# Opposition Brief — Newkirk ex rel. Newkirk v. Fink

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 943

## Text

nN {supreme Court, U.S.
: FILED
No. 95-379 OCT 1 1995
CLERK
In The
Supreme Court of the Anited States
s

October Term, 1995

JASON NEWKIRK, by Next Friends, Daniel Newkirk and
Nancy Newkirk; DANIEL NEWKIRK; NANCY NEWKIRK,

Petitioners,
VS.

MICHAEL FINK, individually and in his official capacity as
Counselor of East Lansing Public Schools,

Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

LISA L. SWEM
Counsel of Record
DONALD J. BONATO
THRUN, MAATSCH AND NORDBERG, P.C.
Attorneys for Respondent
501 South Capitol Avenue - Suite 500
Lansing, Michigan 48933
(517) 484-8000

October 11, 1995

i
COUNTER-STATEMENT OF QUESTIONS PRESENTED

I. Whether this Court should exercise its discretion to grant
certiorari where Petitioners have failed to: raise any important
constitutional issue not previously decided by this Court, identify
any conflict among the Circuit Courts regarding an issue germane
to this case, appeal any statutory cause of action, or establish that
the lower courts erred in their decisions; and where Respondent is
entitled to qualified immunity.

II. Whether the constitutional right of privacy extends to the
daily operations of schools to require educators to obtain
informed written consent from the student's parents before
meeting with the student pursuant to a teacher referral.

ii
LIST OF PARTIES

Petitioners Jason Newkirk, Daniel Newkirk and Nancy
Newkirk are individuals.

Respondent Michael Fink is an individual. He is being sued
in both his individual capacity and in his official capacity as a
guidance counselor in the East Lansing Public Schools, East
Lansing, Michigan.

The following were also parties to the proceedings in the
United States District Court for the Western District of Michigan
and in the Ingham County Circuit Court for the State of Michigan:
the East Lansing Public Schools; Dr. William Mitchell,
individually and in his official capacity as the superintencient of
the East Lansing Public Schools; Sally McClintock, individually
and in her official capacity as the principal of the Whitchills
Elementary School; Jackie Killingsworth, individually and in her
official capacity as a classroom teacher at the Whitehili-
Elementary School; Ann Bloomquist, individually and in h«z
official capacity as a music teacher at the Whitehills Elementary
School; Creative Therapeutics, Inc., a New Jersey corporation;
and Dr. Richard Gardner, individually. '

Petitioners incorrectly assert that the East Lansing Public
Schools and its superintendent, principal and teachers were
parties to the proceedings in the United States Court of Appeals for
the Sixth Circuit. Pet. at ii.2 These parties were dismissed
pursuant to stipulation and order during the District Court

1. Dr. Gardner developed “The Talking, Feeling and Doing Game,” which is
produced and sold by Creative Therapeutics, Inc.

2. The following abbreviations designate the following pleadings/records:
Compl. - Complaint; Pet. - Petition; Pet., App.- Appendix to Petition; Resp., App. -
Respondent’s Appendix; R. - Record on Appeal.

Ts

iii

proceedings. Pet., App. D. Mr. Fink was the only defendant-
appellee in the appeal to the United States Court of Appeals for the
Sixth Circuit. See Pet., App. at E-2 (“plaintiffs appeal the
judgment on the right-to-privacy count as to the guidance
counselor only”).

iv

TABLE OF CONTENTS

Page
Counter-Statement of Questions Presented ............ i
REN Si voneovasdha sa etesedes sds senccenns li
Bg PT eT eee ore errr Te rr ee iv
PE oa EK e0s i vadarebueusees buaueees Vv
SEE. 6 v0 de-deeadaevesakebes’ bhateabeas 2
GUMROUNONE OE FONEOTIOUION ono ccc cciccncecccccsecceess 4
Constitutional and Statutory ProvisionsInvolved ...... 4
Counter-Statement of the Case ................00000. 5
Summary Of the Argument ........ccccccccccccccces 7
Reasons for Denyingthe Writ ..................005: 8

I. Petitioners Have Not Identified Any Legitimate

Basis for this Court to Exercise Its Discretion to
CGE: F058 6 bee Se skade rose ease ces 8

A. This Case Does Not Involve an Important or
Unresolved Constitutional Issue. ......... 9

B. No Conflict with the Circuit Courts Have
ee ue we 11

Vv

Contents

Page

C. No Cause of Action Based on Federal or State

Statutory Provisions Has Been Pled,

Appealed, or Identified as Conflicting with
I ook a cn ckne vd nceecaccs:. 12

D. Respondent Is Entitled to Qualified Immunity.
66 eREE SG bhOR EVAR BLES eddie ks 13

II. The Decisions of the Lower Courts Are Not
GIN 65506040 asck viseee ete 14

A. Tort Allegations Should Not Be
Constitutionalized. .................... 15

B. Federal Courts Should Not Interfere with the
Operations of the Public Schools. ......... 16

C. The Constitution Should Be Interpreted with
Common Sense. ..............0.0005.., 18
RI on 6h ces yas arestaee coe 21

TABLE OF CITATIONS
Cases Cited:

Acton v. Vernonia Sch. Dist. 47J, 796 F. Supp. 1354 (D. Or.

ape EE EE Pee eh Da ei MD ald ctx Nr bey 15

Anderson v. Creighton, 483 U.S.635 (1987) ........... 14

vi

pik Lee pitti Ee eal

Contents

Page

Arnold v. Board of Educ., 880 F.2d 305 (11th Cir. 1989) .. 11,12

Bahr v. Jenkins, 539 F. Supp. 483 (E.D. Ky. 1982) ...... 18
Baker v. McCollan, 443 U.S. 137 (1979) .............. 16
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) .. 9
Collins v. Harker Heights, 503 U.S. 115(1992) ........ 16
Daniels v. Williams, 474 U.S.327 (1986) ............. 16
Davis v. Scherer, 468 U.S. 183 (1984) ................ 14
Epperson v. Arkansas, 393 U.S. 97 (1968) ............. 17
Goss v. Lopez, 419 U.S. 56S (1975S) ..cccccccccccccces 20
Harlow v. Fitzgerald, 457 U.S. 800(1982) ............ 14
Ingraham v. Wright, 430 U.S.651(1977) ............. 16
Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 10
Milliken v. Bradley, 418 U.S. 717 (1974) .............. 16, 17
Mitchell v. Forsyth, 472 U.S.511 (1985) .............. 14
Moore v. City of East Cleveland, 431 U.S.494 (1977) .... 11

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............ 9,10,17

vii

Contents
Page
Parham v. J.R., 442 U.S. 584 (1979) ......... eee e eee: 10
Paul v. Davis, 424 U.S. 693 (1976) ........- eee ee eeee 16
Pierce v. Society of Sisters, 268 U.S.510(1925) ........ 10
Prince v. Massachusetts, 321 U.S. 158 (1994) .......... 11
Santosky v. Kramer, 455 U.S.745 (1982) ...........5.: 10
Stanley v. Illinois, 405 U.S. 645 (1972) ..........0008- 10
Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S.
DEPEND Heeb vb dwescdsnecnadeve dene csesecensc 17
Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995)

POP OTe To TET TT TTT TUTTLE ETT ee. 9,10, 15,20
Wood v. Strickland, 420 U.S.308 (1975) ..........+45. 18
Statutes Cited:

BE es LEED a vin cccncncesdccdeceseceesedcenssa 2,13
SEU OE UMEEED Sie vccccducectcscesecsesceades 4
Lik fod S| Terre rrrTrT rrr rT rr rr rrr 4,16
Mich. Comp. Laws Ann. § 330.1750 (West 1992) ....... 19

Mich. Comp. Laws Ann. § 600.2165 (West 1989) ....... 19

Contents

United States Constitution Cited:

PRONE onan cvebnuneseneuscheseueaedens

PD >.

l

No. 95-379

In The

Supreme Court of the Anited States

tp
October Term, 1995

JASON NEWKIRK, by Next Friends, Daniel Newkirk and
Nancy Newkirk, DANIEL NEWKIRK; NANCY NEWKIRK,

Petitioners,
vs.

MICHAEL FINK, individually and in his official capacity as
Counselor of East Lansing Public Schools,

Respondent.
On Petition for Writ of Certiorari to the

United States Court of Appeals
for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent, Michael Fink, respectfully requests that
this Court deny the Petition for Writ of Certiorari submitted by
the Petitioners, Jason Newkirk, Nancy Newkirk, and Daniel
Newkirk.

2

OPINIONS BELOW

On July 8, 1991, Petitioners brought suit in the United States
District Court for the Western District of Michigan against the
East Lansing Public Schools, William Mitchell (superintendent),
Sally McClintock (principal), Jackie Killingsworth (classroom
teacher), Ann Bloomquist (music teacher), and Michael Fink
(guidance counselor). Count I of the complaint alleged a
violation of Petitioners’ constitutional right to privacy. Count II
alleged a violation of the Protection of Pupil Rights Amendment
(“P.P.R.A.”), 20 U.S.C. § 1232h. Counts III through VII alleged
various pendant state law claims, which were dismissed by the
District Court three weeks after the complaint was filed. Pet.,
App. F.

Petitioners subsequently refiled the following claims in the
Ingham County (Michigan) Circuit Court: (1) violation of the
right to privacy under the Michigan Constitution, (2) tortious
invasion of privacy, (3) intentional infliction of emotional
distress, (4) medical malpractice, (5) negligence, and (6)
products liability. Ingham County Circuit Court No. 92-72034-
AZ. Extensive discovery took place in the state case, including
the depositions of the parties (seven), lay witnesses (nine), and
expert witnesses (seven). In the midst of discovery, but prior to
the filing of dispositive motions, all defendants except
Respondent were dismissed pursuant to stipulation and order. No
attendant settlement documents were filed. Following discovery,
the state court dismissed Petitioners’ remaining claims and
entered final judgment in Respondent’s behalf. Resp., App. A.
Petitioners did not exercise their appeal of right from final
judgment in the state case, and the deadline for appeal has
expired.

On March 31, 1993, the District Court granted partial
summary judgment for all defendants, dismissing Count I of the

3

complaint (constitutional privacy right). Pet., App. A. Nearly
two years after filing their complaint and almost four months
after summary judgment on the privacy claim, Petitioners sought
leave to amend their complaint to expand the constitutional
privacy claim brought in the original complaint to a “due process
and constitutional right of privacy” claim, and to add a claim for
violation of parental liberty and First Amendment free exercise
rights. R. 649. The District Court denied Petitioners’ motion to
amend. Pet., App. H.

The District Court later dismissed Count II of the complaint
(violation of the P.P.R.A.). Pet., App. B. Petitioners then filed a
motion to alter or amend judgment, which was denied for Count I
(privacy) and granted for Count II (P.P.R.A.). Pet., App. C.
However, by stipulation and order filed on March 28, 1994, the
District Court dismissed Count II (P.P.R.A.) as to all parties.
Petitioners also stipulated to dismiss from the federal litigation
all defendants, except Respondent. Pet., App. D. No attendant
settlement documents were filed.

This litigation was not brought solely “against the school
district and counselor,” but also against the school
superintendent, principal, classroom teacher, music teacher,
Creative Therapeutics, Inc., and Dr. Richard Gardner. Compare
Pet. at 4 with Pet. at ii. Contrary to Petitioners’ assertion, the
District Court did not hold that there was no constitutional
violation of parental rights to “even see the records.” Compare
Pet. at 4 with Pet., App. B. No cause of action was ever pled
relative to Petitioners’ records request.

Petitioners appealed to the United States Court of Appeals
for the Sixth Circuit only as to Respondent. Although the appeal
was untimely, the District Court granted Petitioners’ motion to
extend time for filing notice of appeal. The Sixth Circuit affirmed

4

the District Court’s rulings, without opinion, as to the grant of
summary judgment on the privacy count and the denial of the
motion to amend complaint. Pet., App. E.

STATEMENT OF JURISDICTION

The jurisdiction of this Court for review by Petition for Writ
of Certiorari is invoked under 28 U.S.C. § 1254(1). Petitioners
seek review of a decision made by the Sixth Circuit Court of
Appeals on June 13, 1995, which affirmed the District Court’s
grant of summary judgment in favor of Respondent regarding
Petitioners’ constitutional privacy claim. Because Petitioners
have not asked this Court to review the District Court’s denial of
their motion to amend complaint, this Court does not have
jurisdiction over Petitioners’ “due process” and “parental
liberty” claims which were presented in the proposed amended
complaint. R. 694.

CONSTITUTIONALAND STATUTORY
PROVISIONS INVOLVED

As pled in their complaint, Petitioners’ privacy claim is
based on the constitutional and statutory provisions listed below
and fully set forth in Respondent’s Appendix D.

Constitutional Provisions

U.S. Const. art. I, § 9, cl. 3.

U.S. Const. amends. I, IV, V, IX, and XIV.

Statutory Provisions

42 U.S.C. § 1983.

2
COUNTER-STATEMENT OF THE CASE

In October 1989, Jason Newkirk’s teacher, Mrs.
Killingsworth, contacted Nancy Newkirk to discuss concerns
about Jason. Mrs. Killingsworth recommended that Jason see
Mr. Fink, the school guidance counselor. Compl., 418. Mrs.
Killingsworth was concerned because Jason had been found
playing with matches and was having difficulty socializing with
other children. Compl., 423. During this discussion, Mrs.
Newkirk told Mrs. Killingsworth that Jason could see Mr. Fink to
“play games.” Compl., { 20. Petitioners have neither alleged nor
produced evidentiary support that Mr. Fink heard from either
Mrs. Newkirk or Mrs. Killingsworth about any “conditions” for
seeing Jason. See contra Pet., 3.

Shortly after her discussion with Jason’s mother,
Mrs. Killingsworth completed a “Referral to Child Guidance
Consultant” form. Compl., 21; Resp., App. C. This form is
dated November 3, 1989, and states, in pertinent part:

Jason is an angry child. He needs to talk,
identify his anger and how to talk about his
feelings and concerns. Jason needs a good
friend. Example: If he has a good day. What
made it go well —

Resp., App. C. With Mrs. Newkirk’s knowledge, Mr. Fink met
with Jason pursuant to Mrs. Killingsworth’s referral.

Later that month, Mr. Fink talked with Daniel Newkirk about
Jason’s school difficulties. Petitioners allege that Mr. Newkirk
“expressly forbade Mr. Fink to counsel Jason.” Compl., { 25.’

3. The District Court noted “It is, at best, a debatable issue whether Mr.
& Mrs. Newkirk did not consent to counseling. However, for purposes of this
{summary judgment] motion, I assumed they did not consent.” Pet., App. at A-
13, 0.6.

6

Mr. Fink nonetheless understood Mr. Newkirk’s response to
permit him to meet with Jason. Pursuant to the teacher’s referral,
Mr. Fink met with Jason once a week to play checkers, pick-up
sticks, the “Operation” game, and indoor basketball and soccer.
Mr. Fink twice played “The Talking, Feeling and Doing Game”
for no longer than 15 minutes and once read from The Kids’ Book
of Questions.

Petitioners have no basis to claim that they became aware of
Mr. Fink’s meetings with Jason only “after several months” and
after they had “demanded to know what was happening at
school.” Pet. at 3. Petitioners acknowledge that Mrs. Newkirk
had told Mrs. Killingsworth that Jason could meet with Mr. Fink
“to play games.” Compare Pet. at 3 with Compl.,{ 20. There is
neither an allegation nor evidentiary support that Petitioners “on
several occasions” during the school year made inquiries to
Mr. Fink or “demanded to know what was happening at school.”
Pet. at 3.

Similarly, there is no evidence that Mr. Fink either refused to
cooperate with Petitioners’ “orders” not to continue meeting with
Jason or disregarded their request for Jason’s school records. Pet.
at 4. Petitioners removed Jason from school in the midst of the
following school year because the principal denied their request
to have Jason exempt from the “conflicts resolution” curriculum
utilized in his social studies class. Pet., App. at A-3 and A-17;
Compl., { 41 (Jason “was subsequently removed . . . due to the
school’s refusal to exempt him ...”) (emphasis added).
However, both the principal and the school district were
dismissed from this litigation pursuant to Petitioners’ stipulation.

Petitioners’ characterization of The Talking, Feeling, and
Doing Game as a “treatment tool to be used only by trained
psychiatric professionals” contradicts the game’s statement
indicating that it is to be used by “mental health professionals.”

7

Compare Pet. at 3 with Pet. at 11. Acknowledging that
Respondent is a social worker, as well as a school guidance
counselor, Petitioners erroneously assert that Respondent is not a
“mental health professional” because he is not a psychiatrist. Pet.
at 11.

Petitioners’ Statement of the Case __ includes
misrepresentations for which there is neither support in the
federal court record nor contradictory evidence developed
through discovery in the companion state law case. For example,
the federal court record contains no support for the assertion that
Jason was a “normal, quiet little boy.” Pet. at 3. Testimony of
school officials and expert witnesses in the state court case
supports the opposite conclusion. Petitioners’ complaint also
demonstrates that Jason’s third grade teacher did not worry that
Jason was “too quiet,” but rather expressed concerns about
Jason’s playing with matches and his lack of socialization skills.
Compl.,{ 23; see also Resp., App. C. (Jason is an “angry child.”)

Petitioners place great reliance on the affidavit of their
expert witness, Dr. William A. Decker. Pet. at 15-16. Dr.
Decker’s opinion is far from uncontradicted and remains a legal
conclusion, not “fact.” Dr. Decker’s affidavit was submitted to
the District Court nearly five months after entry of summary
judgment. The District Court noted that Petitioners were “simply
trying to reargue positions that this Court rejected or are
attempting new arguments that should have been raised earlier.”
Pet., App. atC-3. Dr. Decker’s “opinions” were also submitted to
the state court, which nonetheless dismissed Petitioners’ claims
against Respondent. Resp., App. A.

SUMMARY OF THE ARGUMENT

This case presents no issue appropriate for this Court’s
exercise of discretionary jurisdiction because it does not involve
an important or unresolved constitutional issue, nor does it

conflict with rulings of the Circuit Courts. Petitioners’ federal
statutory claim was dismissed pursuant to stipulation and order,
and was never appealed. The asserted conflict with state
statutory provisions has neither been pled nor appealed.
Respondent is also entitled to qualified immunity.

The decisions of the lower courts are not erroneous. The
District Court declined to constitutionalize a tort case. Relying
on this Court’s long-standing reluctance to interfere with the
operations of the public schools, the District Court identified
“common sense” reasons why it should not recognize Petitioners’
claim as a fundamental right protected by the Constitution. The
Sixth Circuit affirmed this decision without opinion.

REASONS FOR DENYING THE WRIT
I.

PETITIONERS HAVE NOT IDENTIFIED ANY
LEGITIMATE BASIS FOR THIS COURT TO EXERCISE
ITS DISCRETION TO GRANT CERTIORARI.

Petitioners fail to satisfy the criteria traditionally applied by
this Court in determining whether to grant certiorari. This case
involves no important or unresolved constitutional issue.
Petitioners have not demonstrated that the unpublished decisions
of the lower courts are inconsistent with decisions of this Court,
nor have Petitioners identified any conflict among the Circuit
Courts regarding the issue involved in this case — Petitioners’
right to privacy. The asserted “conflict” with federal and state
statutes is not before this Court.

The facts in this litigation are sufficiently unique so that the
precedential value in the unpublished decisions of the District
Court and Sixth Circuit is likely to be minimal. The issue

9

presented by Petitioners has arisen only once and has no impact
beyond the immediate parties. Because Respondent is entitled to
qualified immunity, further discovery or a trial on the merits is
precluded.

A. This Case Does Not Involve an Important or Unresolved
Constitutional Issue.

The District Court acknowledged the unusual circumstances
of Petitioners’ cause of action:

Both parties agree that no court has ever
recognized a right to privacy in a factual
situation similar to the case before the Court.
This, of course, does not mean that no such
right exists. Instead, the Court must look to
analogous situations in order to determine if a
righi to privacy exists here.

Pet., App. at A-5. In its effort to “determin[e] the scope of the
constitutionally protected right to privacy,” the District Court
carefully considered the cases cited by Petitioners. Pet.,
App. at A-5 to A-7. However, noting this Court’s posture in
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) and
New Jersey v. T.L.O., 469 U.S. 325, 342, n.8 (1985), the District
Court observed that “when dealing with the rights of students,
courts have been less willing to find a broad right of privacy.”
Pet., App. at A-7. The District Court then analyzed Petitioners’
claim in light of decisions from this Court and other federal courts
relative to student rights in the school. Pet., at A-7 to A-12.

The District Court’s observations were reinforced last term
by this Court in Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386
(1995). Examining the constitutional privacy interest of a junior
high school student who declined to submit to random urinalysis

10

testing as a condition of his participation in school sports, this
Court held that the Constitution “does not protect all subjective
expectations of privacy, but only those that society recognizes as
‘legitimate.’” Id. at 2391 (citing New Jersey v. T.L.O., 469 U.S. at
338). Finding that certain privacy expectations vary with context,
this Court recognized the special circumstances innate to our
Nation’s public schools and held that “while children assuredly
do not shed their constitutional rights . . . at the schoolhouse gate,
. .. the nature of those rights is what is appropriate for children in
school.” Vernonia, 115 S. Ct. at 2391-92 (citations omitted).
Moreover, “ ‘students within the school environment have a
lesser expectation of privacy than members of the population
generally.’ ” Vernonia, 115 S. Ct. at 2392 (quoting New Jersey v.
T.L.O., 469 U.S. at 348 (Powell, J., concurring)).

This Court’s decisions regarding a familial right to privacy,
relied on by Petitioners, are restricted to circumstances in which
due process considerations were triggered by state proceedings
which irrevocably severed the relationship between parent and
child: Santosky v. Kramer, 455 U.S. 745 (1982);* statutorily
presumed that unwed fathers are neglectful, Stanley v. Illinois,
405 U.S. 645 (1972); or interfered with a parental decision to
commit a child to state mental health facilities, Parham v. J.R.,
442 U.S. 584 (1979).

Petitioners also rely on cases which address a statute or local
ordinance imposing criminal sanctions: finding unconstitutional
a statute that prohibited teaching any foreign language beyond
the eighth grade, Meyer v. Nebraska, 262 U.S. 390 (1923);
finding unconstitutional a statute which imposed a criminal
penalty on a parent for not sending a school-age child to school,
Pierce v. Society of Sisters, 268 U.S. 510 (1925);° upholding the

4. Petitioners miscite Santosky, supra, as 455 U.S. 743. Pet. at 8.

5. The cited language in Pierce, supra, relied upon by Petitioners is at
534-35. Pet. at 8.

1]

conviction under a state child labor law of a woman who allowed
her young niece to sell religious tracts on public sidewalks,
Prince v. Massachusetts, 321 U.S. 158 (1944); and finding
unconstitutional a housing ordinance which limited occupancy to
members of a single family, Moore v. City of East Cleveland,® 431
U.S. 494 (1977).

Despite the dicta in those cases regarding parental
prerogatives in child rearing, this Court noted that the rights of
parents or the family are not beyond limitation or regulation. See,
e.g., Prince, 321 U.S. at 166; Moore, 431 U.S. at 499. These are
constitutionally significant distinctions, explicitly recognized by
the Courts that authored those opinions. They do not provide a
basis for this Court to require, as a matter of constitutional law,
that a school official first obtain “written, full, and informed
consent” from parents or guardians before meeting with a
student. Pet. at 11.

B. No Conflict with the Circuit Courts Has Been Identified.

Without citation, Petitioners assert that “[djecisions of
courts in all circuits, including the Sixth Circuit, are in conflict
with the decision in the instant case.” Pet. at 5. However, it is
clear that no such intra-circuit or inter-circuit conflicts exist. The
Sixth Circuit affirmed the District Court’s decision in this case
and found no conflict within the Sixth Circuit. Pet., App. E.
Petitioners’ perceived intra-circuit conflict was never raised
through a request for re-hearing or hearing en banc.

The only Circuit Court case cited in the Petition is Arnold v.
Board of Educ., 880 F.2d 305 (11th Cir. 1989), upon which the
District Court relied to support its decision to dismiss Petitioners’
privacy claim. Pet., App. at A-14toA-15. Petitioners attempt to

6. Petitioners erroneously refer to this case as “City of Cleveland.” Pet.
at 6.

12

distinguish Arnold from the present case based on the age
differences of the children involved and on the alleged
“coercion” used so Jason Newkirk would not inform his parents
about the counseling. Jd. at A-15. Legal distinctions relative to
age level are generally set by the legislative branches of
government. As for the alleged “ coercion,” the District Court
found:

Here, there is no such “coercion” claim, nor is
there any evidence that defendants “coerced”
Jason into counseling sessions with Mr. Fink.
Plaintiffs allege, without any evidentiary
support, that Mr. Fink said to Jason, “do not
tell your parents,” presumably about the
counseling sessions. I do not believe that this
unsupported factual statement, if true, rises to
the level of “coercion” under Arnold, supra.

Pet., App. at A-14, n.9. The fact that Petitioners disagree with the
District Court’s conclusion does not create 2 conflict among the
Circuit Courts, particularly when only one Circuit Court case has
been cited. Petitioners have not established the existence of an
inter-Circuit conflict, nor the importance of resolving this
illusory conflict.

C. No Cause of Action Based on Federal or State Statutory
Provisions Has Been Pled, Appealed, or Identified as
Conflicting with the Constitution.

Petitioners urge this Court to grant certiorari to resolve the
“conflict with federal statutory and Constitutional provisions.”
Pet. at 5. Without citation, Petitioners also refer to “federal
legislation” relative to informed consent from parents which is
allegedly necessary for a minor to obtain health care. Pet. at 5, 11,
15, 16-17. Even if such authority had been offered, no cause of
action under this phantom federal legislation was ever pled.

13

Although the complaint initially included a claim for violation of
the Protection of Pupil Rights Amendment, 20 U.S.C. § 1232h,
this claim was voluntarily dismissed pursuant to stipulation and
order. Resp., App. B. Petitioners did not seek appellate review of
this federal statutory claim.

Petitioners similarly assert that the District Court’s decision
conflicts with state law regarding parental consent. Pet. at 11,15,
16-17. Petitioners cite to three Michigan statutory provisions’
regarding hospital treatment of emotionally disturbed minors,
surgery for mental health patients, and the right of parents to
obtain medical records of their minor children. Pet. at 15.
Petitioners have never asserted these statutory provisions as the
basis for a cause of action in this case, perhaps because hospital
care and surgery are far from commensurate with the work of Mr.
Fink, a school guidance counselor.

The constitutional separation of powers requires Congress
and the state legislatures to conform theiz legislation to this
Court’s view of the Constitution. However, Petitioners confuse
this Court’s role with those of Congress and the state legislatures
and, on the issue of consent for health care treatment of minors,
invite this Court to conform its view of the Constitution to federal
and state statutes. Because such action results in the “tail
wagging the dog,” Petitioners’ inappropriate invitation should be
declined.

D. Respondent Is Entitled to Qualified Immunity.

The District Court found that Petitioners did not state a claim
for violation of their constitutional privacy right. This case was
summarily dismissed and the issue of qualified immunity raised
in Respondent’s motion for summary judgment was not

7. Petitioners miscite Section 716 of the Michigan Public Health Code
(Mich. Comp. Laws Ann. 333.1716) as M.C.L. 300.1716. Pet. at 15.

14

addressed. Qualified immunity shields public officials
performing discretionary functions from liability for civil
damages insofar as their conduct does not violate “clearly
established” statutory or constitutional rights of which a
reasonable person would have known. Davis v. Scherer, 468 U.S.
183, 194 n.12 (1984). The test is an objective standard.
Resolution of qualified immunity is a question of law. Mitchell v.
Forsyth, 472 U.S. 511,526 (1985).

In this case, the District Court noted that it had difficulty
“determining Petitioners’ actual privacy claims.” Pet., App. at A-
11,n.4. Yet, it is well established that the constitutional right must
not be stated in general terms, but must be sufficiently
particularized to place potential defendants on notice that their
conduct is probably unlawful. Anderson v. Creighton, 483 U.S.
635, 640 (1987). The fact that the District Court was unable to
ascertain a constitutional claim alone shows that the right
asserted by Petitioners was neither “sufficiently particularized”
nor “clearly established,” such that Respondent would have
known his conduct was unlawful. Even if this Court granted
certiorari and reversed the rulings of the lower courts, the
viability of Respondent’s qualified immunity would preclude
further discovery or even a trial on the merits. Harlow v.
Fitzgerald, 457 U.S. 800, 817-18 (1982).

Il.

THE DECISIONS OF THE LOWER COURTS ARE
NOT ERRONEOUS.

Review on certiorari is also inappropriate in this case
because the reasons articulated by the District Court for
dismissing Petitioners’ claim, as affirmed by the Sixth Circuit,
are noterroneous.* The District Court demonstrated remarkable

8. Denying Petitioners’ motion to amend or alter judgment, the District
(Cont'd)

15

clairvoyance in relying, in part, on Acton v. Vernonia Sch. Dist.
47J, 796 F. Supp. 1354, 1361 (D. Or. 1992) (upholding random
drug testing of student athletes, the court stated, “courts have
acknowledged that the public school is a unique setting in which
the constraints of the Fourth Amendment are ‘relaxed.’”) Pet.
App. at A-8. Last term, this Court upheld that ruling. Vernonia
Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995). See discussion
supra.

The cases cited by Petitioners do not suggest a different
outcome. The courts below reached the correct result through a
careful analysis of case law. The lower courts appropriately
rejected Petitioners’ invitation to constitutionalize a tort case by
creating a new niche in privacy law. Instead, the courts adopted a
common sense interpretation of the Constitution which
recognized the unique circumstances of this case and the long-
standing position of the federal judiciary not to interfere with the
operations of the public schools.

A. Tort Allegations Should Not Be Constitutionalized.

This Court is neither an arbiter of state tort law claims nor a
regulator of professional licensing matters. Petitioners urge this
Court to constitutionalize a tort or licensing matter based on
Respondent’s alleged refusal “to follow the law regarding proper
and informed consent for psychological health care of minors.”
Pet. at 6. Such circumstances do not justify intervention by this
Court and are more appropriate for review by a state court or
administrative agency.’

(Cont'd)

Court found that Petitioners were rearguing positions that the Court rejected or
“attempting new arguments that should have been raised earlier.” Pet.,
App. at C-3. The District Court, however, found “no clear error in its original
Opinion relative to the dismissal of the privacy claim.” /d.

9. The District Court noted that although no constitutional violation was
(Cont'd)

16

This Court has previously rejected constitutional claims
which would “impose federal duties that are analogous to those
traditionally imposed by state tort law.” Collins v. Harker
Heights, 503 U.S. 115, 128 (1992). See also Daniels v. Williams,
474 U.S. 327, 332 (1986) (holding that the Constitution “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”); Baker v. McCollan, 443 U.S. 137, 146 (1979)
(stating that because Section 1983 imposes liability for violations
of constitutional rights, not for violations of duties of care arising
out of tort law, remedy for the latter type of injury “must be
sought in state court under traditional tort-law principles”);
Ingraham v. Wright, 430 U.S. 651, 672 (1977) (holding that
“traditional common-law remedies are fully adequate to afford
due process” even though a student has a liberty interest from
bodily restraint and punishment); Paul v. Davis, 424 U.S. 693,
701 (1976) (rejecting 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”). This case presents no reason for this Court to depart
from these holdings.

B. Federal Courts Should Not Interfere with the Operations
of the Public Schools.

Petitioners’ case involves an issue which should be
addressed at the state and local level, and not by the federal
courts. Local control over public schools is one of this Nation’s
most deeply rooted and cherished traditions. Milliken v. Bradley,

(Cont'd)

presented, such a finding “does not preclude a holding by a different court that
defendants may have committed a common law tort against plaintiffs.” Pet.,
App. at A-13,n.7 and A-16, n.13. Petitioners’ tort claims (invasion of privacy,
intentional infliction of emotional distress, and medical malpractice) were
subsequently dismissed by the State Court. Resp., App. A.

17

418 U.S. 717, 741-42 (1974). Because the dispute in this case
does not go beyond the constitutional pale, this Court should not
interfere with the operations of the public schools.

This Court has long recognized that local schoo! authorities
have broad discretion in the management of school affairs. In
Epperson v. Arkansas, 393 U.S. 97, 104 (1968), this Court
reaffirmed that “public education in our Nation is committed to
the control of state and local authorities” and that federal courts
“do not and cannot intervene in the resolution of conflicts which
arise in the daily operation of school systems and which do not
directly and sharply implicate basic constitutional values.” In
Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 507
(1969),"° this Court noted that it has “repeatedly emphasized. . .
the comprehensive authority of the States and of school officials
... to prescribe and control conduct in the schools.” In New
Jersey v. T.L.O., 469 U.S. 325, 340 (1985), this Court recognized
that the special nature of the school setting “requires some easing
of the restrictions” regarding certain constitutional parameters.
Because “[j)udicial interposition in the operation of the public
school system of the Nation poses problems requiring care and
restraint,” Epperson, 393 U.S. at 104, this Court should similarly
exercise restraint and decline to grant certiorari in a matter which
is more appropriately addressed by state and local authorities.

In the present case, the local school authorities responded to
Petitioners’ concerns. The school superintendent reviewed
Petitioners’ concerns and formed a committee to develop policy
language, for the Board of Education’s consideration, regarding
counseling roles and the use of supplemental materials. R. 162.
The superintendent’s letter to Petitioners, in part, stated:

I have explored the concerns you have levied

10. Petitioners miscite Tinker, supra, as 383 U.S. 503. Pet. at 7.

18

against Mr. Michael Fink in his dealing with
your son, Jason. I have listened to both you
and Mr. Fink relative to what was said and
understood in your meetings. I must assume
that both you and Mr. Fink are sincere and
that communication toward developing an
understanding did not occur. However, I do
not fee] that Mr. Fink had any intent other
than to assist Jason. Had he felt that he was
not supposed to work with Jason, he would
not have scheduled the meeting with you in
June [1990]. You have indicated that you do
not want Mr. Fink to counsel with Jason and
Mr. Fink acknowledged your request in
writing in June. That was reaffirmed during
our meeting in September [1990].

R. 163. Given the responsiveness of local school authorities, it is
not appropriate for the federal courts to intervene. It is “not the
role of the federal courts to set aside decisions of school
administrators [even those] which the court may view as lacking
a basis in wisdom or compassion.” Wood v. Strickland, 420 U.S.
308, 326 (1975).

C. The Constitution Should Be Interpreted with Common
Sense.

Common sense also dictates that this Court deny certiorari.
After all, “[c]ommon sense requires that the Constitution must be
interpreted in the light of certain facts, which are inherent in the
human condition.” Bahr v. Jenkins, 539 F. Supp. 483, 487 (E.D.
Ky. 1982). Here, the District Court interpreted a student’s right to
privacy in light of “common sense” considerations which are
intrinsic to the operation of public schools. The District Court
provided at least three common sense reasons for not requiring

19

school counselors to receive parental consent before working
with students: (1) a child may be having difficulty with his or her
parents (or may be a victim of abuse);'! (2) schools often deal
with a student who is a discipline or behavioral problem by
sending the student to a counselor; and (3) counselors are often
under a statutory obligation not to reveal the confidence of their
relationships with students.'’* Pet., App. at A-15 to A-16. The
District Court concluded that it is not a violation of constitutional
privacy to “counsel a student because s/he is ‘having trouble
socializing’ with other students (or is a discipline problem).” Jd.
at 16.

Imposing a “privacy rights” analytical framework on
disputes regarding consent in the school setting would create a
“Pandora’s box” of legal issues for school officials and the courts
to consider. Petitioners specifically request that this Court
establish a standard “that school officials exercise zealous care
that nothing is done which could adversely affect the future
relationship of the student with his parents, or his capacity to
partake fully of normal developmental stages and learning
processes.” Pet., at 10. Petitioners have not carefully considered
the practical effect or ramifications of the rule that they would
have this Court adopt. Would this Court establish a “zealous care”
standard? Would this standard differ based on a child’s age? If so,
on what basis would this Court establish the age differential?
Finally, would this standard chill the ability of school officials to

11. The District Court acknowledged that the “record reflects no
allegations of child abuse.” Pet., App. at A-15,n.10.

12. The District Court acknowledged that Michigan has not codified a
student-counselor privilege, although it has codified a “psychologist/
psychiatrist-student” privilege. Mich. Comp. Laws Ann. § 330.1750 (West
1992). However, Michigan statutory law does prohibit a guidance counselor
from disclosing confidential student communications in court, except with
consent. Mich. Comp. Laws Ann. § 600.2165 (West 1989).

20.

speak to the children under their care? This case plainly speaks
volumes about the reasons underlying the federal court’s
reluctance to intervene in day-to-day school operations.

Petitioners also claim a violation of their privacy right
because Mr. Fink “initiated treatment” by reading to Jason from
The Kids’ Book of Questions. Compl., | 26; Pet., at 12. This
innocuous book was mentioned in a Chicago Tribune article
about activities for kids while traveling:

Put on your thinking cap with “The Kids’
Book of Questions” by Gregory Stock. Look
for it at the library or a bookstore. (It’s $4.95.)
It has 260 fun, and sometimes serious,
questions — with no right or wrong answers.
Here are some examples: “Would you eat a
worm sandwich if doing so meant that next
week you could appear on your favorite TV
show?” or “If you could be invisible for a day,
what would you do?” Take turns reading and
answering questions.

Candace Purdom, Road Trip Ahead? Games Bring Boredom toa
Screeching Halt, Chi. Trib., August 3, 1993, § C at5. Acommon
sense interpretation of the Constitution wouid not conclude that a
teacher violates the Constitution by reading excerpts from this
book to a student.

Recognizing the “ever-expanding duties of schoolteachers,”
this Court has noted that “[t]here is an ongoing relationship, one
in which the teacher must occupy many roles — educator,
adviser, friend, and, at times, parent-substitute. It is rarely
adversary in nature... .” Vernonia, 115 S. Ct. at 2396 (quoting
Goss v. Lopez, 419 U.S. 565, 594 (1975) (Powell, J., dissenting)
(footnote omitted)). Teachers, counselors, administrators, and

21

coaches meet with students every day to discuss matters which
range from the mundane to matters of life and death. If school
officials were subject to constitutional liability in every
encounter with a student, these important tasks would be
infinitely more complex and so severely defined or regulated as
to be unachievable. Respondent submits that the Constitution
does not require this result.

CONCLUSION

Because this case presents no issue appropriate for this
Court’s review, and because the lower courts’ holdings were not
in error, Petitioners’ Writ of Certiorari is unjustified and,
therefore, should be denied.

Respectfully submitted,

LISA L. SWEM

Counsel of Record

DONALD J. BONATO

THRUN, MAATSCH & NORDBERG, P.C.
Attorneys for Respondent

501 South Capitol Avenue - Suite 500
Lansing, Michigan 48933

(517) 484-8000

October 11, 1995

la

APPENDIX A — REFERRAL TO CHILD GUIDANCE
CONSULTANT DATED NOVEMBER 3, 1989

REFERRAL TO CHILD GUIDANCE CONSULTANT
Student(s) name(s): Jason Newkirk

Person Making Referral: Jackie Killingsworth

Date: 11/3/89

Initial request:

_y_ individual student need ___. class observation

___. small group need ___. individual observation

___. whole class need ___.__ Student request

___. peer relationship need ___. parent consultation
teacher consultation

other, please specify

Would you please describe and explain your concern(s) below:

Jason is an angry child. He needs to talk, identify his anger
and how to talk about his feelings and concerns.

Jason needs a good friend.
Example: If he has a good day. What made it go well -—

If you have a specific request or expectation of me would you also
explain below:

Be his friend and be there for him. I don’t want (for him) ail
his eggs in one basket.

2a

APPENDIX B—STIPULATION AND ORDER
FILED MARCH 28, 1994

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN

CASE NO. 1:91-CV-563

RICHARD A. ENSLEN
U.S. DISTRICT JUDGE

JASON NEWKIRK, by Next Friends, DANIEL NEWKIRK and

NANCY NEWKIRK and DANIEL NEWKIRK and NANCY
NEWKIRK,

Plaintiffs,
v.
EAST LANSING PUBLIC SCHOOLS, DR. WILLIAM
MITCHELL, SALLY MCCLINTOCK, JACKIE
KILLINGSWORTH, ANN BLOOMQUIST and MICHAEL
FINK,

Defendants.

David R. Melton (P38986)
Attorney for Plaintiffs

THE RUTHERFORD INSTITUTE
OF MICHIGAN

4565 Wilson Ave., Ste. 110
Grandville, MI 49418

(616) 538-9300

3a
Appendix B

Richard E. Holmes (P42114)

SMITH, HAUGHEY, RICE & ROEGGE
Attorney for Defendants

East Lansing Public Schools,

Dr. William Mitchell, Sally

McClintock, Jackie Killingsworth,

and Ann Bloomquist

200 Calder Plaza Building

Grand Rapids, MI 49503

(616) 774-8000

Donald J. Bonato (P23244)

Lisa L. Swem (P4205 1)

THRUN, MAATSCH AND NORDBERG, P.C
Attorneys for Defendant

Michael Fink

501 S. Capitol, Suite 500

P.O. Box 40699

Lansing, MI 48901

(517) 484-8000

STIPULATION AND ORDER FOR DISMISSAL

NOW COME the Plaintiffs Jason Newkirk, by Next Friends
Daniel Newkirk and Nancy Newkirk and Daniel Newkirk and
Nancy Newkirk, by and through their counsel David R. Melton,
and Defendant Michael Fink by and through his counsel Thrun,
Maatsch and Nordberg, P.C. to hereby stipulate and agree that the
remaining count in the above-captioned cause of action be
dismissed as to Defendant Michael Fink, in both his individual
and official capacities, with prejudice and without costs to either

party.

Dated: 3-21-94

Dated: 3-21-94

Dated: 3-21-94

4a
Appendix B

s/ David R. Melton

David R. Melton (P38936)

THE RUTHERFORD INSTITUTE
OF MICHIGAN

Attorney for Plaintiffs

s/ Richard E. Holmes

Richard E. Holmes (P38936)

SMITH, HAUGHEY, RICE & ROEGGE
Attorney for Defendants

East Lansing Public Schools,

Dr. William Mitchell, Sally

McClintock, Jackie Killingsworth,

and Ann Bloomquist

s/ Lisa L. Swem

Lisa L. Swem (P42051)

Donald J. Bonato (P23244)

THRUN, MAATSCHAND NORDBERG, P.C.
Attorneys for Defendant

Michael Fink

Sa
Appendix B
ORDER
At a session of said Court, held in the City of
Kalamazoo, State of Michigan, on this the 28th day
of March, 1994.
PRESENT: HONORABLE RICHARD A. ENSLEN

IT IS SOORDERED.

s/ Richard A. Enslen
Hon. Richard A. Enslen

6a

APPENDIX C — FINAL JUDGMENT AND ORDER
DATED DECEMBER 13, 1994

STATE OF MICHIGAN
INGHAM COUNTY CIRCUIT COURT

CASE NO. 92-72034-AZ

HON. CAROLYN STELL
CIRCUIT COURT JUDGE

JASON NEWKIRK, by Next Friends, DANIEL NEWKIRK and
NANCY NEWKIRK and DANIEL NEWKIRK and NANCY

NEWKIRK

V.

MICHAEL FINK,

David R. Melton (P38986)
Attorney for Plaintiffs

THE RUTHERFORD INSTITUTE
OF MICHIGAN

4565 Wilson Ave., Ste. 110
Grandville, MI 49418

(616) 538-9300

Plaintiffs,

Defendant.

Donald J. Bonato (P23244)
Lisa L. Swem (P42051)
THRUN, MAATSCH AND
NORDBERG, P. C.
Attomeys for Defendant
Michael Fink

501 S. Capitol, Suite 500

P. O. Box 40699

Lansing, MI 48901
(517) 484-8000

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Appendix C

FINAL JUDGMENT AND ORDER GRANTING
DEFENDANT FINK’S MOTION FOR
SUMMARY DISPOSITION

FINAL JUDGMENT AND ORDER

At a session of said Court held in the Circuit
Court for the County of ingham, State of
Michigan, on the 13th day of December,
1994.

PRESENT: HONORABLE CAROLYN STELL, CIRCUIT
COURT JUDGE

At a hearing held November 30, 1994, on Defendant Fink’s
Motion for Summary Disposition, the parties having briefed the
Motion, the Court having been fully advised on the premises, and
the Court having issued its opinion from the bench,

IT IS NOW THEREFORE ORDERED for ihe reasons
stated by the Court on the record, that Defendant Fink’s Motion
for Summary Disposition pursuant to MCR 2.116(C)(10) is
granted as to Count III (intentional infliction of emotiona!
distress) of Plaintiffs’ Amended Complaint.

In that the Court previously granted Defendant Fink’s
Motion for Summary Disposition pursuant to MCR 2.116(C)(8)
as to Counts I (constitutional privacy), II (tortious invasion of
privacy) and IV (medical malpractice), this Order constitutes
final judgment of this action and Plaintiffs’ Amended Complaint
is dismissed in its entirety with prejudice.

IT IS SO ORDERED.

8a

Appendix C
sone s/ Carolyn Stell
CAROLYN STELL, Circuit Judge
Countersigned:
s/ LOLA WILLIAMS
Deputy Clerk
Prepared by:

Lisa L. Swem (P42051)
THRUN, MAATSCH & NORDBERG, P.C.
Attorney for Defendant Fink

Approved as to Form:

s/ David R. Melton

David R. Melton (P8986)

THE RUTHERFORD INSTITUTE
Attorney for Plaintiffs

9a

APPENDIX D — CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

Although Petitioners cite only to the Ninth and Fourteenth
Amendments in their Petition, Count I of Petitioners’ complaint
alleges that Respondent, along with others:

[D]eprived [Petitioners] of their rights under
Article I, Section 9, Clause 3 and the First,
Fourth, Fifth, Ninth and Fourteenth
Amendments of the United States
Constitution, in violation of 42 U.S.C.
§§ 1983 and 1988, rendering [him] liable to
the [Petitioners].

Compl. at 47. Those constitutional and statutory provisions are
set forth below.

Constitutional Provisions
U.S. Const. art I, § 9, cl. 3.

No Bill of Attainder or ex post facto Law shall
be passed.

U.S. Const. amend. I.

Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to
petition the Government for a redress of
grievances.

10a
Appendix D
U.S. Const. amend. IV.

The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shail
issue, but upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.

U.S. Const. amend. V.

No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand
Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual
service in time of War or public danger; nor
shall any person be subject for the same
offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without
due process of law; nor shall private property
be taken for public use, without just
compensation.

U.S. Const. amend. IX.

The enumeration in the Constitution, of
certain rights, shall not be construed to deny
or disparage others retained by the people.

lla
Appendix D
U.S. Const. amend. XIV, § 1.

All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein they reside. No State
shall make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.

Statutory Provision
42 U.S.C. § 1983.

Every person, who under color of any
Statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District
of Columbia, subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution an
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress. For the purposes of
this section any Act of Congress applicable
exclusively to the District of Columbia shall
be considered to be a statute of the District of

Columbia.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2164%3A2. Public record. Not legal advice.