a vehicle for resolving the second one—the

entrenched split between substantive due process and

the Fourth Amendment. Their effort fails. First, the

Fifth Circuit’s rejection of Fourth Amendment claims

in this context is unambiguous and entrenched, so it

would have been futile for petitioner to press in

argument the Fourth Amendment claim pleaded in

her operative complaint. Second, that respondents

think they can win under either constitutional

standard is not a reason to avoid deciding which

constitutional standard governs—particularly in

these circumstances, where all constitutional scrutiny

is eliminated, leaving the merits of petitioner’s

excessive violence claims unaddressed.

3. Finally, respondents’ dismissal of the

importance of the issues is unavailing. Respondents’

callous indifference to the three instances of violence

inflicted on petitioner’s daughter, a vulnerable

eleven-year-old girl with nonverbal autism, is

emblematic of federal data detailed by petitioner’s

amici showing that half of all punitive violence

against public-school children occurs in the three

states of the Fifth Circuit, where constitutional

scrutiny of such violence is uniquely eliminated.

In short, this Court’s resolution is needed as to

both important constitutional questions presented

regarding state violence against children.

Respondents confirm both circuit splits,

on which ten circuits are entrenched, and

the first of which warrants summary

reversal under Zinermon.

Ten circuits are avowedly split on both questions

presented. Pet. 18, 28–29. Respondents confirm both

splits. And respondents do not even cite Zinermon v.

Burch, the controlling precedent that warrants

summary reversal of the Fifth Circuit’s outlier

position on the first question presented.

1. a. The first question presented concerns the

Fifth Circuit’s outlier rule eliminating all

constitutional scrutiny of corporal punishment with

any ostensibly pedagogical purpose, no matter how

excessive or unreasonable. As the Fifth Circuit puts

it, that court “clearly protect[s] disciplinary corporal

punishment from constitutional scrutiny.” T.O. v.

Fort Bend Indep. Sch. Dist., 2 F.4th 407, 416 (5th Cir.

2021). Accordingly, petitioner’s claims of excessive

corporal punishment were dismissed out of hand,

which the panel below acknowledged would not be the

case in other circuits. Pet. App. 12a–13a.

As the petition explains, the panel recognized this

split, nine circuits are on the other side, five circuits

expressly criticize the Fifth Circuit’s rule, and Fifth

Circuit judges have unsuccessfully called for it to be

fixed and harmonized with this Court’s precedent.

Pet. 18, 20–21. Judge Wiener most recently, but

unsuccessfully, called on the court to “fix the error

before the Supreme Court decides to fix it for us.”

T.O., 2 F.4th at 421 (Wiener & Costa, JJ., specially

concurring).

Respondents’ effort to downplay this known split

regarding

ostensibly

pedagogical

corporal

punishment fails. They point to the cognizability of

constitutional claims in other contexts, namely those

that do not involve violence, do not involve

punishment, or do not implicate any ostensibly

pedagogical purpose. BIO 13 (citing Hassan, Doe, and

Jefferson). Of course, the cognizability of claims in

other contexts is irrelevant to the split the panel

identified regarding the elimination of claims in this

context. If anything, the Fifth Circuit’s distinction

between cognizable and eliminated claims proves the

point. Indeed, footnote 13 of the petition anticipated

and rebutted respondents’ effort to muddy the waters,

explaining that the Fifth Circuit means what it says

about elimination of claims like petitioner’s, as

illustrated by eight other examples, and as contrasted

with nine other circuits. Pet. 15–18 & n.13.

b. The petition argues that resolution of this first

split should be by summary reversal because, as

recognized by Fifth Circuit judges and other circuits,

including most explicitly the Fourth and Tenth, the

Fifth Circuit is not only wrong to eliminate all

constitutional scrutiny in this context, but also in how

it does so. Pet. 23–26. Respondents do not cite, let

alone distinguish, Zinermon v. Burch, which

petitioner cites for this argument.

Specifically, the Fifth Circuit eliminates federal

substantive due process claims arising from excessive

corporal punishment by pointing to potential state

remedial procedures. Pet. 13–14, 19–20; Pet. App.

11a. That is “obviously wrong and squarely foreclosed

by [this Court’s] precedent.” Shoop v. Cassano, 142 S.

Ct. 2051, 2057 (2022) (Thomas & Alito, JJ., dissenting

from denial of certiorari). Zinermon explains that

state remedial procedures can only eliminate some

federal procedural due process claims; they cannot

eliminate any federal substantive due process (or

other substantive) claims—which claims of excessive

violence obviously are. 494 U.S. at 124–126; Pet. 19–

20, 25–26. Zinermon is both controlling and faithful

to the text, history, and purpose of § 1983. Pet. 22–24

& n.14.

While they ignore Zinermon, respondents make a

last-ditch effort to keep this Court from unwinding

the Fifth Circuit’s legal error by positing that under

Ingraham v. Wright, 430 U.S. 651 (1976), the Fifth

Circuit is correct to hold that if some “pedagogical

function” can be put forth, no amount of corporal

punishment is too much for the law to stomach. BIO

13. Unfortunately for respondents, the Ingraham

passage that they quote says the opposite. Citing

Blackstone and common law, Ingraham explains that

“excessive” or “unreasonable” corporal punishment

has historically been subject to judicial review. BIO

11; see also Safford Unified Sch. Dist. No. 1 v.

Redding, 557 U.S. 364, 399 n.7 (2009) (Thomas, J.,

concurring in the judgment in part and dissenting in

part). The petition says the same, and it explains that

§ 1983 subjects such violence to federal constitutional

scrutiny—which, per Zinermon, cannot be eliminated

by state remedial procedures. Pet. 22–24 & n.14.

In short, the first question presented raises an

acknowledged and entrenched nine-to-one circuit

split, and the Fifth Circuit’s outlier rule should be

summarily reversed under this Court’s wellestablished and historically-backed holdings.

2. Turning to the second question presented,

respondents concede the entrenched circuit split it

raises—whether excessive corporal punishment

claims sound in substantive due process or the Fourth

Amendment. BIO 3 n.2. Like seven others, the Fifth

Circuit rejects the Fourth Amendment’s application

to claims of excessive force in this context, while two

circuits accept it. Pet. 27–29.

Respondents’ confirmation that ten circuits are

split on this constitutional question merits this

Court’s resolution. As explained next, respondents

fail to manufacture a vehicle problem as to the second

split. In any event, because any purported vehicle

concerns target only the second question presented,

they cannot stand in the way of this Court summarily

reversing as to the first question presented.

II.

The second question presented is

squarely and properly before the Court;

respondents’ effort to manufacture a

vehicle problem fails.

Respondents admit that ten circuits, including the

Fifth, have decided whether the Fourth Amendment

applies to claims of unconstitutionally excessive

corporal punishment, and that they are split on the

question, with two saying yes but most opting for

substantive due process. BIO 3 n.2. So, in

respondents’ words, any effort by petitioner below to

argue the Fourth Amendment claim pleaded in her

operative complaint would “run headlong into the

admonition found in Fee v. Herndon, 900 F.2d 804[,]

810 (5th Cir. 1990) that ‘the paddling of recalcitrant

students does not constitute a [F]ourth [A]mendment

search or seizure.’” BIO 20. Yet respondents posit that

this Court should avoid the split because petitioner

chose not to futilely run headlong into the Fifth

Circuit’s unambiguous rejection of her Fourth

Amendment claim. This effort to manufacture a

vehicle problem fails. So does respondents’ desire to

avoid review because they think they will ultimately

win under either constitutional standard—which the

Fifth Circuit’s rules have prevented the courts below

from reaching. This Court should resolve the split and

remand for application of the correct constitutional

standard in the first instance.

1. a. As respondents concede, the circuits are in

acknowledged conflict over the second question

presented—whether claims of unconstitutionally

excessive corporal punishment sound in substantive

due process or the Fourth Amendment. BIO 3 n.2; Pet.

28–29. This, like the first question presented, is a

question of law that currently gets geographically

disparate

treatment

under

two

outcomedeterminative standards. Pet. 27–35.

b. But respondents try to dodge review of this split

by (1) falsely implying that petitioner’s operative

complaint does not plead a Fourth Amendment claim,

BIO 1 (but see Pet. App. 56a (count eight)); 1 and (2)

wrongly asserting that because petitioner did not

press her futile Fourth Amendment claim at the Fifth

Circuit (which expressly says the Fourth Amendment

does not apply), this Court should not resolve the

developed and entrenched circuit split on this issue,

BIO 14–20.

As the petition explains, this Court’s “prudential”

assessment of whether to review an argument not

pressed or passed upon below can be based simply on

its futility below. Pet. 36–37 (citing Yee, Youakim).

The Fourth Amendment question here qualifies. In

addition to respondents’ admission that the Fifth

Circuit rejects the Fourth Amendment’s application

to corporal punishment under Fee v. Herndon, that

court keeps doubling down on that rule. The Fifth

Circuit will not consider Fourth Amendment claims

in this context because doing so would “‘eviscerate

[the] circuit’s rule * * * prohibiting substantive due

process claims’ stemming from the same injuries.”

T.O., 2 F.4th at 415 (citation omitted). Those holdings

and admonitions were reinforced in J.W. v. Paley, 81

F.4th 440 (5th Cir. 2023), which made a point of

ensuring that a great range of circumstances get

swept up in a broad definition of pedagogical corporal

Respondents also oddly claim that petitioner “does not

allege that the incidents shock the conscience for purposes of”

substantive due process. BIO 2 n.1 But that allegation was, to

state the obvious, a central component of the argument and

decision at the Fifth Circuit, where petitioner argued

unsuccessfully that she was not subject to the Fifth Circuit’s

claim-eliminating rule and that the court should assess whether

the violence against her daughter is, as petitioner maintains,

conscience-shocking. The panel simply did not answer yes or no,

because it adhered to its claim-eliminating rule. Pet. App. 12a.

punishment for which all constitutional claims are

eliminated.

In short, a Fourth Amendment claim would have

been clearly futile below, and review by this Court is

well within its prudential norms, given the clear,

entrenched, and articulated nature of the ten-circuit

split on this question of law. Pet. 27–35.

c. Respondents make much of the “exceptional

circumstances” gloss this Court puts on that

prudential decision, BIO 14–18, but they ignore the

meaning this Court gives that phrase in this context.2

It is “not inflexible.” Youakim v. Miller, 425 U.S. 231,

234 (1976). “[E]xceptional cases” in this context are

just those “where reasons of urgency or of economy

suggest the need to address the unpresented question

in the case under consideration.” Yee v. City of

Escondido, 503 U.S. 519, 535 (1992). It is based on a

desire to have “lower court opinions squarely

addressing the question,” so this Court does not do so

first. Id. at 538. And it considers whether the issue is

“squarely presented,” “fully briefed,” “important,” and

“recurring,” and whether “interests of judicial

administration will be served by addressing the issue

on the merits.” Carlson v. Green, 446 U.S. 14, 17 n.2

(1980).

These considerations are satisfied as to the second

question presented:

2 Respondents incorrectly rely on Rule 14.1(a). BIO 16–17.

That rule concerns this Court’s consideration of issues absent

from questions presented. Here, the Fourth Amendment split is

explicitly raised in petitioner’s second question presented. Pet. i.

- Because the Fifth Circuit’s elimination of all

constitutional scrutiny in this context clearly needs to

be reversed under the petition’s first question

presented, considerations “of economy” and “judicial

administration” warrant deciding now, under the

second question presented, what standard the Fifth

Circuit should apply as it finally begins assessing

these claims. Pet. 35.

- Many “lower court opinions squarely address[]

the question,” so there is no risk that this Court would

be the first. Ten circuits have picked one of the two

sides. Pet. 28–29. As detailed in the petition, the

Ninth Circuit surveyed such decisions and this

Court’s jurisprudence to carefully choose its Fourth

Amendment side of the split. Pet. 32–34.

- The issue and the split are “squarely presented”

and “fully briefed” in the petition. Pet. i, 26–35.

- The issue is “important” and “recurring.” The

level of protection children get from state violence is

obviously vital. The petition lists a litany of cases

from nearly every circuit where the constitutional

standard might make a world of difference. Pet. 15–

17, 29–31. As detailed in the next part, petitioner’s

amici explain that corporal punishment is a recurring

national issue, especially in the Fifth Circuit, where

all constitutional scrutiny is eliminated, and where

establishing the correct constitutional standard upon

reversal of that elimination is crucial.

In short, the split between substantive due process

and the Fourth Amendment raised by the second

question presented is developed and ready for this

Court’s resolution. Alternatively, after summarily

reversing as to question one, this Court can do what

it did in Youakim as to question two: vacate and

remand for the Fifth Circuit to determine in the first

instance whether substantive due process (properly

defined, per Zinermon) or the Fourth Amendment

applies. But the losing side will come back for

resolution of this legal question, so it should be

resolved now.

2. What does not need to be resolved now is how

the facts of this case shake out under either standard.

Because the Fifth Circuit eliminates all constitutional

scrutiny of excessive corporal punishment claims, no

court has done a law-to-facts application; the lower

courts should, as usual, do it in the first instance after

this Court sets the governing constitutional standard.

Respondents think they will win under either

standard, 3 so they urge the Court to deny review. BIO

4–6. This hail mary (which respondents mistakenly

dub “constitutional avoidance,” BIO 5) is not the type

of factbound consideration that controls whether

certiorari is granted or denied, especially where no

court has yet passed on that merits question. Rather,

this Court resolves conflicting legal standards. This

case presents two.

Respondents cannot have their cake and eat it too:

They claim they can win under every standard, but

they are desperate to avoid having any court assess

their violence under any standard.

3 Petitioner disagrees, under either standard.

Under this Court’s established considerations, it

should take the second question presented and

resolve the entrenched split as to whether claims of

excessive corporal punishment sound in substantive

due process or the Fourth Amendment. It need not

resolve how application of that standard shakes out

in this case, as no court has yet done that law-to-facts

analysis because the Fifth Circuit’s rules prevent it.

III.

All constitutional scrutiny of corporal

punishment is eliminated in the Fifth

Circuit, and its three states account for

half of such violence in the country.

The issues presented are vitally important. They

implicate children’s fundamental constitutional right

to be free from excessive state violence, as well as

their right to seek judicial redress under § 1983. Pet.

22–26 (explaining the history and precedent in which

those rights are grounded). The Fifth Circuit has

eliminated those rights whenever the violence is

“punitive” with a “pedagogical” veneer. Judge Wiener

recently expressed his dismay, based on “thirty years

of watching this rule being applied to the detriment of

public school students in Texas, Mississippi, and

Louisiana.” T.O., 2 F.4th at 421 (Wiener & Costa, JJ.,

specially concurring).

Yet the rule remains, to devastating effect. Per

petitioner’s amici: “According to the most recent

publicly available data, of the total number of

children subjected to corporal punishment in public

schools, half of those children live in the Fifth Circuit.

* * * Children with special needs—like the young girl

with autism central to this case—minority children,

and boys suffer disproportionately in schools in the

Fifth Circuit.” Amici 13, 14. The “effects of the Fifth

Circuit’s decision to remove the constitutional shield

from children in public schools are playing out in front

of our eyes.” Amici 16. With that court consistently

refusing to fix its dangerous error, including in this

case, the time has come for “the Supreme Court * * *

to fix it,” for the sake of constitutional integrity and

the safety of millions of vulnerable children. T.O., 2

F.4th at 421 (Wiener & Costa, JJ., specially

concurring).

Conclusion

The petition should be granted.

Respectfully submitted,

December 5, 2023